               IN THE SUPREME COURT, STATE OF WYOMING

                                       2015 WY 119

                                                            APRIL TERM, A.D. 2015

                                                               September 11, 2015


JOHN WAYNE BUTLER,

Appellant
(Defendant),

v.                                                   S-15-0001

THE STATE OF WYOMING,

Appellee
(Plaintiff).


                   Appeal from the District Court of Campbell County
                         The Honorable John R. Perry, Judge

Representing Appellant:
      Office of the State Public Defender: Diane M. Lozano, State Public Defender;
      Tina N. Olson, Chief Appellate Counsel; David E. Westling, Senior Assistant
      Appellate Counsel.

Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Joshua C.
      Eames, Assistant Attorney General.

Before BURKE, C.J., and HILL, KITE*, DAVIS, and FOX, JJ.

* Justice Kite retired from judicial office effective August 3, 2015, and pursuant to Article 5,
§ 5 of the Wyoming Constitution and Wyo. Stat. Ann. § 5-1-106(f) (LexisNexis 2015), she was
reassigned to act on this matter on August 4, 2015.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
FOX, Justice.

[¶1] A jury convicted John Wayne Butler of one count of second-degree sexual abuse
of a minor. He appeals, arguing there was insufficient evidence to sustain the conviction,
the district court abused its discretion in sentencing him to incarceration instead of
probation, and the district court considered inappropriate factors in its sentencing
decision. We affirm.

                                          ISSUES

[¶2]   1. Was there sufficient evidence presented to sustain Mr. Butler’s conviction?

      2. Did the district court abuse its discretion when it denied Mr. Butler probation
and sentenced him to serve time in prison?

        3. Did the district court commit plain error by considering inappropriate factors
in its sentencing decision?

                                          FACTS

[¶3] In June 2010, Mr. Butler drove his fifteen-year-old niece, H.H., to an eye doctor
appointment. H.H. testified that she and Mr. Butler arrived at the appointment and
“[c]hatted for a bit” while they waited in the car. Mr. Butler asked “if he could show
[her] something,” and she replied “yes.” Mr. Butler began massaging H.H.’s breasts and
touching her vaginal area over her pants. Telling her to relax, Mr. Butler put his hand
under H.H.’s jeans and “inside of [her] genitals.” Mr. Butler asked her “if it felt good”
and told her “he’d like to teach [her] some more things later” before she left the car to go
to her appointment. After H.H.’s appointment, Mr. Butler drove her home. H.H. did not
report the abuse until February 2014, explaining that she “was embarrassed” and scared
of her uncle.

[¶4] Mr. Butler was charged with second-degree sexual abuse of a minor, and
following a jury trial, he was found guilty of the charged crime. At sentencing, the
district court judge referenced his judicial experience stating, “I’ve done this now for a
very long time[,]” and after reviewing the Presentence Investigation Report (PSI) “very
carefully[,]” the judge expressed his belief “experientially” that the PSI’s finding of a low
risk of re-offense was “wrong.” The district court considered community placement
options as well as probation, but agreed with the PSI’s recommendation that Mr. Butler
was “not an appropriate candidate” for either, and sentenced Mr. Butler to a period of
seven to fifteen years incarceration. Mr. Butler timely filed his notice of appeal.




                                             1
                                      DISCUSSION

I.   Was there sufficient evidence presented to sustain Mr. Butler’s conviction?

[¶5] After the State rested its case at trial, Mr. Butler moved for a judgment of
acquittal, arguing that the State failed to present sufficient evidence to establish a prima
facie case. The district court denied Mr. Butler’s motion, finding that the State had met
its burden. Mr. Butler then proceeded to present evidence to the jury, thereby waiving his
right to challenge the district court’s denial of his motion on appeal. Bruce v. State, 2015
WY 46, ¶ 55, 346 P.3d 909, 926 (Wyo. 2015) (“[A] defendant’s introduction of evidence
following denial of a judgment of acquittal is a waiver of the appeal of that motion.”);
Hawes v. State, 2014 WY 127, ¶ 8, 335 P.3d 1073, 1076 (Wyo. 2014) (same). Mr. Butler
failed to make a similar motion at the close of evidence or when the jury returned its
verdict, precluding our review of the district court’s decision denying Mr. Butler’s
motion for judgment of acquittal. Bruce, 2015 WY 46, ¶ 55, 346 P.3d at 926 (“Where a
defendant introduces evidence after denial of a motion for judgment of acquittal made at
the end of the State’s case, he waives that motion, and only a similar motion made after
return of the verdict may be claimed as error.” (citation omitted)); Robinson v. State, 11
P.3d 361, 368 (Wyo. 2000) (“[I]t is our rule of law that introducing evidence waives the
earlier motion and only the later motion may be claimed as error.”).

