WILLIAM A. MAYHEW, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).
from the District Court of Sheridan County The Honorable John
G. Fenn, Judge
Representing Appellant: Office of the State Public Defender:
Diane Lozano, Wyoming State Public Defender; Kirk A. Morgan,
Chief Appellate Counsel; David E. Westling, Senior Assistant
Appellant Counsel. Argument by Mr. Westling.
Representing Appellee: Peter K. Michael, Wyoming Attorney
General; Christyne M. Martens, Deputy Attorney General;
Caitlin F. Harper, Senior Assistant Attorney General; Samuel
Williams, Assistant Attorney General. Argument by Mr.
DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
A jury found William Mayhew guilty of four counts of
third-degree sexual assault related to his abuse of three
minors during the 1990s and early 2000s. On appeal, Mr.
Mayhew claims the district court erred in admitting photos
and videos as other acts evidence under W.R.E. 404(b). He
also contends that the district court abused its discretion
in admitting evidence not identified in the State's
pretrial disclosure and without proper foundation. We affirm.
Mr. Mayhew presents two issues on appeal, which he frames as
I. Did the trial court abuse its discretion by admitting
evidence pursuant to W.R.E. 404(b) that did not fit an
acceptable purpose and was used solely to prove the character
of the Defendant?
II. Did the trial court abuse its discretion by admitting
evidence not listed in the pretrial proceedings and without
William Mayhew lived near his grown daughter and her family
in Sheridan, Wyoming, starting in the early 1990s. She and
her husband had three daughters: HS, born in 1989; MT, born
in 1992; and ST, born in 1997. In May 2015, MT revealed to
her aunt that Mr. Mayhew, her grandfather, had sexually
abused her and her sisters. MT's aunt informed MT's
father, and he reported the allegations to law enforcement.
Following an investigation, the State charged Mr. Mayhew with
five counts of third-degree sexual assault: two counts for
acts against HS; one count each for acts against MT and ST;
and one count for acts against AR, a boy who grew up in Mr.
Mayhew's neighborhood. Before trial, Mr. Mayhew requested
notice of the State's intent to submit other acts
evidence under W.R.E. 404(b). In response, the State provided
its Rule 404(b) notice, followed by three addenda, which
identified the following other acts evidence the State
intended to introduce:
--testimony by the director of a children's program at a
local church, along with related emails, concerning the
church's 2012 decision to terminate Mr. Mayhew as a
Sunday school instructor for violating the church's
policy against adults transporting children alone;
--testimony by a former director of the Joy Junction
Children's Ministry concerning a 2009 complaint from the
mother of a five-year-old girl that when she picked up her
daughter from a swimming pool activity, she saw that Mr.
Mayhew had her daughter's legs wrapped around him;
--testimony that arresting officers found a box at Mr.
Mayhew's home that contained photos of young girls who
were Joy Junction participants;
--photos and videos of young girls taken by Mr. Mayhew while
participating in children's programs;
--testimony by Mr. Mayhew's wife's younger sister
that in 1962, when she was ten years old, Mr. Mayhew pinned
her against a pillar and rubbed his hands on her crotch area,
and a few weeks later took her to a cabin in the woods where
he fondled her, pinned her down, and tried to remove her
--testimony that in law enforcement's examination of Mr.
Mayhew's computers, it discovered the use of programs and
techniques used in the child exploitive community,
twenty-four media files of children classified as closely
related to child erotica, and 5, 785 files that contained
--testimony by Mr. Mayhew's daughter that he sexually
abused her beginning when she was four years old and
continuing until she was about twelve years old, including
five specific incidents during that period; and
--testimony by Mr. Mayhew's wife that after the local
church terminated him from Sunday school activities, she saw
him burn a collection of photos in their fireplace, and
testimony by HS that she also witnessed the burning of
photos, which her grandmother told her were from Joy
The State offered the other acts evidence for the purposes of
showing Mr. Mayhew's motive, intent, and lack of mistake
or accident. Mr. Mayhew objected to the evidence, and on
December 5, 2017, the district court heard argument on the
State's notice. During the hearing, the State narrowed
its proffered other acts evidence and sought admission only
of Mr. Mayhew's daughter's testimony and the photos
and videos of young girls Mr. Mayhew took while participating
in youth activity programs.
The district court issued an oral ruling, in which it applied
the Rule 404(b)-required factors, which was followed by a
summary written order that found the proffered evidence
admissible. The court found that the evidence was relevant to
Mr. Mayhew's motive and intent, and that its probative
value was not substantially outweighed by its potential for
At trial, the victims of the charged conduct described Mr.
Mayhew's sexual abuse. HS testified that Mr. Mayhew sexually
abused her from the age of five until she was about ten or
eleven years old. She testified that on multiple occasions,
he would have her lie on his bed, face down and clothed, and
he would lie on top of her, bouncing up and down. He called
this the "smooshing game." On other occasions, Mr.
