                IN THE SUPREME COURT, STATE OF WYOMING

                                             2013 WY 72

                                                                     APRIL TERM, A.D. 2013


                                                                             June 12, 2013


DANIEL RAY BOWLSBY,

Appellant
(Defendant),

v.                                                                  No. S-12-0078

THE STATE OF WYOMING,

Appellee
(Plaintiff).


                      Appeal from the District Court of Fremont County
                         The Honorable Norman E. Young, Judge

Representing Appellant:
      Diane M. Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; Eric
      M. Alden, Senior Assistant Appellate Counsel. Argument by Mr. Alden.

Representing Appellee:
      Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney
      General; D. Michael Pauling, Senior Assistant Attorney General; Joshua Eames,
      Student Intern. Argument by Mr. Eames.


Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.


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.
BURKE, Justice.

[¶1] Pursuant to a plea agreement, Daniel Ray Bowlsby pled guilty to one count of
sexual abuse of a minor in the first degree and one count of incest. Both charges were
based on the same incident involving his stepdaughter. In accordance with the plea
agreement, the State dismissed seven additional charges pending against Mr. Bowlsby.
On appeal, Mr. Bowlsby contends that incest is a lesser included offense of sexual abuse
of a minor in the first degree, and, under principles of double jeopardy, claims that it was
improper to convict him of both crimes. He asserts that his conviction and sentence for
the crime of incest should be vacated. We conclude that the crime of incest is a lesser
included offense of the crime of first degree sexual abuse of a minor as charged in this
case. Accordingly, we will reverse Mr. Bowlsby’s conviction and sentence for the crime
of incest and remand for further proceedings.

                                          ISSUE

[¶2] The dispositive issue presented by Mr. Bowlsby is whether his constitutional right
not to be placed in double jeopardy was violated when, based on the same act with the
same victim, he was convicted of both incest and sexual abuse of a minor in the first
degree.

                                         FACTS

[¶3] Mr. Bowlsby was charged with nine crimes relating to alleged sexual contacts
with his two stepdaughters. Prior to trial, Mr. Bowlsby and the State entered into a plea
agreement. Mr. Bowlsby agreed to plead guilty to one count of sexual abuse of a minor
in the first degree in violation of Wyo. Stat. Ann. § 6-2-314(a)(ii) (LexisNexis 2007), and
one count of incest in violation of Wyo. Stat. Ann. § 6-4-402(a)(iii). The prosecution
agreed to dismiss the remaining charges. The State also agreed that it would recommend
that the sentences on the two counts be concurrent, and that the sentence would not
exceed forty years. When he entered his guilty pleas, Mr. Bowlsby admitted that he had
engaged in sexual intercourse with his seventeen-year-old stepdaughter. The prosecution
made it clear that both charges stemmed from this single event, and were “based on the
same factual basis.”

[¶4] The district court accepted the guilty pleas and dismissed the other counts.
Mr. Bowlsby was sentenced to a term of thirty-five to forty years imprisonment on the
count of sexual abuse of a minor in the first degree, and to a term of thirteen to fifteen
years on the count of incest, with the two terms to be served concurrently. Mr. Bowlsby
subsequently filed a timely appeal.

                                      DISCUSSION

[¶5]   As a preliminary matter, we note that Mr. Bowlsby entered unconditional guilty

                                             1
pleas to both charges. A guilty plea waives all non-jurisdictional defenses. Sword v.
State, 746 P.2d 423, 425 (Wyo. 1987). Jurisdictional defenses are not waived, however,
and we have previously recognized that double jeopardy is a jurisdictional defense.
Davila v. State, 831 P.2d 204, 205-06 (Wyo. 1992).1 Mr. Bowlsby’s guilty plea did not
waive his double jeopardy claim, and does not preclude our review. See Haynes v. State,
2012 WY 151, ¶ 12, 288 P.3d 1225, 1228 (Wyo. 2012); Thomas v. Kerby, 44 F.3d 884,
888 (10th Cir. 1995).

[¶6] We also note that Mr. Bowlsby failed to present his double jeopardy claim to the
district court. We will therefore review for plain error.