[¶6] Though Mr. Butler waived his right to appeal the district court’s denial of his
motion for judgment of acquittal, he has not waived his right to raise the issue of
insufficient evidence on appeal. Hawes, 2014 WY 127, ¶ 8, 335 P.3d at 1076. Our
standard of review in such cases states:

                     In addressing a claim of insufficiency of the evidence,
              we must determine whether any rational trier of fact could
              have found the essential elements of the crime beyond a
              reasonable doubt.       When considering a claim of the
              sufficiency of the evidence, we review that evidence with the
              assumption that the evidence of the prevailing party is true,
              disregard the evidence favoring the unsuccessful party, and
              give the prevailing party the benefit of every favorable
              inference that we may reasonably draw from the evidence.
              We will not reweigh the evidence nor will we re-examine the
              credibility of the witnesses.

Mendoza v. State, 2007 WY 26, ¶ 3, 151 P.3d 1112, 1113 (Wyo. 2007) (citing Perritt v.
State, 2005 WY 121, ¶ 9, 120 P.3d 181, 186 (Wyo. 2005)). Our analysis of Mr. Butler’s
argument also requires us to engage in an interpretation of statutory language, which we
do de novo. Qwest Corp. v. Pub. Serv. Comm’n of Wyo., 2007 WY 97, ¶ 3, 161 P.3d 495,
497 (Wyo. 2007).


                                             2
[¶7] The thrust of Mr. Butler’s argument on appeal focuses on statutory construction.1
When interpreting a statute, “[o]ur paramount consideration is the legislature’s intent as
reflected in the plain and ordinary meaning of the words used in the statute.” Horse
Creek Conservation Dist. v. State ex rel. Wyo. Attorney General, 2009 WY 143, ¶ 14,
221 P.3d 306, 312 (Wyo. 2009). Mr. Butler argues that there is insufficient evidence to
demonstrate that he occupied a position of authority over the victim or that he asserted
that authority as is required for a conviction under the statute.

[¶8] Mr. Butler was convicted under Wyo. Stat. Ann. § 6-2-315(a)(iv) (LexisNexis
2015), which states in pertinent part:

                      (a) . . . [A]n actor commits the crime of sexual abuse
               of a minor in the second degree if:

                ....

                             (iv) Being eighteen (18) years of age or older,
                       the actor engages in sexual contact with a victim who
                       is less than sixteen (16) years of age and the actor
                       occupies a position of authority in relation to the
                       victim.

[¶9]   “Position of authority” is statutorily defined as:

               [T]hat 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[.]

Wyo. Stat. Ann. § 6-2-301(a)(iv) (LexisNexis 2015). The evidence elicited at trial
demonstrated that Mr. Butler is H.H.’s uncle by marriage, and Mr. Butler does not
dispute this fact. “Relative” is defined as: “A person connected with another by blood or
affinity; a person who is kin with another.” Black’s Law Dictionary 1315 (8th ed. 2004).


1
  The State addresses a number of arguments that it contends Mr. Butler asserted in his opening brief
concerning the sufficiency of the evidence. A review of Mr. Butler’s brief, however, reveals that Mr.
Butler only briefly mentioned these issues in the opening sentence of his argument when he stated, “Four
years after the fact, with no physical evidence and no corroboration of the actual event, John Wayne
Butler was convicted by less than 500 words of direct testimony.” This passing reference is insufficient
to preserve these issues on appeal. See Boucher v. State, 2011 WY 2, ¶ 32, 245 P.3d 342, 357-58 (Wyo.
2011) (refusing to consider “issues that are unaccompanied by cogent argument or citation to pertinent
legal authority”).


                                                   3
Because Mr. Butler is connected with H.H. by affinity, he qualifies as a relative to H.H.,
and therefore occupies a position of authority in relation to H.H. Wyo. Stat. Ann. § 6-2-
315(a)(iv).

