                IN THE SUPREME COURT, STATE OF WYOMING

                                         2014 WY 89

                                                              APRIL TERM, A.D. 2014

                                                                      July 14, 2014

TROY EDWARD THOMPSON,

Appellant
(Defendant),

v.                                                   S-13-0251

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                   Appeal from the District Court of Sweetwater County
                           The Honorable Nena James, Judge

Representing Appellant:
      Michael Stulken, Green River, WY.

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

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

*Chief Justice at time of expedited conference.




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.
HILL, Justice.

[¶1] After an investigation during which police learned that teacher Troy Thompson
allegedly had sexual relations with three students at Rock Springs High School,
Thompson was charged with a total of fifteen counts – seven counts of sexual abuse of a
minor in the first degree, two counts of sexual abuse of a minor in the second degree, and
six counts of sexual abuse of a minor in the third degree. He eventually pleaded guilty to
three counts, and the State agreed to dismiss the remaining charges and cap its sentencing
recommendation. After a dramatic sentencing hearing where several students, including
two of the victims, testified on Thompson’s behalf, Thompson was sentenced. On the
first count the court sentenced Thompson to not less than 15 years and not more than 25
years. The court imposed two terms of not less than five and not more than eight-year
sentences on the remaining two counts with all three sentences to be served concurrent to
each other. This appeal followed.

                                        ISSUES

[¶2]   Thompson presents two issues on appeal:

             The district court abused its discretion by failing to give
             consideration to all circumstances presented in [Thompson’s]
             sentencing proceedings.

             [Thompson’s] procedural due process rights were violated
             when the district court continued the August 20, 2013
             proceedings.

                                        FACTS

[¶3] Troy Thompson was a band teacher at Rock Springs High School [RSHS] and
then at Western Wyoming Community College. In 2012 Rock Springs police learned
that Thompson, who was in his late 20’s, had sex with at least one of his students at
RSHS. An investigation ensued and uncovered that Thompson had engaged in sexual
conduct with three of his students. Specifically, during 2008-2009 Thompson engaged in
repeated acts of oral sex and vaginal sex with M.S. who was a high school student aged
14 and then 15 at the time of the offense. Then, in late 2009 or early 2010 Thompson
also engaged in sexual conduct, though no intercourse, with A.C., another RSHS student
who was then 16 years old. At the end of the school year in 2010 Thompson was fired
from his position as a high school band teacher because he was unable to follow school
protocol regarding student relationships.        That same summer Thompson began
communicating with C.L., one of his previous students at RSHS. During the fall of 2011
and the winter of 2012 Thompson and C.L. began having sexual intercourse regularly.



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C.L. was 17 at the inception of this relationship. Investigators also learned that C.L.
became pregnant with Thompson’s child.1

[¶4] As a result of the investigation’s findings, the State charged Thompson with seven
counts of sexual abuse of a minor in the first degree, two counts of sexual abuse of a
minor in the second degree, and six counts of sexual abuse of a minor in the third degree.

[¶5] A plea deal was reached wherein Thompson was to plead guilty to one count of
sexual abuse of a minor in the first degree for one victim and two counts of sexual abuse
of a minor in the third degree for the remaining victims. In exchange, the State would
dismiss the remaining charges and cap its sentencing recommendation at 15 to 25 years.

[¶6] Two of the three victims testified at a sentencing hearing on Thompson’s behalf.
Both admitted that the sexual activity was consensual and that they did not want
Thompson to go to prison. One of the victims, C.L., testified as to the strength of her
attachment to Thompson and went so far as to say that her only regret was speaking with
law enforcement officers, whom she identified as the sole source of her victimization.

[¶7] After hearing testimony, the district court recessed for personal reasons and
Thompson did not object. Court reconvened the following day. C.L.’s parents testified
about the damage done to their daughter, with C.L.’s mother specifically stating at the
end of her testimony that Thompson had “ruined [her] daughter.” C.L.’s father echoed
her mother’s sentiments, stating that she would be scarred the rest of her life and asked
the court to sentence Thompson with the maximum penalty available.

[¶8] Before sentencing, Thompson spoke on his own behalf. The district court then
went on the record and spoke about the case and the parties involved. The court
dismissed the victims’ claims that they were not victims, and stated that “… the law has
declared that this type of conduct is wrong …” The court observed, “I think the scariest
thing of all of this is that [the victims] do not think that they are victims …”

[¶9] After further reflection and lengthy explanation on the record, the court sentenced
Thompson to serve a 15 to 25-year sentence for one count of sexual abuse of a minor in
the first degree, to be served concurrently with two terms of five to eight years for the
two counts of sexual abuse of a minor in the third degree, each to be served concurrently
as well. This appeal followed.