                “Even when constitutional error is alleged, each criterion
                must be satisfied or a claim for review under the plain-error
                doctrine will fail.” Miller v. State, 904 P.2d 344, 348 (Wyo.
                1995). To establish plain error, the appellant must prove (1)
                the record clearly reflects the alleged error; (2) the existence
                of a clear and unequivocal rule of law; (3) a clear and obvious
                transgression of that rule of law; and (4) the error adversely
                affected a substantial right resulting in material prejudice to
                him. Sanchez v. State, 2006 WY 12, ¶ 19, 126 P.3d 897, 904
                (Wyo. 2006).

Snow v. State, 2009 WY 117, ¶ 13, 216 P.3d 505, 509 (Wyo. 2009).

[¶7] In this case, the record clearly reflects the alleged error. There is also no dispute
that an improper conviction and sentence satisfies the prejudice prong of the plain error
test.2 We must determine if there has been a violation of a clear and unequivocal rule of


1
  In Snow v. State, 2009 WY 117, ¶ 13 n.6, 216 P.3d 505, 509 n.6 (Wyo. 2009), we noted that “our
jurisprudence is not entirely consistent in considering the question of whether a double jeopardy
allegation is non-jurisdictional, and therefore can be waived, or is jurisdictional, and therefore cannot be
waived.” However, we determined that “Because the double jeopardy protections ‘involve the state’s
power to bring the defendant into court,’ we will in this case treat double jeopardy as jurisdictional, and
will address it even though there was no objection below.” Id. In the present case, the State does not
contend that Mr. Bowlsby waived his double jeopardy claim by entering a guilty plea. Because the issue
has not been raised, we will proceed as we did in Snow.
2
 As the United States Supreme Court explained in Ball v. United States, 470 U.S. 856, 864-65, 105 S.Ct.
1668, 1673, 84 L.Ed.2d 740 (1985):

                The second conviction, whose concomitant sentence is served
                concurrently, does not evaporate simply because of the concurrence of
                the sentence. The separate conviction, apart from the concurrent
                sentence, has potential adverse collateral consequences that may not be


                                                     2
law.

[¶8] The Fifth Amendment to the United States Constitution provides that no person
shall “be subject for the same offense to be twice put in jeopardy of life or limb.” The
parallel provision of the Wyoming Constitution, Article 1, Section 11, provides that no
person shall “be twice put in jeopardy for the same offense.” We have held that the state
and federal provisions are equivalent. James v. State, 2012 WY 35, ¶ 9, 271 P.3d 1016,
1018 (Wyo. 2012); Daniel v. State, 2008 WY 87, ¶ 8, 189 P.3d 859, 862 (Wyo. 2008).
“We have repeatedly stated that the double jeopardy clause provides three protections:
‘[I]t prohibits a second prosecution for the same offense after an acquittal; a second
prosecution for the same offense after a conviction; and multiple punishments for the
same offense.’” Owen v. State, 902 P.2d 190, 192 (Wyo. 1995), quoting Rivera v. State,
840 P.2d 933, 942 (Wyo. 1992). Because the double jeopardy clause prohibits multiple
punishments for the same offense, a person may not be punished for both a greater
offense and a lesser included offense based on the same incident. Daniel, ¶ 8, 189 P.3d at
862, citing Ohio v. Johnson, 467 U.S. 493, 501, 104 S.Ct. 2536, 2542, 81 L.Ed.2d 425
(1984) and Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977).

[¶9] The parties agree that, to determine whether incest is a lesser included offense of
sexual abuse of a minor in the first degree, the test to be applied is set forth in
Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932):
“The applicable rule is that where the same act or transaction constitutes a violation of
two distinct statutory provisions, the test to be applied to determine whether there are two
offenses or only one, is whether each provision requires proof of a fact which the other
does not.” We adopted this test years ago, State v. Keffer, 860 P.2d 1118, 1131 (Wyo.
1993), and have relied upon it many times since, most recently in Silva v. State, 2012 WY
37, ¶ 24 n.4, 271 P.3d 443, 451 n.4 (Wyo. 2012). Stating the test another way, a crime is
a lesser included offense “if its elements are a subset” of the elements of the greater
offense. Heywood v. State, 2007 WY 149, ¶ 10, 170 P.3d 1227, 1230 (Wyo. 2007); Dean
v. State, 2003 WY 128, ¶ 14, 77 P.3d 692, 697 (Wyo. 2003). According to the State,
“The same-elements test . . . is the ‘clear and unequivocal rule of law’ that Bowlsby must


               ignored. For example, the presence of two convictions on the record
               may delay the defendant’s eligibility for parole or result in an increased
               sentence under a recidivist statute for a future offense. Moreover, the
               second conviction may be used to impeach the defendant’s credibility
               and certainly carries the societal stigma accompanying any criminal
               conviction. See Benton v. Maryland, 395 U.S. 784, 790-791 (1969);
               Sibron v. New York, 392 U.S. 40, 54-56 (1968). Thus, the second
               conviction, even if it results in no greater sentence, is an impermissible
               punishment.

