451 P.3d 731 (Wyo. 2019), S-18-0296, Dugan v. State

Docket Nº:S-18-0296
Citation:451 P.3d 731, 2019 WY 112
Opinion Judge:KAUTZ, Justice.
Party Name:Lewis Alan DUGAN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
Attorney: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, Deput...
Judge Panel:Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ. DAVIS, Chief Justice, dissenting, in which FOX, J., joins.
Case Date:November 06, 2019
Court:Supreme Court of Wyoming

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451 P.3d 731 (Wyo. 2019)

2019 WY 112

Lewis Alan DUGAN, Appellant (Defendant),

v.

The STATE of Wyoming, Appellee (Plaintiff).

No. S-18-0296

Supreme Court of Wyoming

November 6, 2019

Page 732

[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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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.

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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

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§ 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.

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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...

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