                                        DISCUSSION

[¶10] Thompson first argues that the district court abused its discretion by failing to
consider mitigating evidence during sentencing. More specifically, Thompson complains

1
    C.L.’s parents adopted her child.



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that the judge did not adequately consider the victims’ statements, one victim’s mother’s
statement, and the statement from Thompson himself when it sentenced him. Relying upon
Wyoming’s “Victim Bill of Rights” (Wyo. Stat. Ann. § 1-40-201 et. seq. (LexisNexis 2013))
and Wyoming statutes governing victim impact statements (Wyo. Stat. Ann. § 7-21-101 et
seq. (LexisNexis 2013)), Thompson argues that the victims’ statements in this case must be
given special status and must be considered by a district court when determining the harm
done by an offender. The State responds that the district court properly exercised its
discretion and considered the evidence here as aggravating. Although the district court did
not view the evidence as Thompson would have liked, the State points out that does not
necessarily mean the evidence was not considered.

[¶11] We review sentencing decisions for an abuse of discretion. Magnus v. State, 2013
WY 13, ¶ 24, 293 P.3d 459, 467-468 (Wyo. 2013) (citation omitted).

              A sentence will not be disturbed because of sentencing
              procedures unless the defendant can show an abuse of
              discretion, procedural conduct prejudicial to him,
              circumstances which manifest inherent unfairness and
              injustice, or conduct which offends the public sense of fair
              play. An error warrants reversal only when it is prejudicial
              and it affects an appellant’s substantial rights. The party who
              is appealing bears the burden to establish that an error was
              prejudicial.

[¶12] “Our precedent illustrates that a sentencing court may consider a wide range of
factors about the defendant and the crime when imposing sentence.” Magnus, ¶ 25, 293
P.3d at 468. This wide range includes victim impact statements, PSI’s and other factors
relating to the defendant and his crimes in imposing an appropriate sentence within the
statutory range. The defendant’s character can also be considered in sentencing. Id.
When considering a defendant’s character, courts may consider a defendant’s cooperation
with the authorities and remorse for his actions when imposing sentence. Id. In the
imposition of a criminal sentence, a court should give consideration to all circumstances,
aggravating as well as mitigating. Cavanagh v. State, 505 P.2d 311, 312 (Wyo. 1973).
Although a district court must consider all of the factors presented during the proceedings, it
is not required to base its decision upon any one factor. Thomas v. State, 2009 WY 92, ¶ 12,
211 P.3d 509, 513 (Wyo. 2009).

[¶13] In this case, there is no error in sentencing. The district court heard testimony
from two of Thompson’s victims on his behalf. They did not consider themselves
victims, however. Thompson thus characterizes their testimony as mitigating and argues
that the district court did not properly consider it when sentencing him. However, the
court did address the victim’s statements during sentencing:




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              [T]he law has declared that this type of conduct is wrong and
              a person in their situation don’t get to decide whether they are
              victims. They don’t get to decide whether this man has a
              prison sentence or probation.

In fact, the court did consider the victims’ statements, but considered the statements as
aggravating rather than mitigating. Although Thompson disagrees, we conclude that the
record is clear.

[¶14] Thompson’s citation to the Wyoming statutes “Victim’s Bill of Rights” in support of
his argument is also misplaced. The “Victim’s Bill of Rights” requires that victims of
criminals be treated with respect and mandates that they be given an opportunity to
participate in criminal proceedings, including testifying during sentencing. Wyo. Stat. Ann.
§ 1-40-203 (LexisNexis 2013). That two of Thompson’s victims testified on his behalf does
not qualify their testimony as more credible, or warranting special status more so than his
victim that did not testify. We conclude the district court properly exercised its discretion in
sentencing Thompson.

[¶15] Thompson next argues that his due process rights were violated when the district
court recessed his sentencing hearing and continued it to the next day. Thompson argues that
the extra time allowed C.L.’s parents, specifically, to prepare and present “inappropriate”
victim impact statements.

[¶16] As the State suggests, because this issue was not raised in the district court, we
will consider this issue under the plain error doctrine. That doctrine provides:

              In order to establish plain error, the defendant must show that
              the record patently demonstrates the district court
              transgressed a clear and unequivocal rule of law and such
              violation adversely affected his substantial right.

Faubion v. State, 2010 WY 79, ¶ 21, 233 P.3d 926, 932 (Wyo. 2010).

[¶17] Under the standard of review we do not find Thompson’s argument persuasive.
Undeniably, the district court recessed proceedings for less than 24 hours to attend to a dental
emergency. Nevertheless Thompson cannot demonstrate a violation of a clear and
unequivocal rule of law under the imposed plain error standard.

[¶18] Although Thompson cites to cases regarding due process and regarding victim impact
statements, he cites to no pertinent authority or rule of law to direct this Court to conclude
that any error was committed by the district court. Thus, his argument fails under the plain
error standard of review. Certainly, there can be no due process violation when a district
court has relied upon accurate information and a defendant had an opportunity to respond to



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all information presented. Hubbard v. State, 2008 WY 12, ¶ 19, 175 P.3d 625, 629 (Wyo.
2008).

                                        CONCLUSION

[¶19] The district court is affirmed.




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