[¶10] Mr. Butler contends that despite establishing his position as H.H.’s “relative,” the
State had the additional burden of proving that he used this position to exercise
significant influence and cause H.H. to submit to a sexual assault. This argument is
misplaced. In interpreting the statutory definition of “position of authority,” we have
repeatedly distinguished the enumerated categories from the catchall category. Rogers v.
State, 2015 WY 48, ¶ 15, 346 P.3d 934, 938 (Wyo. 2015); Solis v. State, 2013 WY 152,
¶¶ 27-32, 315 P.3d 622, 629-30 (Wyo. 2013); Baldes v. State, 2012 WY 67, ¶ 9, 276 P.3d
386, 388 (Wyo. 2012); Scadden v. State, 732 P.2d 1036, 1042 (Wyo. 1987). The
enumerated categories encompass parents, guardians, relatives, household members,
teachers, employers, and custodians. Wyo. Stat. Ann. § 6-2-301(a)(iv). The catchall
category includes “any other person who, by reason of his position, is able to exercise
significant influence over a person[.]” Id. If an actor falls within one of the enumerated
categories, the State need not prove that he was able to exercise significant influence over
the victim. Instead, that additional element is only required to be established by the State
if the actor qualifies under the catchall category. The reason for the distinction lies in the
fact that an individual who falls within one of the enumerated categories is already in a
position of significant influence based on implicit social norms. Faubion v. State, 2010
WY 79, ¶ 17, 233 P.3d 926, 930 (Wyo. 2010) (“One in a position of authority is a person
who acquires that status by virtue of society and its system of laws granting to him the
right of control over another.” (quoting Scadden, 732 P.2d at 1042)). Mr. Butler was
tried and convicted based on his position as H.H.’s “relative,” one of the enumerated
categories. Thus, the State was not required to demonstrate that he was able to exercise
significant influence over H.H.

[¶11] The State established that Mr. Butler occupied a position of authority in relation to
H.H., which is all that was required under the statute. A rational jury could have
determined that this essential element of the crime had been proven beyond a reasonable
doubt. Thus, there was sufficient evidence to sustain Mr. Butler’s conviction.

II.   Did the district court abuse its discretion when it denied Mr. Butler probation and
      sentenced him to serve time in prison?

[¶12] “[W]hen the district court’s imposition of a criminal sentence is within the limits
set by the legislature, the sentence will not be overturned, absent a clear abuse of
discretion.”2 Hubbard v. State, 2008 WY 12, ¶ 27, 175 P.3d 625, 630 (Wyo. 2008). “[I]t
is a very difficult bar for an appellant to leap seeking to overturn a sentencing decision on

2
 The statutory maximum sentence for a violation of Wyo. Stat. Ann. § 6-2-315(a) is twenty years. Wyo.
Stat. Ann. § 6-2-315(b) (LexisNexis 2015).


                                                 4
an abuse of discretion argument[,]” due in large part to the wide variety of factors a
district court can consider in its sentencing disposition. Croy v. State, 2014 WY 111, ¶ 7,
334 P.3d 564, 567 (Wyo. 2014). These include “victim impact statements, PSIs, and
other factors relating to the defendant and his crimes[.]” Deeds v. State, 2014 WY 124,
¶ 22, 335 P.3d 473, 479 (Wyo. 2014) (quoting Noller v. State, 2010 WY 30, ¶ 13, 226
P.3d 867, 871 (Wyo. 2010)).

[¶13] The district court’s oral sentencing decision consists of two paragraphs:

                    As [defense counsel] has probably told you, as most
             people here know, I’ve done this now for a very long time.
             I’ve considered the Presentence Investigation Report very
             carefully. And this is one of those where experientially I
             believe that the risk of re-offense as stated there is wrong.
             I’ve considered every community placement. I’ve considered
             every other option. I find you’re not an appropriate candidate
             for probation or other community placement.

                    I do my own assessments of PSIs, and it’s my
             assessment that I will adopt today. The Court will sentence
             you to not less than seven nor more than 15 years.

[¶14] Mr. Butler first argues that the district court abused its discretion when it
considered its own experience during sentencing. Judicial discretion is composed of
conclusions drawn from objective criteria and exercising sound judgment with regard to
what is right under the circumstances, without doing so arbitrarily or capriciously.
Vaughn v. State, 962 P.2d 149, 151 (Wyo. 1998). In this case, the district court relied on
its past experience to assess the PSI and determine Mr. Butler’s sentence. The district
court’s sentence, in fact, conformed with the PSI’s recommendation that Mr. Butler be
sentenced to a term of incarceration. Because other objective factors were considered,
the district court’s reflection of past experience was not arbitrary or capricious. See
Deeds, 2014 WY 124, ¶ 22, 335 P.3d at 479 (“Sentencing judges are given broad
discretion to consider a wide range of factors about the defendant when imposing
sentences.”); see also Thomas v. State, 2009 WY 92, ¶ 13, 211 P.3d 509, 513 (Wyo.
2009) (“[T]he court certainly may include the trial evidence in its sentencing
considerations. Indeed it would be unusual, if not impossible, for a court to do
otherwise.”). In State v. Tully, 430 So.2d 124, 127 (La. Ct. App. 2d Cir. 1983), a
Louisiana court faced a similar issue when a trial court considered its previous experience
during sentencing. On appeal, the sentence was affirmed and the appellate court stated:

             [A] sentencing judge is not required to determine sentences in
             a vacuum. Though it would be error for a sentencing judge to
             consider only his past experience or to give his past


                                            5
              experience controlling weight over other factors, past
              experience is an appropriate factor for the sentencing judge to
              consider along with the facts of the particular case before
              him.

