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Dugan v. State

Supreme Court of Wyoming

November 6, 2019

LEWIS ALAN DUGAN, Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff).

          Appeal from the District Court of Converse County The Honorable F. Scott Peasley, Judge

          Representing Appellant: Office of the Public Defender: Diane Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Jonathan W. Foreman, Senior Assistant Public Defender. Argument by Mr. Foreman.

          Representing Appellee: Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Benjamin Fischer, Assistant Attorney General. Argument by Mr. Fischer.

          Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

          OPINION

          KAUTZ, JUSTICE.

         [¶1] A jury convicted Appellant Lewis Alan Dugan of stalking, in violation of Wyo. Stat. Ann. § 6-2-506(b) and (e)(i) (LexisNexis 2017). On appeal, Mr. Dugan asserts the statute is unconstitutional as applied to his conduct because it punishes speech protected by the First Amendment to the United States Constitution. He also claims the district court erred in instructing the jury and refusing to use his requested special verdict form, the evidence was insufficient to show he harassed the victim, and the district court erred by admitting evidence that he had been warned not to send unsolicited letters.

         [¶2] We affirm.

         ISSUES

         [¶3] We have rephrased Mr. Dugan's appellate issues and re-ordered them to facilitate a more structured analysis:

I. Was Mr. Dugan's right to free speech under the First Amendment to the United States Constitution violated when the State prosecuted him under the criminal stalking statute, § 6-2-506, for sending letters to the victim?
II. Did the district court abuse its discretion by incorrectly instructing the jury on Mr. Dugan's theory of defense and the definition of obscene and/or by refusing his request for a special verdict form?
III. Did the State present sufficient evidence to establish Mr. Dugan harassed the victim under the statutory definition in § 6-2-506(a)(ii)?
IV. Did the district court abuse its discretion by admitting evidence that Mr. Dugan had been warned not to send unsolicited letters?

         FACTS

         [¶4] In January and February 2017, Mr. Dugan sent ten letters to the victim at her workplace in Douglas, Wyoming. Mr. Dugan was imprisoned at the Wyoming Medium Correctional Institution in Torrington, Wyoming, when he began sending the letters. He continued to send the victim letters after he was transferred to the Wyoming State Penitentiary in Rawlins, Wyoming, on February 1, 2017. Mr. Dugan was a friend of the victim's son when they were in school, but the victim had not had a conversation with Mr. Dugan in over twenty years and never asked him to correspond with her.

         [¶5] The letters were generally rambling dissertations on Mr. Dugan's life, with a recurring theme that he wanted a romantic and sexual relationship with the victim. They contained numerous sexually explicit statements. Mr. Dugan asked the victim to send him "hot sexy pictures" of herself in a bikini or "booty shortz." He asked the victim whether her favorite sexual position was to "get on top and ride," "the guy on you," or "doggie style." He said he liked "the 69er." Mr. Dugan asked whether she was a "moaner" or a "screamer" in bed. He said he could "find her crazy spots[.] [E]very woman has crazy good spots[.]" Mr. Dugan indicated his penis was not "a long one but it's fat and round." He wrote, "I know how to make you have good orgasms or cum really good." Mr. Dugan asked whether she knew about "flavored oil[] like the stuff I'd drip on you then I'd lick it off mmm so sometimes p[eo]pl[e] drip it on your boobs and your cooter then lick it off." He said he wanted to sleep nude and shower with her. Mr. Dugan told her he fantasized about them taking the illegal drug, Ecstasy (which he spelled XTC), and having sex.

         [¶6] Mr. Dugan said he had been "checking [the victim] out" before he went to prison and described seeing the victim going home or to work and the car she drove. His letters also demonstrated he knew he should not be writing to her. He asked her numerous times not to contact law enforcement and not to tell his parents he was writing to her because "they always get on my ass about it."

         [¶7] The victim contacted law enforcement when she started receiving Mr. Dugan's letters. She stated the letters made her feel "sick and nervous and scared." Converse County Sheriff Department Investigator Keri McNare testified the victim was "very upset." Law enforcement officials told Mr. Dugan to stop writing letters to the victim. He did not heed the warnings and continued to send her letters.