Mayhew had her apply lotion to his erect penis. He also on
multiple occasions directed HS to lie on his bed, unclothed
from the waist down, spread her legs, and touch herself, with
him sometimes moving her hands when she "wasn't
doing it right." HS also described occasions when Mr.
Mayhew would instruct her to use a vibrating massager on her
vagina while he masturbated, would shower with her and wash
her entire body, and would fondle her between her legs while
driving with her in his truck.
During HS's testimony, a letter Mr. Mayhew had written to
HS after she confronted him with her abuse allegations was
admitted into evidence without objection. The letter read,
with the emphasis in the typed original:
I have tried to write a letter to you this past year (some
several pages long) but the words just didn't seem right.
At times I felt I was not worthy to even communicate with
What I found out during this time is I am not a person of
words. Because of my rapid deteriorating health and your
position of me not being able to talk to you, this appears to
be the best communication avenue for me right now.
I just wanted you to know from my heart and soul I am truly
sorry for the verbal and physical abuse I have done to you.
It was wrong, wrong. Please, please forgive me, please.
I am also asking that during my last days that you visit
often and allow my great granddaughter and great grandson
[to] be around me and your grandma together.
MT testified that Mr. Mayhew began sexually abusing her when
she was five or six years old and that the abuse continued
until sometime before she reached puberty. She described
three specific memories of the abuse. The first incident
occurred during a game of dress-up when she was five years
old. Mr. Mayhew had her lie on his bed and use a vibrating
massager on her genital area. On another occasion, Mr. Mayhew
played a blindfold game with MT that required her to guess
the identity of objects while blindfolded, one of which was
his erect penis. The third incident involved a game that Mr.
Mayhew called "squish it." During that game, he had
MT lie on the floor, face up and clothed, and he would lie on
top of her. MT could feel his erect penis when he did this.
AR testified to a single incident of abuse that occurred
during the summer of 1995, when he was about ten years old.
AR lived near the Mayhews and would occasionally visit to
play with their dog. On one such occasion, Mr. Mayhew brought
out a vibrating massager and encouraged AR to use it on
himself. AR testified that Mr. Mayhew initially showed AR how
to use it on his leg and then he encouraged him to move the
vibrator closer to his crotch area. Mr. Mayhew then put his
hand on AR's crotch outside his pants to show him where
to place the vibrator, while saying "Doesn't that
feel good?" AR felt panicky, fled the Mayhew home, and
reported the incident to his father.
In addition to the victims' testimony concerning the
charged conduct, the State presented the other acts evidence
the district court had ruled admissible. Mr. Mayhew's
daughter testified that from the time she was four or five
years old, he would make her wash his erect penis while he
took baths. She also testified to specific incidents of
abuse, including an incident when she was five or six, during
which Mr. Mayhew told her, her sister, and a neighborhood
friend they were going to play doctor and instructed them to
get in a closet. He then called each child out individually,
and when he called her out, he told her to take off her
clothes and lie down, and then proceeded to examine her body,
including her vagina, visually and with his hands.
The daughter described another incident that occurred during
that same timeframe, in which she wet her pants and Mr.
Mayhew ordered her to remove her clothes in front of her
brother and sister and lie on the floor. He then put her in a
diaper, touching her vagina while doing so, and made her wear
nothing but the diaper.
The final incident the daughter testified to occurred when
she was in the third or fourth grade. Mr. Mayhew would
initiate games of hide and seek with the children and during
one such game, he had her sit on his lap when she found him,
and she could feel his erect penis.
[¶14] From the photos and videos the district court had
ruled admissible, nine photos and six videos were offered and
admitted into evidence. The photos were of young girls, most
wearing swimming suits, and a few in shorts or skirts, with a
focus on the girls' lower bodies and genital areas. Of
the six videos admitted into evidence, four of them recorded
clothed young girls straddling a table, with Mr. Mayhew
encouraging them to scoot down the table without the use of
their hands, a maneuver that required the girls to repeatedly
thrust their hips. Another video showed a young girl in a
skirt playing on monkey bars, and the final video was of a
young girl in a park, wearing a skirt and sitting in a way
that showed her underwear, with the recording focused on her
underwear-covered genital area.
Mr. Mayhew testified in his defense. As to the allegations
contained in the other acts testimony of his daughter, he
testified that he was a heavy drinker during his
daughter's youth, and he could not recall that period of
time. Although he could not recall that period, he testified
as follows concerning her allegation that he made her wash
his erect penis when he bathed:
A. One of the elements that stands out to me has to do with
the male private part. And I'm sorry, but I can't say
the name. Private part. I hope you understand what I'm
talking about. That situation that stands out to me deals
with the use of soap on my private part when it's stiff.
For all the men in this room here -
A. My experience has been that it hurts, it hurts because the
soap is - back then all the soaps around were alkalin[e]
based and - it may be like the female private parts, using
that alcohol-based soaps and that to clean is okay, but not
for sensitive areas. And for the use of that is - I
wouldn't have allowed that. I just wouldn't allow
that. It hurts.
