from the District Court of Natrona County The Honorable W.
Thomas Sullins, Judge
Representing Appellant: Keith R. Nachbar, Keith R. Nachbar,
P.C., Casper, Wyoming.
Representing Appellee: Peter K. Michael, Wyoming Attorney
General; Christyne M. Martens, Deputy Attorney General;
Katherine A. Adams, Senior Assistant Attorney General
[*] , Curtis
M. McNiven, Senior Assistant Attorney General. Argument by
DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
A jury convicted Joshua Ashby Winters of aggravated
kidnapping, sexual abuse of a minor in the first degree, and
sexual abuse of a minor in the second degree. The district
court sentenced him to a total of 80-115 years in prison. He
appeals from his convictions and sentences as well as from
the denial of his Wyoming Rule of Appellate Procedure 21
motion for new trial, which raised various claims of
ineffective assistance of counsel. We affirm.
Mr. Winters raises seven issues on appeal, which we distill
1. Whether Mr. Winters' trial counsel rendered
ineffective assistance of counsel when he failed to (1)
challenge the five-year-old victim's competency; (2)
object to inadmissible hearsay; (3) interview any of the
State's witnesses; and (4) consult or call a DNA expert.
2. Whether the district court abused its discretion in
admitting other acts evidence under Wyoming Rule of Evidence
404(b). 3. Whether there was insufficient evidence to sustain
Mr. Winters' aggravated kidnapping conviction.
4. Whether double jeopardy principles require the sentences
for aggravated kidnapping and sexual abuse of a minor in the
first degree to be merged.
We provide a brief synopsis of the facts here. Other
pertinent facts are included in the discussion of the issues.
On July 18, 2016, five-year-old RH accompanied his nine-year
old brother, TP, his six-year-old brother, M, and a family
friend to the El Marko Bowling Alley in Casper, Wyoming, to
play arcade games. While there, they encountered Mr. Winters,
a carnival worker who had just finished working at the
Central Wyoming Fair & Rodeo. Mr. Winters gave the boys
money to play games. At some point, Mr. Winters claimed he
was missing money. RH and TP helped Mr. Winters look for the
money until they had to leave to report in with their mother
at home. According to TP, Mr. Winters told them they
"have to come back to help him find his money, then he
would give [them] some money." He also told them to tell
their mom he was "a friend." The boys went home,
but RH returned to the bowling alley alone.
It is unclear what occurred at the bowling alley upon
RH's return. What is clear is RH and Mr. Winters
eventually left the bowling alley and ended up at the North
Platte River. Mr. Winters carried RH across the river. Ms.
Kellie Brodrecht, a passing motorist, observed Mr. Winters
and RH in the middle of the river. She testified Mr. Winters
was "struggling to walk" because the water was
"pretty high." She stopped and ran to the point on
the river bank where she could see the man and child. By that
time, the man and child were across the river. The man was
lying on the embankment and the child was in the bushes and
trees. She yelled, "Are you okay?" but neither the
man nor the child heard her so she yelled louder. This time
the child peeked his head out from the trees and looked at
her but did not say anything. The man got up, looked at her,
said "yeah, yeah, thanks," and waved her off. The
man then walked into the trees. Because Ms. Brodrecht had no
reason to believe they were in danger, she left. Once they
were alone, Mr. Winters put his mouth on RH's penis and
penetrated RH's anus with his tongue and penis. Mr.
Winters threatened to kill RH's family if he told anyone
what had happened.
Mr. Winters and RH then walked south on Wyoming Boulevard to
Fairside Road, where Mr. Winters left RH crying on the side
of the road. Shannon Sierra, a passing motorist,
eventually found RH and took him to the Mills police station.
