from the District Court of Teton County The Honorable Timothy
C. Day, Judge.
Christopher Lundberg, Spitzer Law, PLLC, Victor, Idaho
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 Mark Byerly guilty of six offenses: aggravated
assault and battery; domestic battery; strangulation of a
household member; two counts of violating a protective order;
and witness intimidation. He asserts numerous errors on
appeal, but finding no grounds for reversal, we affirm.
Mr. Byerly presents six issues on appeal, which we restate as
1) Did the district court err in denying Mr. Byerly's
W.R.Cr.P. 33 motion for a new trial based on the State's
alleged failure to disclose exculpatory evidence?
2) Did the district court err in denying Mr. Byerly's
W.R.A.P. 21 motion for a new trial based on his several
claims of ineffective assistance of counsel?
3) Did the State commit prosecutorial misconduct by vouching
for the credibility of the victim and by failing to correct
4) Did the district court err in joining charges against Mr.
Byerly for trial?
5) Did the district court err in denying Mr. Byerly's
motion for a Daubert hearing on the testimony of the
State's domestic violence expert?
6) Did cumulative error warrant reversal of Mr. Byerly's
The State responds to those issues and presents the
additional question of whether Mr. Byerly's appeal should
be dismissed for failure to comply with the Wyoming Rules of
Mark Byerly met Michele Pickerill in 2011, and they dated off
and on until August 2013. They began dating again in May of
2014, and they dated and lived together off and on until
January 2016. On January 13, 2016, Ms. Pickerill broke up
with Mr. Byerly. On January 19, she invited him over, and he
stayed the night. The next day, they texted back and forth
about getting together that evening for dinner, without
alcohol, so they could discuss the future of their
That evening, a friend of Ms. Pickerill's invited her to
join her and her husband for a drink to celebrate the
friend's birthday. She agreed and met them at a local bar
where she drank beer and ate nachos. While there, Ms.
Pickerill received a text message from Mr. Byerly telling her
where he was and asking her to join him.
A. . . . Mark texted and said, "I'm at The Moose,
come over here." So I did, that was about 6:30, quarter
to 7:00. When I went upstairs at The Moose all our ski
friends were there, a group of guys. I could pretty much tell
right away that Mark had had several.
A. Beers, you know. After skiing, you know, four o'clock
you start drinking. It was 6:30, seven o'clock by then. A
mutual friend of ours bought me a beer and a shot because
that's what they were doing. Mark started to get a little
agitated. My friend Kim and Josh her boyfriend showed up. She
finished work at 7:00.
Q. I'm going to stop you and back you up a little bit. Do
you know what caused [him] to get agitated?
A. I don't recall what was said that started him getting
mad at me.
Q. Okay. Please continue.
A. Stood in the group of friends talking. Mark was saying
some pretty nasty things to me again. I was like, "You
know, we're not talking tonight. We're not going to
dinner. I'm leaving. We're done. I don't need
Was attempting to leave when he said, "No, you're
not going anywhere."
By then Kim and Josh had shown up. Kim could tell by the look
on my face that I wasn't happy. Mark was standing to my
left and he had his hand on my back, holding my shirt. Kim
looked at me and said, "Do you want to go?"
And I said, "Yeah."
And Mark in my ear said, "You're not fucking going
So, Kim and Josh left. Like, we gave her an opportunity to
leave and she's not going, we're out. They left. One
by one all the ski buddies left. Mark at one point had me by
my collar, shaking me, just the usual yelling, you know,
stuff that he does. At one point I looked over his shoulder
and saw the bartender and gave the bartender a look like
could you help me out here. He looked the other way.
Finally Mark let go and I proceeded to leave. By the time I
got downstairs and made it out the front door of The Moose I
felt Mark grab my elbow. He walked me out the front door.
Mr. Byerly and Ms. Pickerill argued in the parking lot, and
Mr. Byerly grabbed her by the collar again and shook her. Ms.
Pickerill then saw four people walking through the parking
lot some distance from them and yelled to them for help.
That really pissed him off so he put his hand over my mouth
and spun me around real quick and from behind he walked me
over to a snowbank and threw me down. I don't know if it
was his knee, hand, what he had on my back, but he held me in
the snowbank, I don't know, ten seconds. And I felt this
is it, I want to go [sic] too far. He's probably going to
fucking kill me now and my kids are going to be real upset
with me. I didn't get out soon enough.