         [¶8] Two investigators interviewed Mr. Dugan at the penitentiary on February 13, 2017. He admitted during the interview that he knew the victim did not want his letters, but he continued to send them anyway. After the investigators left, Mr. Dugan sent at least one more letter, begging the victim not to tell law enforcement he was communicating with her. The last letter included a limited apology and did not contain any express sexual statements. However, he did refer to matters from his earlier letters that were related to his sexual desires, including requests that she send him pictures and a plea for a relationship with her.

         [¶9] The State charged Mr. Dugan with felony stalking of the victim in violation of § 6-2-506(b) and (e)(i). He pleaded not guilty, and the case proceeded to trial in March 2018. The jury found Mr. Dugan guilty, and the district court sentenced him to prison for four to seven years, to be served concurrent with another sentence. This appeal followed.

         DISCUSSION

         I. First Amendment

         [¶10] Mr. Dugan claims the State violated his rights under the First Amendment to the United States Constitution by prosecuting him under § 6-2-506(a)(ii) for his protected speech.[1] A court's determination of whether a statute is constitutional on its face or as applied to a defendant is a matter of law, subject to de novo review.[2] Sanderson v. State, 2007 WY 127, ¶ 31, 165 P.3d 83, 92 (Wyo. 2007).

         A. The Stalking Statute - Section 6-2-506 (2017)

         [¶11] The relevant portions of § 6-2-506 (2017)[3] provided:

(a) As used in this section:
(i) "Course of conduct" means a pattern of conduct composed of a series of acts over any period of time evidencing a continuity of purpose;
(ii) "Harass" means to engage in a course of conduct, including but not limited to verbal threats, written threats, lewd or obscene statements or images, vandalism or nonconsensual physical contact, directed at a specific person or the family of a specific person, which the defendant knew or should have known would cause a reasonable person to suffer substantial emotional distress, and which does in fact seriously alarm the person toward whom it is directed.
(b) Unless otherwise provided by law, a person commits the crime of stalking if, with intent to harass another person, the person engages in a course of conduct reasonably likely to harass that person, including but not limited to any combination of the following:
(i) Communicating, anonymously or otherwise, or causing a communication with another person by verbal, electronic, mechanical, telegraphic, telephonic or written means in a manner that harasses;
. . .
(e) A person convicted of stalking under subsection (b) of this section is guilty of felony stalking punishable by imprisonment for not more than ten (10) years, if:
(i) The act or acts leading to the conviction occurred within five (5) years of a prior conviction under this subsection, or under subsection (b) of this section, or under a substantially similar law of another jurisdiction[.]

         B. General First Amendment Law

         [¶12] The First Amendment to the United States Constitution states in relevant part: "Congress shall make no law . . . abridging the freedom of speech." "'[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.'" United States v. Stevens, 559 U.S. 460, 468, 130 S.Ct. 1577, 1584, 176 L.Ed.2d 435 (2010) (quoting Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573, 122 S.Ct. 1700, 1707, 152 L.Ed.2d 771 (2002)) (other citations omitted). The First Amendment is applicable to the states through the Fourteenth Amendment to the United States Constitution. Mekss v. Wyo. Girls' School, 813 P.2d 185, 192-93 (Wyo. 1991).

         [¶13] A litigant may assert a statute violates his right to free speech through a facial challenge or an as-applied challenge. "A statute is unconstitutional on its face if it prohibits a substantial amount of protected expression. If a statute is facially overbroad in violation of the First Amendment[, ] it cannot be enforced in any part." Rutti v. State, 2004 WY 133, ¶ 11, 100 P.3d 394, 401 (Wyo. 2004) (citing Ashcroft, 535 U.S. at 244, 122 S.Ct. at 1398-99) (other citations omitted). An as-applied challenge, on the other hand, considers the "statute in light of the charged conduct." United States v. Franklin-El, 554 F.3d 903, 910 (10th Cir. 2009) (citing United States v. LaHue, 261 F.3d 993, 1005 (10th Cir. 2001)); Martinez v. City of Rio Rancho, 197 F.Supp.3d 1294, 1309 (D. N.M. 2016). See also, Dougherty v. State, 2010 WY 127, ¶¶ 7, 15, 239 P.3d 1176, 1179, 1181 (Wyo. 2010) (using the same as-applied standard for a due process vagueness claim); Rabuck v. State, 2006 WY 25, ¶ 16, 129 P.3d 861, 865 (Wyo. 2006) (same). "If an as-applied challenge to the constitutionality of a statute is successful, the statute may not be applied to the challenger but is otherwise enforceable." 16 C.J.S. Const. Law § 243 (2019).