Casper Police Officer Levi Hallock met RH at the police
station. RH's arms, legs, and clothing were covered with
sand, his shorts and the back of his shirt were wet, and his
left cheek was slightly swollen. Officer Hallock transported
him to the Wyoming Medical Center, where he was seen by a
Sexual Assault Nurse Examiner (SANE nurse). The SANE nurse
found no physical evidence or injuries indicating a sexual
assault or anal penetration had occurred, which she testified
was "common." After the exam, RH was transported to
the Child Advocacy Project (CAP) center for a forensic
interview (CAP interview). RH returned the next morning for a
second CAP interview. Later DNA testing of RH's penile
swabs was inconclusive as to the presence of Mr. Winters'
DNA, but similar testing of RH's anal swabs revealed Mr.
Winters to be the major contributor of the mixture of DNA
The State charged Mr. Winters with aggravated kidnapping
under Wyo. Stat. Ann. § 6-2-201(a)(ii), (b)(ii), and (d)
(LexisNexis 2017) (Count 1), sexual abuse of a minor in the
first degree under Wyo. Stat. Ann. § 6-2-314(a)(i) and
(c) (LexisNexis 2017) (Count 2), and sexual abuse of a minor
in the second degree under Wyo. Stat. Ann. §
6-2-315(a)(ii) and (b) (LexisNexis 2017) (Count 3). At trial,
Mr. Winters admitted he met RH at the bowling alley and they
ended up in the river. He claimed, however, RH followed him
to the river, RH fell in the river, and he went in the water
to save him. They came out of the river on the other side.
Mr. Winters said he passed out on the river bank for 10-20
seconds and, when he came to, he saw RH walking away. Mr.
Winters got up, grabbed RH's hand, and walked with RH to
a pawn shop where Mr. Winters thought he had left his bags.
He left RH in the parking lot while he went into the shop.
When he came out, RH was no longer in the parking lot. Mr.
Winters explicitly denied ever touching RH in a sexual
manner. He also claimed to have been drinking heavily that
The jury convicted Mr. Winters of all charges. The district
court sentenced Mr. Winters to (1) not less than 50 years nor
more than 70 years on Count 1; and (2) not less than 30 years
nor more than 45 years on Count 2, which was merged with
Count 3 for purposes of sentencing. The sentences on Counts 1
and 2 were ordered to run consecutively. Mr. Winters filed a
timely notice of appeal challenging his convictions and
sentences (Appeal No. S-17-0314).
Subsequently, Mr. Winters filed a W.R.A.P. 21 motion, seeking
a new trial based on ineffective assistance of trial counsel.
After holding a hearing, the district court denied the
motion. Mr. Winters appealed from that denial (Appeal No.
S-18-0247). We consolidated both appeals.
Mr. Winters raises various claims of ineffective assistance
of counsel. He also argues the district court abused its
discretion in admitting other acts evidence under W.R.E.
404(b); there was insufficient evidence supporting his
aggravated kidnapping conviction; and double jeopardy
principles required his sentences for aggravated kidnapping
and first-degree sexual abuse of a minor to be merged. We
start with his complaints against trial counsel.
Ineffective Assistance of Counsel
A criminal defendant has the right to the effective
assistance of counsel. U.S. Const. amend. VI; Wyo. Const.,
art. 1, § 10; Strickland v. Washington, 466
U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984)
("[T]he right to counsel is the right to the effective
assistance of counsel." (quotations omitted)). When a
defendant claims he has been denied that right, he must show
both that counsel's performance was deficient,
and he was prejudiced as a result. Galbreath v.
State, 2015 WY 49, ¶ 5, 346 P.3d 16, 18 (Wyo.
2015); Strickland, 466 U.S. at 687, 104 S.Ct. at
2064. Counsel acts deficiently when he "fail[s] to
render such assistance as would have been offered by a
reasonably competent attorney." Galbreath,
¶ 5, 346 P.3d at 18 (quoting Bloomer v. State,
2010 WY 88, ¶ 18, 233 P.3d 971, 976 (Wyo. 2010)).
"Prejudice occurs when there is 'a reasonable
probability that, absent counsel's deficient assistance,
the outcome of [appellant's] trial would have been
different.'" Id. (quoting Bloomer,
¶ 18, 233 P.3d at 976). A failure to establish one of
the two prongs dooms an ineffective assistance of counsel
claim. Dettloff v. State, 2007 WY 29, ¶ 19, 152
P.3d 376, 382 (Wyo. 2007).