I thought he was going to kill me. When I tried to breathe I
couldn't breathe anything but snow. The entire time my
head was in the snowbank he's screaming, "You
fucking bitch, you don't understand how much I fucking
love you, Michele. You just don't know how much I fucking
I thought you've got to be kidding me, you fucking love
me and you're trying to kill me. He finally let go and I
got up. He started walking to his truck and I started running
the other way and turned around and said, "Don't you
ever fucking come near me again," and ran.
Three days later, on January 23, 2016, Ms. Pickerill reported
the January 20 incident to law enforcement. On January 25,
2016, she completed an application for an order of protection
against Mr. Byerly, and on February 9, 2016, following an
evidentiary hearing, an order of protection was entered. On
July 8, 2016, the State filed a criminal information against
Mr. Byerly, followed by an amended information on July 12,
2016. As amended, the information charged Mr. Byerly with the
following ten offenses, which we summarize as follows:
Count 1: Domestic Battery. This charge was
based on abuse that was alleged to have occurred on May 6,
2015. Ms. Pickerill alleged that she met Mr. Byerly for a
couple of beers, and then he came to her home and they
argued. She further alleged that during the argument, he tore
her bed apart, threw things, and grabbed her by the wrists
and shook her so hard that her head hit the floor ten to
Count 2: Property Destruction. This charge
stemmed from the Count 1 incident and alleged damage to a
lamp during the incident.
Count 3: Domestic Battery. This charge was
based on abuse that was alleged to have occurred on July 25,
2015. Ms. Pickerill alleged that Mr. Byerly picked her up
from paddle boarding, they went to dinner, and then got into
an argument on the way home. She further alleged that he
pulled his truck into a parking area on Adams Canyon Road,
and once out of the truck, he chased her around it, threw her
belongings out and at her, and eventually started throwing
rocks at her.
Count 4: Domestic Battery. This charge was
based on abuse that was alleged to have occurred on August
12, 2015. Ms. Pickerill alleged that while she was having
dinner with Mr. Byerly at a brewpub, they began to argue and
he was kicked out of the restaurant. She further alleged that
after she had their food boxed and paid the bill, she went
out to her vehicle and found Mr. Byerly waiting for her. She
alleged that he threw the food at her and threw her against
the vehicle, causing her to hit her head.
Count 5: Aggravated Assault and Battery.
This charge was based on abuse that was alleged to have
occurred on October 11, 2015. Ms. Pickerill alleged that
after she spent the day goose hunting with Mr. Byerly, they
drank beer on the way home, and once home they got into an
argument. She further alleged that the argument escalated,
and he threw her cell phone at her, and it hit her sloped
bedroom ceiling. She alleged that he then jumped on top of
her, threw coconut oil all over her and her bedroom, and that
while he was holding onto her and squeezing her face, she bit
him. She alleged that he responded by hitting her across the
side of her head, which caused a perforated eardrum on her
left side, a temporary loss of hearing, and persistent jaw
Count 6: Property Destruction. This charge
stemmed from the Count 5 incident and alleged damage to Ms.
Pickerill's bedroom ceiling where the cellphone hit it,
and damage to the carpet from the coconut oil.
Count 7: Domestic Battery. This charge was
based on abuse that was alleged to have occurred on January
13, 2016. Ms. Pickerill claimed that on that evening, she and
Mr. Byerly were at a brewpub with friends, and he offended
her by kissing another woman. She further alleged that she
left the brewpub and told him not to come to her home that
evening, but he did anyway. She alleged that he came to her
bedroom, where they argued, and he grabbed her by the wrists
and shook her, which caused her pain.
Count 8: Domestic Battery. This count is
based on the events of January 20, 2016 at the Mangy Moose.
Count 9: Strangulation of a Household
Member. This count is also based on the events of
January 20, 2016 at the Mangy Moose.
Count 10: Violating an Order of Protection.
This count alleged that on or about April 5, 2016, Mr. Byerly
violated the order of protection by indirectly communicating
with Ms. Pickerill. Ms. Pickerill claimed that Mr. Byerly
left boxes of items with his attorney that purportedly
belonged to Ms. Pickerill, but instead contained items meant
to indirectly communicate with her, including books with
pages dog-eared and passages highlighted, a birthday card she
had given him when they were together, two dirty sweatshirts
she had given him when they were together, a couple of
bottles of Coors Light, and a half-empty bottle of wine.
On December 12, 2016, while the above-summarized charges were
pending, Tim Bohan, a mutual friend of Mr. Byerly and Ms.
Pickerill, approached Ms. Pickerill at a brewpub where she
was having a drink with a friend.