         C. Section 6-2-506 is Constitutional on its Face

         [¶14] Mr. Dugan acknowledges this Court ruled the stalking statute is constitutional on its face in Luplow v. State, 897 P.2d 463 (Wyo. 1995). We said § 6-2-506 is not overbroad because it does not reach a substantial amount of protected speech. Id. at 467-68. See also, Garton v. State, 910 P.2d 1348, 1351 (Wyo. 1996). "It is true it may inhibit speech, but only in a constitutionally permissible way." Luplow, 897 P.2d at 467. While Mr. Dugan does not make an overt facial challenge, his argument blurs the boundary between a facial challenge and an as-applied challenge. In order to properly address his arguments, it is necessary to review some aspects of the law regarding the facial constitutionality of the statute.

         [¶15] The general rule is:

The First Amendment guaranty of free speech does not preclude punishment for criminal stalking. A criminal defendant's right to free speech is permissibly subordinated to a victim's right to be free of repetitive unwanted verbal and nonverbal communications likely to instill a reasonable fear of harm. A criminal stalking statute is valid if not overbroad, regulating conduct and not speech.

16B C.J.S. Const. Law § 1127 (2019).

         [¶16] Properly crafted harassment or stalking statutes do not punish the simple act of communicating statements; they punish repeated communications done with an unlawful intent to harm another person. By incorporating some or all of the following elements into the statutory language, a legislature may limit the statute's reach to avoid a substantial impact upon protected speech: the defendant act with specific criminal intent; the defendant make repeated communications to the victim; the communications cause the victim to suffer a significant or substantial negative reaction; the victim's reaction is objectively reasonable; and political speech is expressly excluded from the statute's reach. See, e.g., United States v. Osinger, 753 F.3d 939, 943-44 (9th Cir. 2014) (upholding a federal statute that stated, "Whoever . . . (2) with the intent . . . to kill, injure, harass, . . . or intimidate [a person] . . . uses the mail, any interactive computer service, or any facility of interstate or foreign commerce to engage in a course of conduct that causes substantial emotional distress to that person shall be punished[.]"); United States v. Petrovic, 701 F.3d 849, 856 (8th Cir. 2012) (same); Thorne v. Bailey, 846 F.2d 241 (4th Cir. 1988) (upholding West Virginia's harassment statute which prohibited calls made with the specific intent to harass); People v. Taravella, 350 N.W.2d 780 (Mich. Ct. App. 1984) (upholding a Michigan statute which prohibited telephone communications made with the intent to harass); State v. Camp, 295 S.E.2d 766 ( N.C. Ct. App. 1982) (upholding a North Carolina statute which prohibited repeated telephone calls made with the purpose of harassing another); State v. Elder, 382 So.2d 687 (Fla. 1980) (upholding a Florida statute prohibiting anonymous phone calls made with the intent to harass). Compare, Matter of Welfare of A.J.B., 929 N.W.2d 840, 854-55 (Minn. 2019) (declaring Minnesota stalking by mail statute unconstitutional because it did not include elements requiring proof of a specific criminal intent or substantial harm to the victim).

         [¶17] By including these requirements, the legislature criminalizes conduct without reaching a substantial amount of protected speech. 16B C.J.S. Const. Law § 1127. In other words, "the proscribed acts are tethered to the underlying criminal conduct and not to speech." Osinger, 753 F.3d at 944. The United States Supreme Court in Cox v. Louisiana, 379 U.S. 536, 555, 85 S.Ct. 453, 465, 13 L.Ed.2d 471 (1965) (internal quotations and citation omitted), expressed the concept in a more general way: "[I]t has never been deemed an abridgment of freedom of speech . . . to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed."