Ineffective assistance of counsel claims are "mixed
questions of law and fact." Griggs v. State,
2016 WY 16, ¶ 37, 367 P.3d 1108, 1124 (Wyo. 2016). We
defer to a district court's factual findings unless
clearly erroneous; we review de novo the court's legal
conclusions, including whether counsel's conduct was
deficient and whether defendant was prejudiced as a result.
Id. We "invoke a strong presumption that
counsel rendered adequate assistance and made all significant
decisions in the exercise of reasonable judgment. [T]he
paramount determination is whether, in light of all the
circumstances, trial counsel's acts or omissions were
outside the wide range of professionally competent
assistance." Schreibvogel v. State, 2010 WY 45,
¶ 47, 228 P.3d 874, 889 (Wyo. 2010) (citations and
Mr. Winters claims trial counsel was constitutionally
ineffective for failing to (1) challenge RH's competency,
object to the admission of hearsay testimony, (3) interview
any of the State's witnesses, and (4) consult and call a
Failure to Challenge RH's Competency
Six months before trial, trial counsel told the district
court at a scheduling conference he "believe[d]" he
would be filing a motion to challenge RH's competency as
a witness due to RH's age and the concerns he had after
viewing the CAP interviews. But trial counsel "changed
[his] mind" and never filed a motion for a competency
hearing because he believed RH was competent to testify. He
explained at the Rule 21 hearing that although the CAP
interview gave him "the impression [RH] had some issues
with memory," he believed those issues were "no
different than [those] an adult might have in the same
Mr. Winters now faults trial counsel for failing to challenge
RH's competency to testify. According to him, RH's
testimony, as well as the statements he made in the CAP
interviews, in particular the second CAP interview,
clearly demonstrate RH's inability to understand,
receive, remember, and narrate impressions of what occurred.
Moreover, while the district court made some inquiry as to
whether RH understood an oath is a promise to tell the truth,
Mr. Winters argues it failed to make any inquiry as to
whether RH understood what it means to tell the truth and the
importance of doing so at trial. Finally, he tells us
counsel's failure to challenge RH's competency as a
witness was prejudicial because RH was the only eye-witness
(besides himself) to the events.
"[Wyoming Rule of Evidence 601] presumes . . .
'every person is competent to be a witness except as
otherwise provided in these rules.'" Hutchinson
v. State, 2012 WY 155, ¶ 5, 290 P.3d 174, 176 (Wyo.
2012) (quoting W.R.E. 601). Indeed, "few persons are
inherently incapable of testifying in some manner which is
potentially useful." Larsen v. State, 686 P.2d
583, 585 (Wyo. 1984). That includes children, as it is
intelligence, not age, which is the deciding factor in
determining a witness's competency to testify.
Id. at 585-86 ("The age of the victim witness
in this case [three at the time of the abuse and five at the
time of trial] does not mandate a finding of
incompetency."); Mersereau v. State, 2012 WY
125, ¶ 6, 286 P.3d 97, 104 (Wyo. 2012) ("[A]
witness' intelligence, not his age, should guide a court
in determining whether the witness is competent to
testify."), abrogated on other grounds by Rodriguez
v. State, 2019 WY 25, ¶¶ 28, 37, 435 P.3d 399,
407-10 (Wyo. 2019). The question is whether the child can
"'understand, receive, remember and narrate
impressions and is sensible to the obligations of the oath
taken before testifying.'" Mersereau,
¶ 6, 286 P.3d at 104 (quoting Simmers v. State,
943 P.2d 1189, 1199 (Wyo. 1997)). In deciding that question,
we consider whether the child has:
(1) an understanding of the obligation to speak the truth on
the witness stand; (2) the mental capacity at the time of the
occurrence concerning which he is to testify, to receive an
accurate impression of it; (3) a memory sufficient to retain
an independent recollection of the occurrence; (4) the
capacity to express in words his memory of the occurrence;
and (5) the capacity to understand simple questions about it.
