Popkin v. State, S-18-0104

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtDAVIS, Chief Justice.
Citation429 P.3d 53
Docket NumberS-18-0105,S-18-0104
Decision Date26 October 2018
Parties Joshua R. POPKIN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

429 P.3d 53

Joshua R. POPKIN, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).

S-18-0104
S-18-0105

Supreme Court of Wyoming.

October 26, 2018


Representing Appellant: W. Keith Goody, Attorney at Law, Battle Ground, Washington

Representing Appellee: Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General; Curtis M. McNiven, Senior Assistant Attorney General

Before DAVIS, C.J., and BURKE* , FOX, KAUTZ, and BOOMGAARDEN, JJ.

DAVIS, Chief Justice.

429 P.3d 54
¶1] Appellant Joshua R. Popkin pled no contest to two charges of second degree sexual assault. On appeal, he asserts that the facts alleged in the charges against him did not constitute crimes. We affirm because we conclude that his no-contest pleas waived this appeal issue.

ISSUES

[¶2] Dr. Popkin presents a single issue: Do the facts alleged in this case constitute a crime? The State raises a second issue: By pleading no contest to the charges, did Dr. Popkin waive his only appeal argument?

FACTS

[¶3] Dr. Popkin, a licensed psychologist, was initially charged in August of 2016 with one count of second degree sexual assault by a person in a position of authority. The affidavit of probable cause supporting the charge1 indicated that the alleged victim, E.M., first met Dr. Popkin when she was in the hospital in 2015 and he was her counselor. When she got out of the hospital, she saw another counselor until Dr. Popkin telephoned her and said he would like to be her counselor again. During one of their counselling sessions, Dr. Popkin began to kiss E.M. She related that "she didn’t really know what to do, so she kissed him back." Dr. Popkin told E.M. that traditional therapy had not worked for her. At a session in the summer of 2016, Dr. Popkin brought marijuana oil with him, and E.M. took it. When Dr. Popkin started kissing her and taking off her clothes, E.M. said she "didn’t really want to have sex with him, but [she] did."

[¶4] In April of 2017, in a separate docket, Dr. Popkin was charged with two counts of second degree sexual assault by a person in a position of authority. The affidavit indicated that Dr. Popkin served as counselor to the alleged victim, J.S., in late 2015. J.S. described their counselling sessions as "flirty." During a session at Dr. Popkin’s house, he offered her alcohol and marijuana, began kissing her, and talked about matters of "a very sexual nature." During two sessions in February of 2016, Dr. Popkin had sexual relations and sexual contact with J.S.

[¶5] In August of 2017, Dr. Popkin and the State entered into a plea agreement. Dr. Popkin agreed to plead no contest to the first charge and to one of the later charges, and the State agreed to dismiss the second of the later charges. The State agreed to recommend a sentence of one year in jail followed by supervised probation for a period of ten years. The district court accepted Dr. Popkin’s no contest pleas. However, it rejected the State’s recommendation as to Dr. Popkin’s sentence, and instead sentenced him to three to five years on each charge, with the sentences to be served consecutively.

[¶6] Dr. Popkin filed a notice of appeal, bringing this matter before us. Later, Dr. Popkin filed a motion in the district court seeking to correct an illegal sentence. He asserted that the facts alleged in his case did not constitute a crime because a clinical psychologist is not in a position of authority as that term is used in the applicable Wyoming criminal statute. The district court denied the motion to correct an illegal sentence, and Dr. Popkin appealed that decision. This Court, on its own motion, consolidated the two appeals.

DISCUSSION

[¶7] Dr. Popkin pled no contest to and was convicted on two counts of second degree sexual assault by a person in a position of authority, in violation of

[429 P.3d 55

Wyo. Stat. Ann. § 6-2-303(a)(vi) (LexisNexis 2015). That statute provides:

(a) Any actor who inflicts sexual intrusion on a victim commits sexual assault in the second degree if, under circumstances not constituting sexual assault in the first degree:

* * * *

(vi) The actor is in a position of authority over the victim and uses this position of authority to cause the victim to submit[.]

"Position of authority" is defined by Wyo. Stat. Ann. § 6-2-301(a)(iv) to mean "that position occupied by a parent, guardian, relative, household member, teacher, employer, custodian or any other person who, by reason of his position, is able to exercise significant influence over a person."2

¶8] Dr. Popkin asserts that he was not in a position of...

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3 practice notes
  • Larkins v. State, S-17-0132
    • United States
    • United States State Supreme Court of Wyoming
    • October 26, 2018
    ...been different had these errors not occurred. After reviewing the entire record, we conclude that the result would not have been different.[429 P.3d 53[¶106] The evidence against the Larkins, as the district court recognized in its Rule 21 order, was strong. The State presented, over six da......
  • Protz v. State, S-18-0097
    • United States
    • United States State Supreme Court of Wyoming
    • March 1, 2019
    ...appellate claim by pleading guilty to the crime charged—is also a question of law we review de novo. Popkin v. State , 2018 WY 121, ¶ 11, 429 P.3d 53, 55 (Wyo. 2018) (citation omitted). "A criminal defendant, by pleading guilty, admits all of the essential elements of the crime charged ..........
  • Dahl v. State, S-19-0204
    • United States
    • United States State Supreme Court of Wyoming
    • May 11, 2020
    ...plea waived the issue he raises on appeal " ‘presents a question of law that we review de novo .’ " Popkin v. State, 2018 WY 121, ¶ 11, 429 P.3d 53, 55 (Wyo. 2018) (quoting Redding v. State , 2016 WY 41, ¶ 13, 371 P.3d 136, 140 (Wyo. 2016) ) (other citations omitted). See also, Protz v. Sta......
3 cases
  • Larkins v. State, S-17-0132
    • United States
    • United States State Supreme Court of Wyoming
    • October 26, 2018
    ...been different had these errors not occurred. After reviewing the entire record, we conclude that the result would not have been different.[429 P.3d 53[¶106] The evidence against the Larkins, as the district court recognized in its Rule 21 order, was strong. The State presented, over six da......
  • Protz v. State, S-18-0097
    • United States
    • United States State Supreme Court of Wyoming
    • March 1, 2019
    ...appellate claim by pleading guilty to the crime charged—is also a question of law we review de novo. Popkin v. State , 2018 WY 121, ¶ 11, 429 P.3d 53, 55 (Wyo. 2018) (citation omitted). "A criminal defendant, by pleading guilty, admits all of the essential elements of the crime charged ..........
  • Dahl v. State, S-19-0204
    • United States
    • United States State Supreme Court of Wyoming
    • May 11, 2020
    ...plea waived the issue he raises on appeal " ‘presents a question of law that we review de novo .’ " Popkin v. State, 2018 WY 121, ¶ 11, 429 P.3d 53, 55 (Wyo. 2018) (quoting Redding v. State , 2016 WY 41, ¶ 13, 371 P.3d 136, 140 (Wyo. 2016) ) (other citations omitted). See also, Protz v. Sta......

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