(Emphasis omitted.) See also Rutledge v. United States, 517 U.S. 292, 302, 116 S.Ct. 1241, 1248, 134
L.Ed.2d 419 (1996).


                                                   3
show was transgressed if he is to establish plain error.” We agree with that proposition.3

[¶10] The elements of a crime – the facts requiring proof under the Blockburger test –
are derived from the statute defining that crime. Mr. Bowlsby was convicted of incest in
violation of Wyo. Stat. Ann. § 6-4-402, which provides as follows:

               (a)    A person is guilty of incest if he knowingly commits
               sexual intrusion, as defined by W.S. 6-2-301(a)(vii), or sexual
               contact, as defined by W.S. 6-2-301(a)(vi), with an ancestor
               or descendant or a brother or sister of the whole or half blood.
               The relationships referred to herein include relationships of:

               ...

                       (iii)   Stepparent and stepchild.

(Emphasis added.) Mr. Bowlsby was also convicted of sexual abuse of a minor in the
first degree in violation of Wyo. Stat. Ann. § 6-2-314(a)(ii), which provides as follows:

               (a)    An actor commits the crime of sexual abuse of a
               minor in the first degree if: . . .

                       (ii) Being eighteen (18) years of age or older, the actor
                       inflicts sexual intrusion on a victim who is less than
                       eighteen (18) years of age, and the actor is the
                       victim’s legal guardian or an individual specified in
                       W.S. 6-4-402.

(Emphasis added.) The statute referred to in Wyo. Stat. Ann. § 6-2-314(a)(ii) is the same
incest statute that Mr. Bowlsby was convicted of violating.

[¶11] The specific issue we must address is whether “knowledge of the family
relationship” is an element of both of the crimes set forth above. Mr. Bowlsby contends
that incest is a lesser included offense of the crime of first degree sexual abuse of a minor
under Wyo. Stat. Ann. § 6-2-314(a)(ii). He claims that the crime of first degree sexual
abuse of a minor contains all of the elements that are necessary to the crime of incest,


3
  Mr. Bowlsby argues only that his incest conviction must be set aside under the “same elements” test of
Blockburger. He does not contend that his incest conviction merged into his conviction for first degree
sexual abuse of a minor because it arose from the same act under Najera v. State, 2009 WY 105, 214 P.3d
990 (Wyo. 2009), Bilderback v. State, 13 P.3d 249 (Wyo. 2000), Rouse v. State, 966 P.2d 967 (Wyo.
1998), and Owen, 902 P.2d 190. We therefore analyze his arguments only under the Blockburger
standard.


                                                   4
including the defendant’s knowledge of the familial relationship between the defendant
and the victim. Relying solely on 21 Am.Jur.2d Criminal Law § 117 (2013), which
provides that “Mens rea is generally an essential element of any criminal offense, and
exceptions to this rule normally occur only where the legislature clearly determines
otherwise,” he asserts that knowledge of the familial relationship “is required under both
statutes by the general requirement of scienter . . . implicit in all criminal laws under the
concept of mens rea unless clearly excluded by the legislature.”4 (Emphasis in original.)