Larsen, 686 P.2d at 585 (quotations omitted).
"Considering the entirety of RH's testimony,"
the district court concluded "RH was clearly competent
to testify." As a result, Mr. Winters had failed to show
trial counsel's performance in not contesting RH's
competency to be deficient or prejudicially so. In so
deciding, the court did not explicitly address the
Larsen factors. However, at the Rule 21 hearing, the
State cross-examined trial counsel concerning how each factor
was satisfied in this case. Reviewing RH's testimony as a
whole, as we must, cf. Young v. State, 2018 WY 53,
¶ 15, 418 P.3d 224, 228 (Wyo. 2018) (in deciding whether
the district court properly ruled a child witness was
competent to testify, "[w]e do not single out isolated
statements, but look at the child's entire
testimony"), we agree RH satisfied the Larsen
factors. His testimony (which Mr. Winters primarily relies
upon to establish deficient performance) confirms trial
counsel's belief prior to trial that RH was competent to
testify and thereby demonstrates no possible prejudice to Mr.
Winters from counsel failing to challenge RH's
Prior to RH testifying, the district court stated: "I
think the [c]ourt should probably make a preliminary inquiry,
especially relative to his understanding the oath and
competency to proceed." It then proceeded to ask RH how
old he was, whether he was in school and its location,
whether he understood he had "been called as a witness
in this case to testify," whether he understood what an
oath was, whether an oath is "a promise to tell the
truth," whether he would be willing to promise to tell
the truth, and whether he understood he was "being asked
to testify about things that were last summer." RH
responded he was six-years-old and in school "[a]t
Michigan," understood why he was there, knew an oath was
a promise to tell the truth, and was willing to promise to
tell the truth. He then took the oath "solemnly
swear[ing] . . . that [his] testimony will be the
truth, the whole truth, and nothing but the truth."
(Emphasis added). Considering the judge's questions and
RH's answers in their entirety, RH understood the
obligation to speak the truth at trial.
RH's trial testimony also shows he had the mental
capacity at the time of the occurrence to receive an accurate
impression of it and a memory sufficient to retain an
independent recollection of the occurrence. He knew his age,
his family members, the ages of his brothers (TP and M), what
grade he was in, the location of his school in Michigan,
where and who he lived with (in Michigan with "Shantel
[his stepmom] and my daddy"), and the number and names of
his pets. He also remembered the incident and certain unique
details surrounding it, which were corroborated by other
independent adult witnesses, including Mr. Winters himself.
Specifically, RH testified:
• He met Mr. Winters at the bowling alley (corroborated
by the bowling alley manager and Mr. Winters).
• Mr. Winters gave him and his brothers money to play
arcade games (corroborated by the bowling alley manager and
• Mr. Winters claimed to have lost money at the bowling
alley (corroborated by the bowling alley manager and Mr.
Winters) and he helped him look for it (corroborated by Mr.
• He and Mr. Winters eventually left the bowling alley
(corroborated by the bowling alley manager) and ended up at
the river (corroborated by Ms. Brodrecht and Mr. Winters).
• Mr. Winters hid a bag on the way to the river
(corroborated by law enforcement).
• Mr. Winters carried him across the river (corroborated
by Ms. Brodrecht and Mr. Winters).
• A female asked him and Mr. Winters if they were okay;
he did not respond but Mr. Winters said "[w]e're all
right" (collaborated by Ms. Brodrecht and Mr. Winters).
• He was found alone on the side of a road and was
picked up by a different passing motorist with children in
the car; this passing motorist brought him to the police
station (corroborated by law enforcement and Ms. Sierra).
• He was transported from the police station to the
doctor (corroborated by law enforcement and the SANE nurse).