Tully, 430 So.2d at 127. The district court did not abuse its discretion when it applied its
past experience to its assessment of the information presented to it for sentencing.

[¶15] Mr. Butler also contends that the district court abused its discretion when it
sentenced him to incarceration instead of probation, despite the risk assessment contained
in the PSI which indicated that the risk of recidivism was low. Although a district court
is not obligated to grant probation, it is obligated to consider it, and if an application for
probation is not granted, the court must include a written statement in the sentence
recognizing the application was considered. Cohee v. State, 2005 WY 50, ¶ 15, 110 P.3d
267, 272 (Wyo. 2005); see also W.R.Cr.P. 32(c)(2)(D). The district court expressly
stated that it considered probation, but found Mr. Butler was not an appropriate
candidate. The written sentence clearly states that the district court considered “the
advisability of probation.” A district court is “free . . . to consider” PSIs and risk
assessments, meaning it is also within its discretion to give these reports the weight the
district court deems appropriate when imposing a sentence within the statutory range.
Deeds, 2014 WY 124, ¶ 22, 335 P.3d at 479. The district court did not abuse its
discretion when it rejected the risk assessment and considered its past experience during
sentencing.

III. Did the district court commit plain error by considering inappropriate factors in
     its sentencing decision?

[¶16] As a final matter, Mr. Butler contends his right to jury trial was violated when he
was punished at sentencing for exercising that right. Mr. Butler bases this contention on
a statement made by the prosecuting attorney during the sentencing hearing. We
customarily review a district court’s sentencing decision for an abuse of discretion. See
supra ¶ 12; Kelley v. State, 2009 WY 3, ¶ 7, 199 P.3d 521, 523 (Wyo. 2009). “However,
when no objection is made concerning the consideration of a particular factor, review is
necessarily confined to a search for plain error[.]” Id. at ¶ 7, 199 P.3d at 524 (quoting
Hirsch v. State, 2006 WY 66, ¶ 31, 135 P.3d 586, 598 (Wyo. 2006)). “Plain error exists
when ‘1) the record is clear about the incident alleged as error; 2) there was a
transgression of a clear and unequivocal rule of law; and 3) the party claiming the error
was denied a substantial right resulting in material prejudice.’” Deeds, 2014 WY 124,
¶ 21, 335 P.3d at 479 (quoting Anderson v. State, 2014 WY 74, ¶ 40, 327 P.3d 89, 99
(Wyo. 2014)).

[¶17] At sentencing, the prosecutor argued, “Your Honor, as [stated] in the PSI,
probation is not appropriate for Mr. Butler. [The treatment] they have for sex offenders


                                              6
is not appropriate. Mr. Butler takes no responsibility for what he’s done, and, in fact,
blames the victims.” 3 Mr. Butler contends that the prosecutor was implying that by
insisting on taking the case to trial, Mr. Butler was not taking responsibility for his
actions, and that the district court inappropriately considered this factor during
sentencing. Mr. Butler is correct that had the district court punished Mr. Butler at
sentencing for exercising his right to a jury trial, it would have been inappropriate. Guinn
v. State, 2009 WY 15, ¶ 6, 201 P.3d 423, 424 (Wyo. 2009); Thomas, 2009 WY 92, ¶ 13,
211 P.3d at 513. There is nothing in the record demonstrating that the district court
considered Mr. Butler’s insistence on going to trial in its sentencing decision. Thus, Mr.
Butler has failed to establish even the first factor in our plain error review.

                                           CONCLUSION

[¶18] Sufficient evidence was presented at trial to convict Mr. Butler of violating Wyo.
Stat. Ann. § 6-2-315(a)(iv). The district court did not abuse its discretion in sentencing
Mr. Butler to incarceration instead of probation, nor did it commit plain error by
considering inappropriate factors at sentencing. Affirmed.




3
  We find no implication in the prosecutor’s statement that Mr. Butler should be punished for exercising
his right to a jury trial. Instead, the prosecutor is referencing the PSI which found the sex offender
treatment program offered by Behavioral Health Services was inappropriate for Mr. Butler as he refused
to take responsibility for his actions even after being convicted of the crime. The PSI stated, “The group
dimensions [of the sex offender treatment program] are such that a person convicted of a sex offense that
is unwilling to admit their behaviors, would disrupt the group dimension and are therefore not acceptable
to attend that group.”


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