A. We sat down, Tim approached us. Kim was sitting to my
right, Tim was between us, I on the left.
And Tim said, "I've really been wanting to talk to
And months prior to this - Tim is a mutual friend of Mark and
mine. When this all went down Tim and I were discussing
things one night, it really puts Tim in the middle. I said,
"Tim, let's just have an understanding right now.
You and I do not talk about Mark and I, okay? That way you
can remain friends with both of us. Just let's agree on
that right now." And he agreed.
So that night when he approached us he said, "I'm
just really torn. I don't know what to do. I had
breakfast with Mark the other morning and he wants me to tell
And I put my hands up and said, "Don't. No. Stop
Q. You literally put your hands up?
A. I literally put my hands up and said, "Stop right
Q. Did Ms. Trantham respond?
A. She just kind of sat there watching going, "What?
What?" I believe she said something like, Tim, you
shouldn't, you shouldn't, referring to the
Q. Did - what did Mr. Bohan do next?
A. He said, "Well, I've been sitting on this for a
while and I've talked to other friends and everybody says
I should leave it alone. But being your friend, Michele,
I'm a little worried about what Mark's telling
Of course it got my curiosity up. I was like, "Really,
we should just drop it."
He said, "No, I'm a little worried. Mark wants me to
tell you, you'd better drop this case or else."
I said, "Or else what?"
And he said, "Well, he's convinced that you've
tampered with the photos you presented of your arms.
You've doctored them somehow. He's going to prove
that you did that and when you finally do take the stand
you're going to be charged with perjury and he
doesn't want to see you go to jail."
Ms. Pickerill reported the incident to law enforcement, and
Detective Chad Sachse of the Teton County Sheriff's
Office interviewed Mr. Bohan. Mr. Bohan admitted delivering
the message to Ms. Pickerill as she described it, and he
admitted that he did so at Mr. Byerly's request. On
December 14, 2016, the State filed a second information
against Mr. Byerly alleging one count of influencing,
intimidating, or impeding a witness, and one count of
violating an order of protection. Both counts were based on
Mr. Bohan's message to Ms. Pickerill on December 12.
On March 28, 2017, the State filed a motion to join the cases
for trial, to which Mr. Byerly did not object. On April 28,
2017, the district court entered an order joining the two
cases for trial. On July 17, 2017, the joined cases went to
trial, and on July 21, the case was submitted to the jury,
and it returned its verdict. It found Mr. Byerly not guilty
on six of the charges: Count 1 (May 6, 2015 Domestic
Battery); Count 2 (May 6, 2015 Property Destruction); Count 3
(July 25, 2015 Domestic Battery); Count 4 (August 12, 2015
Domestic Battery); Count 6 (October 11, 2015 Property
Destruction); and Count 7 (January 13, 2016 Domestic
Battery). It found him guilty of the remaining six charges:
Count 5 (October 11, 2015 Aggravated Assault and Battery);
Count 8 (January 20, 2016 Domestic Battery); Count 9 (January
20, 2016 Strangulation of a Household Member); Count 10
(April 5, 2016 Violating an Order of Protection); Count 11
(December 12, 2016 Influencing, Intimidating, or Impeding
Witnesses); and Count 12 (December 12, 2016 Violating an
Order of Protection).
On December 1, 2017, the district court sentenced Mr. Byerly
to a combined sentence of one year in county jail on the
misdemeanor convictions, and to prison terms on the felony
convictions. The sentences on the felony convictions were
suspended in favor of seven years of supervised probation.
Mr. Byerly timely appealed to this Court. On March 27, 2018,
he filed a W.R.A.P. 21 motion for a new trial based on
numerous claims of ineffective assistance of trial counsel.
This Court then stayed briefing on the appeal.
The district court held an evidentiary hearing, and on
September 17, 2018, it issued an order denying Mr.
Byerly's Rule 21 motion. Mr. Byerly filed a timely notice
of appeal to this Court, and we entered an order lifting the
stay and setting a briefing schedule.
On January 22, 2019, Mr. Byerly filed a second motion for a
new trial, this time pursuant to W.R.Cr.P. 33(c). As grounds
for this motion, he claimed that the State withheld
exculpatory evidence in the form of data downloads from Ms.
Pickerill's electronic devices, and that he was therefore
entitled to a new trial. This Court again stayed briefing on
Mr. Byerly's appeal.