[¶12] The State agrees that knowledge of the familial relationship is an element of
incest, citing several authorities for the proposition that “the courts of numerous other
states with similar incest statutes have recognized that knowledge of the familial
relationship is an essential element of the crime of incest.” It contends, however, that
knowledge of the family relationship is not an element of the crime of first degree sexual
abuse of a minor. With respect to this assertion, the State fails to provide any cogent
supporting analysis. Rather, it simply concludes that “To prove incest, the State would
have to prove the additional element that Bowlsby had actual knowledge of his familial
relationship with his victim, an element of scienter not contained in the sexual abuse
statute § 6-2-314(a)(ii).”5

[¶13] While we have not yet had occasion to determine whether Wyoming’s incest
statute requires knowledge of the familial relationship with the victim, as noted by the
State, the issue has been addressed by legal commentators and courts in a number of
jurisdictions. Uniformly, they conclude that knowledge of the relationship is an element


4
  Because the issue is raised in the context of a double jeopardy violation, Mr. Bowlsby’s primary concern
is that knowledge of the family relationship be treated similarly in analyzing both statutes. Initially, he
contended that knowledge of the family relationship was not an element of either crime. He raised the
scienter issue in response to the State’s contention that knowledge of the family relationship was an
element of incest but not sexual abuse of a minor in the first degree.
5
 The State’s position is at odds with the language of Wyoming Criminal Pattern Jury Instruction 44.02A,
which sets forth the elements of incest. According to that instruction, the elements of incest are:

                1. On or about the _____ day of __________, 20___
                2. In __________ County, Wyoming
                3. The Defendant, __________
                4. Committed [sexual intrusion] [sexual contact]
                5. With [an ancestor] [a descendant] [a {brother} {sister} of the whole
                or half blood].

Because this issue was presented in this case as a double jeopardy violation, the State focused on
establishing differences in the elements of both crimes. Had the matter been presented as a challenge to
the sufficiency of an elements instruction in accord with the pattern instruction, the State may have taken
a different approach. See, e.g., State v. Hargrove, 108 N.M. 233, 235, 771 P.2d 166, 168 (1989),
discussed infra, ¶ 14.


                                                    5
of the crime of incest. See, e.g., Monroe County Dep’t of Human Servs. v. Kelli B. (In re
Zachary B.), 2004 WI 48, ¶ 4, 271 Wis.2d 51, 58, 678 N.W.2d 831, 833 (2004);
Standridge v. State, 357 Ark. 105, 120, 161 S.W.3d 815, 823 (2004); State v. Vann, 976
S.W.2d 93, 106 (Tenn. 1998); State v. Calle, 125 Wn.2d 769, 778, 888 P.2d 155, 159
(1995); Carmichael v. State, 255 Kan. 10, 19, 872 P.2d 240, 246 (1994); State v.
Hargrove, 108 N.M. 233, 235, 771 P.2d 166, 168 (1989); People v. Parker, 123 Ill.2d
204, 210, 526 N.E.2d 135, 138 (1988); State v. Forman, 466 So.2d 747, 748 (La. App.
1985); Robinson v. United States, 452 A.2d 354, 359 (D.C. 1982); State v. Vincent, 278
N.C. 63, 64, 178 S.E.2d 608, 609 (1971); State v. Daniels, 169 Ohio St. 87, 98, 157
N.E.2d 736, 744 (1959); State v. Winslow, 30 Utah 403, 408, 85 P. 433, 435 (1906); Rea
v. Harrington, 58 Vt. 181, 185, 2 A. 475, 478 (1886); 2 Charles E. Torcia, Wharton’s
Criminal Law § 239 (15th ed. 2012) (“In order to be guilty of incest, the accused must
know that the person . . . with whom he is having sexual intercourse is related to him
within a prohibited degree of consanguinity or affinity.”); 41 Am.Jur.2d Incest § 11
(2013) (“Elements of the crime of incest by sexual intercourse generally include sexual
conduct between two persons within the prohibited degree of consanguinit[y], and the
defendant’s knowledge of their relationship.”); 42 C.J.S. Incest § 9 (2013) (“Typically,
knowledge of the relationship on the part of [the] accused is an essential element of the
offense [of incest].”).