         [¶18] Section 6-2-506 bears all the hallmarks of a statute that criminalizes conduct without reaching a substantial amount of protected speech. It requires proof that the defendant acted with the specific intent to harass the victim. Section 6-2-506(b); Dean v. State, 2014 WY 158, ¶ 10, 339 P.3d 509, 512 (Wyo. 2014); Luplow, 897 P.2d at 468. Section 6-2-506 (a)(ii) and (b) incorporate the concept of repeated communications to the victim by requiring the State to prove the defendant engaged in a "course of conduct." Id. "Course of conduct" is defined as "a pattern of conduct composed of a series of acts over any period of time evidencing a continuity of purpose." Section 6-2-506(a)(i). See also, Hawes v. State, 2014 WY 127, ¶¶ 9-11, 335 P.3d 1073, 1076-77 (Wyo. 2014) (insufficient evidence of "course of conduct" element of § 6-2-506). The definition of "harass" in § 6-2-506(a)(ii) requires proof the defendant knew or should have known his conduct "would cause a reasonable person to suffer substantial emotional distress, and which does in fact seriously alarm the person toward whom it is directed." See generally, Veile v. Martinson, 258 F.3d 1180, 1189-90 (10th Cir. 2001) (sufficient evidence that victim was seriously alarmed as a result of Mr. Veile's statements that he would "ruin" the victim's business and reputation and the victim's religion was a cult and other harassing conduct). Section 6-2-506(c) carves out political speech from the statute's coverage: "This section does not apply to an otherwise lawful demonstration, assembly or picketing."

         [¶19] Despite his recognition of our decision in Luplow and his claim to be raising only an as-applied challenge to the statute, Mr. Dugan puts forth arguments which are principally challenges to the facial constitutionality of § 6-2-506. He asserts our statute is "in all essential elements" the same as the statute the Illinois Supreme Court declared unconstitutional on its face in People v. Relerford, 104 N.E.3d 341 (Ill. 2017). Mr. Dugan is incorrect. The Illinois statute was broader than § 6-2-506.

         [¶20] The Illinois court ruled the statute reached a substantial amount of protected speech, in part, because it did not require proof that the defendant acted with a specific criminal intent. Instead, it imposed criminal liability for negligent conduct. Relerford, 104 N.E.3d at 352-53, 356. The court noted that the absence of a specific intent element distinguished the Illinois statute from the federal stalking statute considered in Osinger and Petrovic.[4]Id. at 352. Because it was critical to the Illinois court's decision that the statute did not require a specific criminal intent, Relerford is consistent with authorities distinguishing criminal conduct from protected speech. Relerford does not, therefore, support Mr. Dugan's claim that § 6-2-506 violates the First Amendment guaranty of freedom of speech.

         [¶21] Mr. Dugan also asserts that because § 6-2-506 singles out communication that is lewd or obscene, [5] it is a content-based regulation of speech, subject to strict scrutiny. A means-end analysis like strict scrutiny is appropriate only when a statute infringes on a substantial amount of protected speech. R. Galloway, Basic Free Speech Analysis, 31 Santa Clara L. Rev. 883, 886 (1991). If a statute infringes on free speech, a court must determine if the government

complied with the rules the Supreme Court has developed for enforcing that freedom. These rules often take the form of means-end scrutiny, a mode of legal analysis that focuses on the government interests (ends), the effectiveness of the method (means) chosen to further those interests, and the availability of less restrictive alternative means. Some infringements, including most content-based infringements, are subject to strict scrutiny. Some, including most content-neutral infringements, are subject to mid-level means-end scrutiny.

Id. Strict scrutiny "requires the establishment of [a] compelling state interest and the showing that the method of achieving [the interest] is the least intrusive of those methods by which such can be accomplished." In re RM, 2004 WY 162, ¶ 13, 102 P.3d 868, 873 (Wyo. 2004) (internal quotations and citation omitted). Mid-level or intermediate scrutiny requires the establishment of a significant governmental interest and the showing that the method of achieving the interest is narrowly tailored to serve that purpose. See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984).

