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.
DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
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
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
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.
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.
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."
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.
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.
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.
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. 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. Sanderson v. State, 2007 WY 127,
¶ 31, 165 P.3d 83, 92 (Wyo. 2007).
The Stalking Statute - Section 6-2-506
The relevant portions of § 6-2-506 (2017) 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[.]
General First Amendment Law
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).
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).
Section 6-2-506 is Constitutional on its Face
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
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).
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).
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."
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."
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
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.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.
Mr. Dugan also asserts that because § 6-2-506 singles
out communication that is lewd or obscene,  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
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).
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.
Section 6-2-506 is Constitutional As-Applied to Mr.
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).
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.
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.
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?
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?
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."
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.
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.
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
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.
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).
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.
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.
Jury Instructions and Verdict Form
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)).
Theory of Defense
Mr. Dugan proposed the following theory of defense
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 ...