Finally, RH had the mental capacity to understand the
attorneys' questions concerning the abuse and to express
in words his memory of it. He told the jury Mr. Winters
"humped my leg," "put his pee pee in my
butt," "stuck his tongue in my butt," and
"put his mouth on [my] pee pee." He testified that
when Mr. Winters was "humping" him, Mr. Winters was
laying on him and "going up and down." He also
explained his "pee pee" is in "[f]ront."
Nevertheless, Mr. Winters claims RH was not competent and was
not properly evaluated for competency. As to the first
Larsen factor, he argues there was no inquiry as to
whether RH understood what it means to tell the truth and the
importance of doing so as the judge's inquiry was limited
to whether RH understood an oath is a promise to tell the
truth. Mr. Winters misstates the scope of the judge's
inquiry. The judge asked not only whether RH understood an
oath is a promise to tell the truth but also ensured RH's
willingness to tell the truth. RH then took an oath promising
to do so at trial. We have found the first Larsen
factor to be satisfied based upon similar circumstances.
See Watters v. State, 2004 WY 155, ¶ 18, 101
P.3d 908, 915 (Wyo. 2004) (concluding the first
Larsen factor is satisfied where the witness
"acknowledged that an oath was a promise to tell the
truth and that she was willing to take one").
Certainly, a child's understanding of what it means to
tell the truth and the importance of doing so may support a
district court's competency determination. See, e.g.,
Griggs, ¶¶ 16, 18-19, 367 P.3d at 1120
(affirming district court's competency determination
under the first Larsen factor where victims
distinguished between the truth and a lie, gave examples of
each, and stated lying is "wrong"); Sisneros v.
State, 2005 WY 139, ¶ 35, 121 P.3d 790, 801 (Wyo.
2005) (affirming district court's finding that victim was
competent, in part, because "she indicated she
understood [her] responsibility [to tell the truth while in
court], and repeated numerous times that lying was
'bad'"). However, we have never required such
explicit findings to establish the first Larsen
factor and decline to do so here. Indeed, even a child's
demonstrated understanding of what it means to tell the truth
and his being told he "needed to tell the truth"
prior to his trial testimony are not conclusive as to his
competency if his testimony otherwise reveals he did not
understand and appreciate the need to tell the truth in the
courtroom. Mersereau, ¶¶ 9-11, 286 P.3d at
In Mersereau, the victim distinguished between the
truth and a lie and provided examples of each at the
competency hearing. Mersereau, ¶ 9, 286 P.3d at
104. Nevertheless, at trial, he testified to verifiably false
information he knew was not true and commingled his
imagination concerning his non-existent pets with the alleged
abuse. Id., ¶¶ 11-12, 286 P.3d at 104-05.
We concluded the district court's competency
determination was clearly erroneous because the child
victim's testimony revealed him to be incompetent.
Id. In this case, on the other hand, while RH was
never explicitly asked whether he understood what it means to
tell the truth and the need to do so at trial, there is no
indication RH did not understand his obligations nor was his
testimony patently false or based on a commingling of real
and imagined events or objects.
Turning to the remaining factors, Mr. Winters claims RH's
testimony shows he could not competently remember, recall,
and articulate simple answers to questions posed to him about
the abuse. For example, he claims RH was inconsistent as to
how he ended up in the river (claiming Mr. Winters wanted him
to go into the river and took his hand but then claiming he
"slipped" into the water) and why he returned to
the bowling alley after checking in at home (first claiming
his brother M told him to return and then claiming he did not
know why he returned). Such inconsistencies, however, go to
RH's credibility and the weight to be given his
testimony, not his competency. Griggs, ¶ 24,
367 P.3d at 1121 (inconsistencies in child witness's
testimony "have more to do with her credibility and the
weight to be accorded her testimony than her competence to
testify"); Sisneros, ¶ 37, 121 P.3d at 802
(same); see also Young, ¶ 19, 418 P.3d at 229
("[C]ompetence is not the same as credibility.").
Mr. Winters also claims RH gave non-sensical answers. For
instance, when asked the positions of his and Mr.