         [¶22] The fact that § 6-2-506 identifies "lewd or obscene statements" in the definition of harass does not make it a content-based regulation on speech rather than a regulation of conduct without a significant impact on protected speech. People v. Kucharski, 987 N.E.2d 906 (Ill. Ct. App. 2013), addressed a claim that an Illinois statute, which prohibited obscene communications made with the specific intent to offend, unconstitutionally regulated speech based upon its content. The court concluded the statute was constitutional because it controlled conduct, not a substantial amount of protected speech. Id. at 914. Obscene communications made with criminal intent are restricted "not because its content communicates any particular idea . . . [but] because of the purpose for which it is communicated." Id. See also, Perkins v. Commonwealth, 402 S.E.2d 229, 232-33 (Va. Ct. App. 1991) (statute which prohibited the use of "obscene, vulgar, profane, lewd, lascivious, or indecent language" with the specific intent to "coerce, intimidate or harass" regulated conduct not a particular category of speech); State v. Richards, 896 P.2d 357, 361-63 (Idaho Ct. App. 1995) (statute prohibiting telephoning another "with the intent to annoy, terrify, threaten, intimidate, harass or offend" and communicating "to or about such person any obscene, lewd or profane language, or mak[ing] any request, suggestion or proposal which is obscene, lewd, lascivious or indecent" regulates conduct, not protected speech); State v. Dugan, 303 P.3d 755, 769-72 (Mont. 2013) (after invalidating a provision that created a presumption of intent, the Montana Supreme Court upheld a statute that criminalized communication using obscene, lewd or profane language or suggesting a lewd or lascivious act made with the specific purpose of terrifying, intimidating, threatening, harassing, annoying, or offending the victim). We, therefore, reaffirm our holdings in Luplow and its progeny that § 6-2-506 is constitutional on its face.

         D. Section 6-2-506 is Constitutional As-Applied to Mr. Dugan

         [¶23] Mr. Dugan claims § 6-2-506 is unconstitutional as applied to him. When assessing whether a statute is unconstitutional as applied to a defendant, we consider the statute in light of his specific conduct. Franklin-El, 554 F.3d at 910; Dougherty, ¶¶ 7, 15, 239 P.3d at 1179, 1181. We review an as-applied challenge "solely in light of the State's evidence of [Mr. Dugan's] conduct, giving it the benefit of every favorable factual inference that may fairly be drawn from the record." Guilford v. State, 2015 WY 147, ¶ 17, 362 P.3d 1015, 1018 (Wyo. 2015).

         [¶24] The evidence showed Mr. Dugan engaged in a course of conduct by sending a series of letters to the victim which contained explicit descriptions of sex acts he wanted to perform with the victim. Mr. Dugan knew his letters were unwanted and improper. Law enforcement warned Mr. Dugan to stop writing to the victim, but he continued to do so. This evidence showed he had a specific intent to harass and knew or should have known his letters would cause a reasonable person to suffer substantial emotional distress. The evidence also showed the victim found the letters seriously alarming. She stated she felt "sick to her stomach," "nervous and scared." Investigator McNare testified she observed the victim to be "very upset" about the letters. The State, therefore, demonstrated that Mr. Dugan's communications with the victim amounted to illegal harassing conduct rather than constitutionally protected speech.

         [¶25] Mr. Dugan argues the State encouraged the jury to convict him based solely upon the content of his speech by unduly emphasizing the sexually explicit aspects of his statements in its presentation of the evidence and arguments to the jury. As we explained above, the State can lawfully regulate obscene statements under a statute that prohibits illegal harassment. The evidence that Mr. Dugan's statements were obscene pertained to the harassment element of the crime, which the State was required to prove. Presenting and arguing evidence of the crime to the jury was not only appropriate, it was required under the terms of the statute.

         [¶26] Nevertheless, Mr. Dugan argues that the State's inappropriate attempt to prosecute him solely on the basis of his speech is demonstrated by some of the witnesses' answers to a series of questions about other topics. During cross-examination, defense counsel asked Investigator McNare:

Q. . . . These may be dumb questions; you'll have to excuse me. But if Mr. Dugan wrote a letter to [the victim] that said, single line, "Puppies are cute," and then enclosed a picture of a cute puppy. Is that something you would refer for prosecution?
A. No.
Q. What if he wrote a letter saying[, ] "I . . . really love the Denver Broncos. Yay, Denver Broncos. John Elway is the greatest," would you refer that for prosecution?
A. Are you asking like after I told him no or . . .?
Q. Yeah. At any time.
A. At this point if he was [to] continue after told no, yes.
Q. Okay. What if he wrote a letter, one letter saying that he thinks the greatest city in the world is Tulsa, Oklahoma, and he writes for pages extolling the virtues of the good people of Tulsa, Oklahoma. Would that be something you would want to refer for prosecution?
A. Again, if he's told to stop contacting [the victim] and he wrote that letter to [the victim], yes.
Q. Would any of those above letters contain any threats?
A. The ones that you just talked about?
Q. Yeah. My scenarios.
A. No, those are not.
Q. Okay. Do they contain anything that would be obscene?
A. No.