Concerning his daughter's allegation that she felt Mr.
Mayhew's erect penis when he had her sit on his lap
during a game of hide-and-seek, Mr. Mayhew testified:
That's an interesting one. We lived on Gilbert. And one
of the fun things we always did was we had fun with the hide
and seek. It's a good thing for Dad. And one of the
instances indicated here was that we had a - in the hide and
seek there was a - if you'd understand, we had specific
spots that we all liked to hide, because they were good spots
to hide. And this particular one had the foundation and the
furnace. And it was narrow, very narrow. In fact, for a
240-pound individual, it was a very tight squeeze to get in
there, but it was a good spot to hide where there wasn't
That particular instance that was presented to the court is
that spot. Because it's so narrow, there's no way -
there's no way that anyone could sit on me because I
couldn't sit because I'd have to stand up because it
was so narrow. And so in that particular case, the closest
that would come to that would be to sit on my knee. If you
understand, if I'm sitting sideways hiding, that would
the only way that somebody could be right with me, touching
me, on me, would be to sit on my knee. Most of the time,
obviously, I would stand up or kneel, but not - there's
no way to lay down. No way to sit on my rear and have
somebody sit on me.
Concerning the photos of children in his possession, Mr.
The purpose of that was really simple. The families involved
were families that, like you and me, we like pictures. We
love pictures and especially of our family. And one of the
things that we did was we took pictures, not only I, but
other teachers, and we did something very simple. Without
charge but under love, we went ahead and we did the pictures,
shots, made prints, and the kids could take them home. The
children could take them home. And response back with that,
as you heard here this morning that parents received them and
it was a great item that was used for our ministry that we
had . . . .
Mr. Mayhew provided no testimony on direct examination
concerning the videos. On cross-examination, he agreed that
he took the videos, that he did not have the capability to
make or provide copies of those to parents, and that he did
not share them with parents of the children in the videos.
With respect to the charged conduct, Mr. Mayhew denied that
he inappropriately touched his granddaughters or AR with his
hand or with a vibrator or that he had any sexual contact
with his granddaughters or AR. Concerning the incident with
AR, he admitted that AR was present on an occasion when he
was using a vibrating massager on his own leg, but he denied
using the massager in a sexual manner or touching AR. He
A. As I was using the massager, [AR] said, "Give me the
massager." And he says, "I'm tough."
And I said, "Well, what do you mean by
He says, "I'm tough."
I says, "Okay. Let's see how tough you are."
And I said what I want you to do is - and I pointed to the
side of his head. And I said, "I want you to go with the
vibrator from your head down to your ankle, and I'd like
to have you do it two times, and we'll see how tough you
Q. And then what happened?
A. Well, he got on his knees and did exactly that, went
from there but only down to his knees, of course, and did it
twice. And I says - I don't know what he said, but I
said, "You are tough."
Concerning the letter of apology he wrote to HS, Mr. Mayhew
Q. . . . And you also admit that you did write that letter to
[HS]; it's your apology?
A. For the verbal and physical abuse. Nothing said about
The jury found Mr. Mayhew guilty of four counts of
third-degree sexual assault, and the district court sentenced
him to consecutive prison terms totaling twenty-eight to
thirty-five years. Mr. Mayhew timely appealed his conviction
to this Court.
Mr. Mayhew contends the nine photos and six videos were
impermissible character evidence and that the district court
therefore erred in admitting them under Rule
404(b). He further claims the district court erred
in admitting the massaging vibrator into evidence. We find no
abuse of discretion in either ruling.
Other Acts Evidence
Standard of Review
Mr. Mayhew preserved his objection when he filed his pretrial
demand for notice of other acts evidence, and we therefore
review the district court's decision for an abuse of
discretion. Swett v. State, 2018 WY 144, ¶ 11,
431 P.3d 1135, 1140 (Wyo. 2018).
A trial court's rulings on the admissibility of evidence
are entitled to considerable deference, and, as long as there
exists a legitimate basis for the trial court's ruling,
that ruling will not be disturbed on appeal. The appellant
bears the burden of showing an abuse of discretion.
Id. (quoting In re GAC, 2017 WY 65, ¶ 32,
396 P.3d 411, 419 (Wyo. 2017)).
Rule 404(b)-Required Analysis
Rule 404(b) governs the admissibility of other acts evidence.
(b) Other crimes, wrongs, or acts. - Evidence of
other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he acted in
conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake
or accident, provided that upon request by the accused, the
prosecution in a criminal case shall provide reasonable
notice in advance of trial, or during trial if the court
excuses pretrial notice on good cause shown, of the general
nature of any such evidence it intends to introduce at trial.
Our precedent mandates a procedure that a trial court must
follow and factors that it must consider in ruling on the
admissibility of other acts evidence. Moser v.
State, 2018 WY 12, ...