from the District Court of Uinta County The Honorable Joseph
B. Bluemel, Judge.
Representing Appellant: Office of the Public Defender: Diane
Lozano, State Public Defender; Kirk A. Morgan, Chief
Appellate Counsel; Desiree Wilson, Senior Assistant Appellate
Counsel. Argument by Ms. Wilson.
Representing Appellee: Bridget Hill, Wyoming Attorney
General; Jenny L. Craig, Deputy Attorney General; Christyne
M. Martens, Senior Assistant Attorney General; Russell Farr,
Senior Assistant Attorney General. Argument by Mr. Farr.
DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
A jury found Sean Wayne Weston guilty of attempted sexual
abuse of a minor in the second degree. Mr. Weston challenges
the sufficiency of the evidence to convict him, the jury
instructions and the effectiveness of his trial counsel. Our
review of the record convinces us the evidence was sufficient
to support the jury's verdict. The jury instructions on
the elements of attempted sexual abuse of a minor in the
second degree were incorrect. However, the jury instruction
errors and any deficiencies in defense counsel's
performance associated with the instructions were not
prejudicial because the State presented overwhelming evidence
showing Mr. Weston was guilty of the crime. We affirm.
The issues on appeal are:
1. Was the evidence presented at trial sufficient to convict
Mr. Weston of attempted sexual abuse of a minor in the second
2. Did the district court err in instructing the jury?
3. Was defense counsel's performance in addressing the
jury instructions deficient?
4. Was Mr. Weston prejudiced by incorrect jury instructions
and/or his counsel's deficient performance?
In the spring of 2015, Mr. Weston, who was 29 years old, and
the victim, who was 15 years old, met briefly at the
recreation center in Evanston, Wyoming. After they met, Mr.
Weston messaged the victim on Facebook and they began
communicating regularly through that platform. The Facebook
messages were admitted at trial as State's Exhibit No. 1.
The messages were sexually explicit, and we do not need to
repeat them verbatim here. It suffices to say Mr. Weston
graphically described the sexual activities he wished to
perform with the victim and stated many times that he wanted
to have sexual intercourse and oral sex with her.
Mr. Weston also frequently encouraged the victim to sneak out
of her house, go for a walk, or be dropped off at certain
places so he could pick her up and take her to his house
without her parents knowing. At one point, he asked where she
lived, and she said across the street from the Pines
Apartments. He said she should "walk over to the
Pines" and he would come and get her.
On June 24, 2015, Mr. Weston and the victim's plans
became more concrete. Mr. Weston asked the victim if she
would sneak out that night, and she said she would
"soon" but had to wait until the other people in
her house were asleep. Mr. Weston responded, "Sweet.
I'm going to take a shower" and "[l]et me know
when to get you." He messaged her a little later saying
he was out of the shower; the victim responded,
"Same." Mr. Weston asked her, "So how long,
baby?" and told her to "[j]ust hurry and sneak
The victim eventually told Mr. Weston that everyone was
asleep, and he responded, "So the Pines?" The
victim said, "Wait, don't leave yet" because
she was "talking to the cops" about whether she had
been involved in a burglary at the Flying J. The victim
testified at trial that her statements about the cops were
untrue; she was just "trying to figure out a way to get
out of" meeting Mr. Weston.
Mr. Weston said, "Okay. Then I'll go home, I
guess." The victim asked, "Are you already at the
Pines?" and he replied, "No." She asked,
"Then where are you?" and he said, "Driving.
Are you coming out still?" The victim responded,
"Yeah, if the cops ever leave." He responded,
"Let me know." Mr. Weston and the victim did not
meet in person that night but, over the next several weeks,
they continued to communicate in great detail about having
sexual intercourse and oral sex. Mr. Weston regularly
encouraged the victim to sneak away from her parents and come
to his house.
The victim testified that on July 26, 2015, she and Mr.
Weston Facebook messaged and texted each other. Mr. Weston told
her he was going to take his son to the park by her house. He
said she should go for a walk and he would pick her up. There
was some discussion indicating they wanted to make sure the
victim's family did not know about them being together.
The victim mentioned that her younger cousin was with her and
asked if Mr. Weston would be "weirded out" if she
and her cousin went to the park and laid in the grass. He
said, "No, I wouldn't care. Free country."
The two girls went to the park, and Mr. Weston and the victim
continued to communicate with one another at the park through
text and Facebook messaging. The victim said she and Mr.
Weston were about fifteen to twenty feet apart at the park,
but they did not speak. Mr. Weston messaged her, saying she
was turning him on in her pink shorts and asked if her cousin
could watch his son so Mr. Weston and the victim could go
"mess around" in his truck. He also said the victim
should go on a walk at 5:00 p.m. so he could pick her up.
The victim never met with Mr. Weston, and she testified their
communication ended when she was sent to a residential youth
treatment center. The victim did not report her interactions
with Mr. Weston to law enforcement, but officers found their
Facebook messages when investigating another matter involving
Mr. Weston. The State charged Mr. Weston with attempted
second-degree sexual abuse of the victim, and the jury found
him guilty. The district court sentenced him to a prison term
of eighteen months to five years, and Mr. Weston appealed.
of the Evidence
Mr. Weston asserts the trial evidence was insufficient to
convict him of attempted second-degree sexual abuse of a
minor. When reviewing a claim that the trial evidence was
insufficient to support a jury's verdict, we do not
consider whether the evidence was sufficient to establish the
appellant's guilt beyond a reasonable doubt. Thompson
v. State, 2018 WY 3, ¶ 14, 408 P.3d 756, 760 (Wyo.
2018); Mraz v. State, 2016 WY 85, ¶ 19, 378
P.3d 280, 286 (Wyo. 2016). Rather, we evaluate whether the
evidence could reasonably support the jury's verdict
without reweighing the evidence or re-examining the
credibility of the witnesses. Id.
[T]his Court examines the evidence in the light most
favorable to the State. We accept all evidence favorable to
the State as true and give the State's evidence every
favorable inference which can reasonably and fairly be drawn
from it. We also disregard any evidence favorable to the
appellant that conflicts with the State's evidence.
Id. (quoting Worley v. State, 2017 WY 3,
¶ 17, 386 P.3d 765, 771 (Wyo. 2017)) (other citations
Mr. Weston was convicted of attempted second-degree sexual
abuse of a minor under Wyo. Stat. Ann. §§ 6-1-301
and 6-2-315 (a)(i) and (b) (LexisNexis 2019). Section 6-1-301
states in relevant part:
(a) A person is guilty of an attempt to commit a crime if:
(i) With the intent to commit the crime, he does any act
which is a substantial step towards commission of the crime.
A "substantial step" is conduct which is strongly
corroborative of the firmness of the person's intention
to complete the commission of the crime[.]
6-2-315(a)(i) states in relevant part:
(a) Except under circumstance constituting sexual abuse of a
minor in the first degree as defined by W.S. 6-2-314, an
actor commits the crime of sexual abuse ...