         Defense counsel also asked the victim questions about whether she would have been offended by letters from Mr. Dugan about the same subjects - puppies, the Denver Broncos, and Tulsa, Oklahoma. Each time, she responded, "No."

         [¶27] Mr. Dugan's argument that this line of questioning shows he was prosecuted only for his speech ignores that § 6-2-506 requires more than proof that he made obscene statements. Although a letter or letters about puppies, the Broncos, or Tulsa would not have resulted in prosecution for criminal stalking, it does not follow that the only attribute of Mr. Dugan's conduct which resulted in prosecution was his use of obscene statements. His course of conduct (writing extensive and repeated letters) was an essential element of the crime as defined by § 6-2-506. Investigator McNare referenced other elements of § 6-2-506 when she mentioned that warnings to cease communication would be important to her decision on whether to refer a matter for prosecution. The State was also required to show Mr. Dugan knew or should have known his conduct would cause a reasonable person to suffer substantial emotional distress and the victim was, in fact, seriously alarmed. The victim said communications from Mr. Dugan about puppies, the Denver Broncos, and Tulsa would not have caused her such distress. Given that the State was required to prove all the elements of § 6-2-506, Mr. Dugan was not prosecuted simply for making obscene statements.

         [¶28] In making his "as-applied" argument, Mr. Dugan also relates his situation to Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). Mr. Cohen was convicted under a California statute for maliciously and willfully disturbing the peace or quiet of a neighborhood or person by offensive conduct for wearing a jacket in a state courthouse which bore the words "F**K the Draft." Id. at 16, 91 S.Ct. at 1784. The United States Supreme Court overturned his conviction, concluding the statute, as applied to Cohen, was unconstitutional because it punished him for his protected speech, not his conduct. "The only conduct which the [prosecution] sought to punish is the fact of communication. Thus, we deal here with a conviction resting solely upon speech[.]" Id. at 18, 91 S.Ct. at 1784 (internal quotations and citations omitted). The state could not, consistent with the First Amendment, make his simple public display of an expletive a crime. Id. at 26, 91 S.Ct. at 1789.

         [¶29] Mr. Dugan's situation is obviously distinguishable from Cohen. The Supreme Court in Cohen found it significant that the defendant's statement was not directed at a specific person. Cohen, 403 U.S. at 20-21, 91 S.Ct. at 1785-86. That is not the case here; Mr. Dugan directed his letters to the victim. Unlike in the present case, the statute in Cohen did not require repeated actions and there was no indication the defendant engaged in a course of conduct. The California statute also did not require proof that Cohen knew or should have known his conduct would cause substantial emotional distress to a reasonable person or that a person actually suffer serious alarm. Furthermore, the idea expressed by Cohen was political in nature, a singularly important type of speech protected by the First Amendment. Id. at 24-26, 91 S.Ct. at 1787-89. Mr. Dugan's statements had no political value whatsoever.

         [¶30] Mr. Dugan also argues § 6-2-506 is unconstitutional as applied to him because his statements were not obscene under Wyo. Stat. Ann. § 6-4-301(a)(iii) (LexisNexis 2019):

(a) As used in this article:
. . . .
(iii) "Obscene" is material which the average person would find:
(A) Applying contemporary community standards, taken as a whole, appeals to the prurient interest;
(B) Applying contemporary community standards, depicts or describes sexual conduct in a patently offensive way; and
(C) Taken as a whole, lacks serious literary, artistic, political or scientific value.