On March 22, 2019, following an evidentiary hearing, the
district court denied Mr. Byerly's Rule 33(c) motion, and
Mr. Byerly again filed a timely notice of appeal to this
Court. This Court then consolidated Mr. Byerly's appeals,
lifted the stay on briefing, and set a briefing schedule.
We will first address the State's contention that Mr.
Byerly's appeal should be dismissed for failure to comply
with the Wyoming Rules of Appellate Procedure. Then we will
turn to Mr. Byerly's claims of error, which we address in
a different order to provide an efficient discussion.
State's Request for Dismissal
The State points to a number of deficiencies in Mr.
Byerly's brief, including its failure to set forth a
separate statement of issues for review, its failure to
include a statement of the case setting out the relevant
facts and procedural history, and its failure in portions of
the briefing to provide required citations to the record.
See W.R.A.P. 7.01. Based on these deficiencies, the
State asks that we not consider Mr. Byerly's appeal.
While we agree that the brief is deficient, we have
previously expressed our reluctance to dismiss criminal
appeals on such grounds.
We agree with the State that Leger was remiss in his failure
to prepare a brief that complies with our Rules of Appellate
Procedure. We do not choose to dismiss the appeal for that
reason, however. Leger clearly failed to comply with the Rule
of Appellate Procedure that requires his brief contain
separate sections briefly describing the nature of the case
and the course of proceedings. See Wyo.R.App.P.
5.01(3), now 7.01(e)(1). Furthermore, Leger failed to
include page references to the record in his statement of the
facts. See Wyo.R.App.P. 5.01(3), now
On a number of occasions we have warned members of our bar
that we may dismiss an appeal for failure to comply with the
Wyoming Rules of Appellate Procedure. See Wyoming Game
and Fish Comm'n v. Thornock, 851 P.2d 1300 (Wyo.
1993); Coones v. Fed. Deposit Ins. Corp., 848 P.2d
783 (Wyo. 1993); Inter-Mountain Threading v. Baker Hughes
Tubular Serv., Inc., 812 P.2d 555 (Wyo. 1991);
Jung-Leonczynska v. Steup, 782 P.2d 578 (Wyo. 1989),
appeal after remand, 803 P.2d 1358 (Wyo. 1990);
V-1 Oil Co. v. Ranck, 767 P.2d 612 (Wyo. 1989). We
do not retreat from that admonition, but the sanction of
dismissal must be reserved primarily for civil cases. The
dismissal of a criminal case simply confronts the court with
a further claim of ineffective assistance of appellate
counsel. Since the record in this case is not long, and the
relevant portions of the record to permit review of the
issues presented are easily found, our review has not been
hampered by Leger's failure to comply with the Rules of
Appellate Procedure. See Steup.
Leger v. State, 855 P.2d 359, 362-63 (Wyo. 1993).
Unlike the record in Leger, the record in this case
is extensive, covering a five-day jury trial and two motions
for a new trial, each of which had its own evidentiary
hearing. Nonetheless, we are able to discern Mr. Byerly's
issues from the manner in which he headed his arguments, and
we thus remain reluctant to dismiss the appeal. As usual,
however, we will not consider arguments that are unsupported
by cogent argument, cites to the record, and relevant
authority. See Osban v. State, 2019 WY 43, ¶ 7
n.2, 439 P.3d 739, 741 n.2 (Wyo. 2019) ("An appellant is
required to present this court with relevant authority and
cogent argument. It is not enough to identify a potential
issue with the expectation that this court will flesh out the
matter from there. The appellant, at a minimum, must attempt
to relate the rule of law he depends upon to the facts of his
case.") (quoting Sonnett v. First American Title
Ins. Co., 2013 WY 106, ¶ 26, 309 P.3d 799, 808
(Wyo. 2013)). Additionally, we have held that we will not
consider arguments that are supported by no more than a
reference to arguments made to the district court.
Appellant's argument cited neither pertinent authority
nor made cogent argument. Appellant also incorporated by
reference trial briefs contained in the record rather than
the parts of the record relied on as directed by Wyo.R.App.P.
7.01(f). See Scherling v. Kilgore, 599 P.2d 1352
(Wyo. 1979) (noting that this method does not comply with the
Davis v. Big Horn Basin Newspapers, Inc., 884 P.2d
979, 983 (Wyo. 1994).
We turn then to Mr. Byerly's claims, addressing first his
claim of prosecutorial misconduct.
Mr. Byerly claims the State committed prosecutorial
misconduct by vouching for the victim's credibility and
by failing to correct false testimony. He did not object
below, so we review these claims for plain error. Herrera
v. State, 2019 WY 93, ¶ 21, 448 P.3d 844, 850 (Wyo.
