from the District Court of Crook County The Honorable Thomas
W. Rumpke, 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 L. Hill, Wyoming Attorney
General; Jenny L. Craig, Deputy Attorney General; Christyne
M. Martens, Senior Assistant Attorney General; Darrell D.
Jackson, Faculty Director, Prosecution Assistance Program;
Mackenzie Morrison, Student Director. Argument by Ms.
DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
A jury convicted Christopher Mark Nesius of two felonies and
three misdemeanors after he led law enforcement officers on a
high-speed pursuit that ended when he struck and seriously
injured a motorcyclist on I-90 near Sundance, Wyoming. On
appeal, Mr. Nesius challenges the sufficiency of the evidence
to support his conviction for driving under the influence
(DUI) causing serious bodily injury under Wyoming Statute
§ 31-5-233(b)(iii)(B). He argues that his sentence for
fleeing or attempting to elude police officers under Wyoming
Statute § 31-5-225(a) is illegal because it exceeds the
statutory maximum. And he contends that the district
court's written sentence failed to conform to its oral
pronouncement with respect to credit for time served. We
affirm Mr. Nesius' conviction for DUI causing serious
bodily injury, but remand for issuance of a corrected
Mr. Nesius raises two issues on appeal, which we rephrase:
I. Was the evidence sufficient for the jury to convict Mr.
Nesius of DUI causing serious bodily injury under Wyoming
Statute § 31-5-233(b)(iii)(B)?
II. Is Mr. Nesius' 211-day sentence on Count V, fleeing
or attempting to elude police officers under Wyoming Statute
§ 31-5-225(a), illegal because it exceeds the statutory
maximum, and did the district court's written sentence
fail to conform to its oral pronouncement with respect to
credit for time served?
Given the issues on appeal, we address the facts in the
context of the trial proceedings. On July 10, 2017, the State
charged Mr. Nesius with six crimes: aggravated assault and
battery (Count I); DUI causing serious bodily injury, second
offense (Count II); reckless endangering (Count III);
interference with a peace officer (Count IV); fleeing or
attempting to elude police officers (Count V); and driving
with a cancelled, suspended, or revoked license, second
offense (Count VI).
In October 2018, the district court held a two-day trial on
these charges. The State presented the testimony of the law
enforcement officers who were involved in the pursuit, a
paramedic, two scientific witnesses, and the motorcyclist.
The State's first witness, Wyoming State Park Ranger Brad
Purcell, outlined how the incident began at Keyhole State
Park on July 8, 2017. The driver of a maroon Ford truck,
later identified as Mr. Nesius, passed Ranger Purcell at a
high rate of speed. Ranger Purcell determined that Mr. Nesius
was driving 63 miles per hour in a 30-mile-an-hour zone. He
activated the emergency lights on his vehicle and pursued the
truck. Ranger Purcell observed Mr. Nesius drive "really
close to the fee booth" and then proceed to McKean Road.
Mr. Nesius stopped at the intersection of Pine Ridge Road due
to cross-traffic and Ranger Purcell exited his vehicle to
conduct a traffic stop, at which time Mr. Nesius
spontaneously put both of his hands out of the truck window.
As Ranger Purcell approached, Mr. Nesius' hands
disappeared back into the truck and he sped off, leaving a
"rooster tail full of gravel and dust" in his wake.
Ranger Purcell returned to his vehicle and pursued Mr. Nesius
south on Pine Ridge Road, where he observed Mr. Nesius cross
a cattle guard at a high rate of speed and temporarily lose
back-end traction before proceeding to another intersection
where-in a now familiar ruse-Mr. Nesius stopped his truck in
the middle of the road and spontaneously put his hands out
the window. As Ranger Purcell began to open his door, Mr.
Nesius sped off again. Mr. Nesius proceeded onto I-90 east
towards Sundance, and additional officers joined the pursuit.
Wyoming Highway Patrol Trooper Jared Williams, Crook County
Sheriff Jeff Hodge, and Crook County Sheriff's Deputy
Jason Robinson each testified about their involvement in the
highway pursuit. Their testimony reflected that Mr. Nesius
did not maintain a single lane. Sheriff Hodge testified that
Mr. Nesius "cross[ed] over the fog line" numerous
times, "cross[ed] over the centerline," drove
"a little ways down through the centerline," and
"passed a vehicle on the right shoulder of the
road." Mr. Nesius was "pretty consistent, . . .
just swerving over the centerline, fog line." Trooper
Williams added that Mr. Nesius did not fail to maintain a
lane just once, he did so "for a few miles." The
officers also testified that Mr. Nesius did not maintain one
speed on the highway. Sheriff Hodge stated that Mr. Nesius
drove "73, 74, 100, 103, back down to 80-some miles an
hour," and characterized his speed as "pretty
sporadic." Deputy Robinson noted that Mr. Nesius'
"vehicle speeds fluctuated from in the low 70s to in
excess of a hundred miles an hour."
The State's evidence reflected that officers
unsuccessfully attempted to stop Mr. Nesius with spike
strips. The pursuit continued until Mr. Nesius clipped the
back end of a motorcycle with the front of his truck, causing
both his truck and the motorcycle to lose control and leave
the highway. It appeared to Sheriff Hodge that Mr. Nesius
"was trying to pass the motorcycle and just was not able
to successfully negotiate that pass." While some
officers attended to the motorcyclist and called for
emergency assistance, Trooper Williams and Sheriff Hodge
approached the truck to arrest Mr. Nesius.
When Trooper Williams and Sheriff Hodge initially contacted
Mr. Nesius, he asked them questions such as "[W]hat
happened?" "Am I dead?" and "Am I
alive?" On cross-examination about those questions,
Sheriff Hodge agreed with defense counsel that he had
observed accidents before and those were "fairly
standard kind of questions people ask when you pull them out
of a car." They were not unusual. When asked whether
those were questions "that someone would ask who's
aware of their surroundings," Sheriff Hodge responded,
"[s]omewhat, or unaware of their surroundings."
When asked to "modify" his answer, Sheriff Hodge
clarified his testimony: "I mean, if you're asking
for my judgment on what I've seen in the past, then I
have dealt with people who have be[en] under highly influence
of drugs that thought they were dead. Normally -- on a normal
basis, normal person is not going to ask you if they're
Mr. Nesius refused to exit his truck when officers ordered
him to do so. As a result, Sheriff Hodge and Trooper Williams
had to "drag him out . . . and wrestle with him on the
ground" to handcuff him. Sheriff Hodge characterized Mr.
Nesius as being "[a]bnormally strong." Trooper
Williams added that Mr. Nesius pulled away from them,
screamed, and fought with them while they tried to gain
control of his hands. After they handcuffed him, Mr. Nesius
refused to provide his name. Consequently, Trooper Williams
searched Mr. Nesius' ...