         [¶31] This definition applies to the crimes in Title 6, Article 3 of the Wyoming Statutes which generally addresses the dissemination of obscene materials. Section 6-2-506 does not incorporate the § 6-4-301 definition of obscene, nor does it otherwise define the term. Under standard rules of statutory construction, we are not at liberty to add words to a statute that the legislature chose to omit. Wyodak Res. Dev. Corp. v. Dep't of Rev., 2017 WY 6, ¶ 31, 387 P.3d 725, 733 (Wyo. 2017) (citing MF v. State, 2013 WY 104, ¶ 11, 308 P.3d 854, 858 (Wyo. 2013)). When a statute does not provide a technical definition of a word, the ordinary definition of the word generally applies. Cecil v. State, 2015 WY 158, ¶ 14, 364 P.3d 1086, 1090-91 (Wyo. 2015).

         [¶32] Section 6-4-301(a)(iii) mirrors the United States Supreme Court's definition of obscene which is applicable to statutes regulating pure speech. See, e.g., Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419 (1973); Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). In State v. Crelly, 313 N.W.2d 455 (S.D. 1981), the South Dakota Supreme Court considered a statute which prohibited calling "another person with intent to terrorize, intimidate, threaten, harass, or annoy such person by using any obscene or lewd language or by suggesting any lewd or lascivious act(.)" Id. at 455. The South Dakota court firmly rejected an argument that the definition of "obscene" from United States Supreme Court cases like Miller should apply to the harassment statute. Id. at 455-56. Crelly, 313 N.W.2d at 456 (quoting Baker v. State, 494 P.2d 68, 70-71 (Ariz.Ct.App. 1972)) ("It would be . . . inane to interpret the word "obscene" in the context of the [United States Supreme Court obscenity] standards when dealing with obscene phone calls."). Crelly held that the ordinary meaning of obscene applied to South Dakota's obscene phone calls statute. Id. at 456. See also, People v. Hernandez, 283 Cal.Rptr. 81, 85 (Cal.Ct.App. 1991) (refusing to apply Miller definition of obscene to telephone harassment statute); State v. Kipf, 450 N.W.2d 397, 404-05 (Neb. 1990) (same). We agree with this rationale.

         [¶33] The punishment of obscenity under laws that regulate pure speech is much different than the punishment of harassing conduct which includes obscene statements. The ordinary meaning of "obscene," i.e., "'[e]xtremely offensive under contemporary community standards of morality and decency; grossly repugnant to the generally accepted notions of what is appropriate, '" Dougherty, ¶ 12, 239 P.3d at 1181 (quoting Black's Law Dictionary 1182 (9th ed. 2009)), applies to § 6-2-506. The district court's refusal to require proof that Mr. Dugan's statements met the definition of "obscene" under § 6-4-301 and the Miller standard does not render § 6-2-506 unconstitutional as applied to him.

         II. Jury Instructions and Verdict Form

         [¶34] Mr. Dugan claims the district court abused its discretion by improperly instructing the jury on his theory of defense and refusing his jury instruction defining "obscene." He also maintains the district court erred by refusing to use his special verdict form which would have required the jury to choose whether Mr. Dugan's letters contained obscene statements or threats. In general,

[w]e review a district court's decision regarding jury instructions for an abuse of discretion. The district courts are afforded substantial latitude to tailor jury instructions to the facts of the case. So long as the jury instructions correctly state the law and adequately cover the issues presented in the trial, reversible error will not be found.

Birch v. State, 2018 WY 73, ¶ 12, 421 P.3d 528, 533 (Wyo. 2018) (quotation marks and citations omitted). However, "[t]he failure to give an instruction on the law related to a theory of defense is a due process issue, which this Court reviews de novo." James v. State, 2015 WY 83, ¶ 17, 357 P.3d 101, 105 (Wyo. 2015) (citing Nelson v. State, 2010 WY 159, ¶ 13, 245 P.3d 282, 285 (Wyo. 2010)).

         A. Theory of Defense

         [¶35] Mr. Dugan proposed the following theory of defense instruction:

The defendant asserts that he is being criminally prosecuted due to the contents of the letters that he wrote to [the victim], which is an attempt to criminally sanction his speech. Under the First Amendment to the United States Constitution, the State may not punish the defendant for the content of his speech unless it can prove beyond a reasonable doubt that the speech falls under a previously recognized exception to the First Amendment of the United States Constitution. Those exceptions are:
Incitement to Imminent ...

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