2019). To establish plain error, an appellant must show that:
"(1) the alleged error clearly appears in the record;
(2) the alleged error clearly and obviously violates a clear
and unequivocal rule of law; and (3) the alleged error
affects a substantial right" to his material prejudice.
Cole v. State, 2017 WY 87, ¶ 9, 399 P.3d 618,
620 (Wyo. 2017); see also Brown, ¶ 19, 332 P.3d
at 1175. To satisfy the prejudice element of the plain error
standard, a defendant must demonstrate a reasonable
probability that he would have obtained a more favorable
trial verdict without the error. Larkins v. State,
2018 WY 122, ¶ 94, 429 P.3d 28, 50 (Wyo. 2018).
Herrera, ¶ 24, 448 P.3d at 850-51 (quoting
Nielsen v. State, 2018 WY 132, ¶ 23, 430 P.3d
740, 748 (Wyo. 2018)).
To establish prosecutorial misconduct, Mr. Byerly must show
"a prosecutor's improper or illegal act (or failure
to act)." Dixon v. State, 2019 WY 37, ¶
37, 438 P.3d 216, 231 (Wyo. 2019) (quoting Craft v.
State, 2013 WY 41, ¶ 13, 298 P.3d 825, 829 (Wyo.
2013)). "Allegations of prosecutorial misconduct are
settled by reference to the entire record and 'hinge on
whether a defendant's case has been so prejudiced as to
constitute denial of a fair trial.'" Mraz v.
State, 2016 WY 85, ¶ 60, 378 P.3d 280, 294 (Wyo.
2016) (quoting Hill v. State, 2016 WY 27, ¶ 59,
371 P.3d 553, 568 (Wyo. 2016)).
Vouching for Credibility of the Victim
"Wyoming law is clear that a prosecutor may not elicit
opinions concerning witness credibility or personally vouch
for the credibility of a witness." Collins v.
State, 2015 WY 92, ¶ 34, 354 P.3d 55, 64 (Wyo.
2015) (quoting Fennell v. State, 2015 WY 67, ¶
31, 350 P.3d 710, 722 (Wyo. 2015)). Vouching occurs when a
prosecutor offers his opinion of a witness's credibility,
as distinguished from when he infers credibility from the
same evidence the jury has before it. Collins,
¶ 36, 354 P.3d at 64-65 (quoting Fennell,
¶ 43, 350 P.3d at 725).
Mr. Byerly's first claim of vouching is based on a
statement by the prosecutor at the conclusion of his direct
examination of the victim. He stated, "Ms. Pickerill, I
know it's been a very long day and I know this is hard to
go back through. I appreciate your candor and your
diligence." The record clearly reflects the comment so
the first prong of the plain error analysis is met.
We also find that the comment violated a clear and
unequivocal rule of law and therefore find the second prong
met. "Candor" can be defined in different ways, but
among its meanings is honesty. See Merriam-Webster's
Collegiate Dictionary 179 (11th ed. 2007). The
prosecutor's comment can thus be fairly viewed as
thanking the victim for her honest testimony, and it
effectively communicated the prosecutor's opinion that
her testimony was truthful. The comment was improper vouching
and should not have been made. See Black v. State,
2017 WY 135, ¶¶ 31-32, 405 P.3d 1045, 1055-56 (Wyo.
2017) (improper vouching in prosecutor's comments that a
particular police officer was good and that lead detective
had done unbelievable police work); Hill, ¶ 49,
371 P.3d at 566 (improper vouching in prosecutor's
comment that State's expert was "one of the best
witnesses that I have seen testify").
As to the remaining prong of our plain error analysis,
however, we are unable to find that the error materially
prejudiced Mr. Byerly. There was but a single remark, and the
jury returned not guilty verdicts on several charges for
which Ms. Pickerill's testimony was the primary if not
only supporting evidence. We cannot conclude from this record
that there was sufficient prejudice to have denied Mr. Byerly
a fair trial. Mraz, ¶ 60, 378 P.3d at 294.
Testimony of Victim's Dentist
The second instance of alleged improper vouching came during
the testimony of Ms. Pickerill's dentist, Dr. Carol
Owens, which Mr. Byerly claims the prosecutor then improperly
emphasized during his closing argument. Dr. Owens testified:
Q. And again, this may seem like a silly question, but if you
have the need for a root canal does that mean ...