from the District Court of Natrona County The Honorable W.
Thomas Sullins, Judge
Devine, Devine Law Office, Laramie, Wyoming; Timothy K.
Newcomb, Appellate Consultation, Laramie Wyoming. Argument by
K. Michael, Attorney General; Christyne M. Martens, Deputy
Attorney General; Russell W. Farr, Senior Assistant Attorney
General; Caitlin F. Harper, Senior Assistant Attorney
General. Argument by Mr. Farr.
DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
Paul Michael Harnetty was an OB/GYN in Casper, Wyoming. A
jury convicted him of sexually assaulting two of his
patients. He contends that there was insufficient evidence to
convict him, the district court erred when it denied his
proposed theory of defense instruction, and the court erred
when it denied his W.R.Cr.P. 34 motion for arrest of
judgment. We affirm.
We rephrase the issues as:
1. Did the State present sufficient evidence that Dr.
Harnetty was in a "position of
2. Did the district court err when it rejected Dr.
Harnetty's proposed theory of defense instruction that
asked the court to instruct the jury on a different crime
than the one the State had charged?
3. Did the district court err when it denied Dr.
Harnetty's post-trial motion for arrest of judgment?
Dr. Harnetty was an OB/GYN at Community Health Center in
Casper, Wyoming. He was K.L.'s and K.C.'s doctor
while both were pregnant.
Dr. Harnetty delivered K.L.'s first child in 2013. K.L.
became pregnant with her second child in April 2015 and
continued to see Dr. Harnetty. Approximately four months into
her pregnancy, during a regular checkup, Dr. Harnetty rubbed
his clothed "genitals against [K.L.'s], put his hand
on [her] stomach, and made a comment about how pregnant women
turn him on."
At a later appointment, K.L. brought her friend along
"just to be on the safe side[.]" When Dr. Harnetty
first walked into the examination room and saw K.L.'s
friend, he asked if K.L. and her friend had ever been
intimate together and whether the two of them would be
interested in having sexual relations with him.
Later, on approximately August 17, 2015, K.L. had another
appointment with Dr. Harnetty to discuss the results of her
ultrasound. Dr. Harnetty wanted to check her cervix to see if
K.L. had "started dilating." While Dr. Harnetty was
checking K.L.'s cervix, she "felt his hand turn, and
then he started . . . rubbing [her] clitoris with his thumb
in a very caressing way." After K.L. gave him a
concerned look, Dr. Harnetty then "turned his hand again
and stuck one of his fingers up [her] anus." K.L.
testified that she had never before had a "rectal exam
done by an OB/GYN." Dr. Harnetty's actions left K.L.
"shocked" and wondering "what the hell just
happened." K.L. attempted to get another OB/GYN, but
could not "because [of her Medicaid] insurance or
because of how far along [she] was." She even considered
using a midwife, but because she had needed an emergency
C-section with her first child, K.L. continued to see Dr.
Near the end of her pregnancy, in approximately October 2015,
K.L. saw Dr. Harnetty for another checkup, and Dr. Harnetty
wanted to check her cervix. Again, Dr. Harnetty "stuck
two fingers up [her] anus." K.L. looked at Dr. Harnetty
before he left the room and he told her, "I just like to
watch the expression on your face." K.L. testified that,
at other appointments, Dr. Harnetty would grab her breasts
over her shirt, "grope" her buttocks, and tell her
that "he wanted to get [her] pregnant."
During the pregnancy, K.L. learned she had low amniotic
fluid. Dr. Harnetty told her that she had a
"high-risk" pregnancy because of her amniotic
fluid. After she had an ultrasound, she received a call from
Community Health in which they told her that "[W]e see
some concerns, so you need to come in this afternoon."
K.L. rushed to the office, "freaking out" and
crying, only to have Dr. Harnetty tell her that he "just
wanted to see [her]." After K.L. called Community Health
and complained about Dr. Harnetty, they found another doctor
for her. The new doctor informed her that she did not have a
high-risk pregnancy, but rather, "a perfect, normal
pregnancy" and did not "check [her] cervix
K.C. also saw Dr. Harnetty at Community Health for her
pregnancy. She was pregnant with twins and had a
"high-risk" pregnancy. During an exam in October
2013, the "first exam," K.C. testified that Dr.
Harnetty did a pelvic exam, and instead of focusing on her
cervix or uterus, Dr. Harnetty used his thumb to "rub
[her] clitoris back and forth" for around three to four
minutes. K.C. felt like Dr. Harnetty was "trying to
arouse [her] instead of focus[ing] on the" purpose of
[¶10] At another exam in December 2013, or January 2014,
the "last exam," K.C. testified that Dr. Harnetty
examined her again to "check on [her]
contractions." And, again, Dr. Harnetty focused instead
on "rubbing against [her] clitoris." K.C. testified
that she was "scared." K.C. had never had an OB/GYN
rub or touch her clitoris during an exam.
K.C. explained that she undressed and allowed Dr. Harnetty to
do the exams on her because he was the doctor and "you
kind of have to." While he was rubbing her clitoris, she
knew "something" was "wrong" but
didn't know how to stop it because of the "delicate
situation [of] being pregnant" and because she had a
high-risk pregnancy. She felt like she had to "get
through" it. She would not have let Dr. Harnetty do
these things to her if "he wasn't [her]
Charges, Verdict, and Sentence
The State initially charged Dr. Harnetty with three counts of
second-degree sexual assault and one count of third-degree
sexual assault against K.L., and three counts of
second-degree sexual assault against K.C. The State charged
the second-degree sexual assaults under Wyo. Stat. Ann.