Winters' bodies when Mr. Winters "humped" his
leg, RH stated his body was "[s]cared" and Mr.
Winters' body was "Good. But he got sick." When
asked what he meant by the latter response, he said,
"When he went to jail, he got sick."Similarly, when
asked whether RH stayed in one place after Mr. Winters left
him on the side of the road, he responded, "I walked
into a lady's car." (Emphasis added). And
finally, when asked how he got to the other side of the
river, RH said he swam yet admitted he did not know how to
swim. These allegedly non-sensical answers correspond
directly with the nature and quality of the questions posed
to him. Moreover, they demonstrate the need to consider a
child's testimony as a whole, rather than hone in on
isolated statements as Mr. Winters does.
The State asked RH "[h]ow were your
bodies" and "how was [Mr. Winters']
body" when Mr. Winters humped his leg. (Emphasis added).
Although the State was seeking the position of
RH's and Mr. Winters' bodies, it was not illogical,
given the form of the question, for RH to respond with the
condition or quality of their bodies, i.e.,
"Scared" and "Good. But he got sick."
Indeed, once the State clarified the question, RH responded
Mr. Winters was "[l]aying down . . . [o]n me."
Similarly, the State asked RH whether he stayed where he was
or "walk[ed] somewhere else" after Mr.
Winters left him on the side of the road; not surprisingly,
RH responded, "I walked into a lady's
car." (Emphasis added). And, prior to asking RH how he
got to the other side of the river, trial counsel asked RH
how Mr. Winters got in the river. RH responded, Mr. Winters
"walked down to there and he holded me and he was
swimming." Trial counsel then asked, "And so now
you're both in the river, right?" and RH said,
"Yeah." Thus, when counsel asked RH, "How did
you get to the other side? Did you walk or
swim?" RH logically interpreted "you" to mean
both him and Mr. Winters. (Emphasis added). From context, RH
obviously meant Mr. Winters swam across the river while
Finally, Mr. Winters claims RH testified to an impossibility.
When the State asked RH whether his "clothes ever c[a]me
off," he responded, "Huh-uh . . . they stayed
on." According to Mr. Winters, he could not have stuck
his penis and tongue in RH's anus if RH's clothes
never came off. But Mr. Winters could have accessed RH's
genitals by lowering RH's shorts, in other words, without
RH's clothes ever "com[ing] off." Or RH could
have been referring to the fact that while his shorts came
off, his shirt remained on. Trial counsel's questions on
cross-examination did not clarify the matter. He asked RH
whether he knew what "naked" meant; RH said he did
not. Counsel defined it as meaning "you have no clothes
on at all, like when you take a bath" and RH indicated
he understood. RH then testified Mr. Winters was
"naked" but he was "never naked." Again,
that RH was "never naked" certainly does not render
the sexual abuse an impossibility.
Admittedly, RH's testimony was not perfect. But "a
witness need not be perfect to be competent to testify."
Griggs, ¶ 12, 367 P.3d at 1119. Rather, RH
needed to satisfy the Larsen factors and his
testimony reveals he did so. Because RH was clearly competent
to testify, Mr. Winters was not prejudiced by trial
counsel's failure to challenge his competency.
Failure to Object to Inadmissible Hearsay
The State initially called Casper Police Officer Levi Hallock
as a witness prior to RH testifying. Officer Hallock
described responding to the Mills police station upon
receiving notice RH had been found. Officer Hallock eventually
placed RH in his patrol car to speak with him. Officer
A. . . . I first asked him if he was all right. And he told
me that he was not all right, he was not okay. I asked him if
he had been at the bowling alley playing video game[s] with
his brothers. He told me that the brothers had been playing
games. I spoke with him and asked him if he had left the
bowling alley with his brothers or anyone else. He told me
that he had left the bowling alley with the guy that gave him
A. Do you want me to continue?
Q. Yeah. What happened then?
A. Continuing, I asked [RH] . . . if he had gone anywhere,
and he told me that the . . . man had taken him . . . by the
river to ...