[¶14] We note that, in the present case, there is no dispute that Mr. Bowlsby knew that
the victim was his stepdaughter. However, in interpreting the statutes in question, we
must also take account of the potential scenario in which a defendant engages in
“unwitting” or “accidental” incest, where the defendant does not have knowledge of the
familial relationship. Mr. Bowlsby offers the example of an anonymous sperm donor
who may have no reason to know that his sexual contact is with his progeny. The
possibility also arises in cases of adoption, as in the Athenian tragedy, Oedipus Rex.6 The
problem of accidental incest is not merely fictional or theoretical. It was raised in
Hargrove, 108 N.M. at 236, 771 P.2d at 169:

                At oral argument, a question also was raised concerning
                whether prohibited relationships under Section 30-10-3
                include a child fathered by someone other than the defendant
                during defendant’s marriage to the mother. The relevance of


6
  In the version of the story told by Sophocles, Oedipus, the biological son of King Laius and Queen
Jocasta of Thebes, is discarded on a mountain top to avoid the prophecy that he will murder his father and
marry his mother. Oedipus is eventually rescued by a shepherd and adopted by King Polybus and Queen
Merope of Corinth. After learning of the prophecy, Oedipus journeys from Corinth in order to avoid
causing harm to Polybus and Merope. On his way to Thebes, Oedipus slays Laius, who he does not
realize is his true father. Oedipus subsequently marries Laius’ widow, Jocasta, Oedipus’ biological
mother. Sophocles, The Three Theban Plays: Antigone, Oedipus the King, Oedipus at Colonus, (Robert
Fagles, Bernard MacGregor Knox trans., Viking Penguin, 1984).


                                                    6
              this question stemmed from defendant’s testimony that, at the
              time of the offense, he believed Rebecca to have been
              fathered by another man during the time the defendant was
              married to Rebecca’s mother. If the defendant’s knowledge
              that he was the biological father of Rebecca was factually in
              issue, then error in failure to instruct on the essential element
              of knowledge would be jurisdictional.

The statute at issue in that case, N.M. Stat. Ann. § 30-10-3, provided that “Incest consists
of knowingly intermarrying or having sexual intercourse with persons within the
following degrees of consanguinity: parents and children including grandparents and
grandchildren of every degree, brothers and sisters of the half as well as of the whole
blood, uncles and nieces, aunts and nephews.” The defendant contended that he did not
know that he was the father of the victim. On appeal, he challenged the adequacy of the
elements instruction. He contended that the instruction failed to advise the jury that
knowledge of the relationship was an element of the crime of incest. The New Mexico
Supreme Court agreed and reversed the conviction. In determining that knowledge of the
familial relationship was an element of the crime of incest, the court reasoned as follows:

                     The State concedes that failure to instruct on an
              essential element may be raised for the first time on appeal,
              see State v. Bell, 90 N.M. 134, 560 P.2d 925 (1977), but
              maintains that the jury instructions, read as a whole, properly
              included the essential elements of the crime of incest. The
              State argues that the jury was instructed on the definition of
              “intentionally” and asserts that “intentionally” is an adequate
              substitute for “knowingly”. We do not agree that the
              instruction, which informs the jury of the necessity to find
              general criminal intent in addition to the other elements of the
              charged offense, SCRA 1986, 14-141, was sufficient to
              instruct the jury that knowledge of the prohibited blood
              relationship is an essential element of incest. As stated in
              Hittson, “the free act of the one being tried, with knowledge of
              the relationship” is required to convict one of incest. 57 N.M.
              at 102-03, 254 P.2d at 1065 (emphasis added). Knowledge
              and intent are separate, not synonymous, elements.

              ...

              The issue, however, was whether the defendant knew
              Rebecca was his biological daughter when the acts of sexual
              intercourse charged in Counts II and VIII were committed.
              The defendant’s testimony that at one time he believed
              Rebecca to be his “adopted” daughter demonstrates that the

                                             7
               defendant did not concede that at the time he had intercourse
               with Rebecca he knew she was his biological daughter.
               Accordingly, the failure to instruct the jury that, as an
               essential element of incest in Counts II and VIII, it had to find
               beyond a reasonable doubt that the defendant had knowledge
               of the prohibited blood relationship requires that the
               convictions on those counts be reversed.

Hargrove, 771 P.2d at 169, 170. In its structure and its use of the term “knowingly,” the
New Mexico incest statute cannot be distinguished from Wyoming’s incest statute.

[¶15] We agree with both parties that knowledge of the familial relationship is an
element of the crime of incest. Initially, however, we note that whether knowledge of the
family relationship is an element of the crime of incest is not immediately apparent from
the language of Wyo. Stat. Ann. § 6-4-402(a). The statute does not explicitly state that
knowledge of the family relationship is required for conviction.7 The incest statute
contains the word “knowingly,” but the use of that word does not lead directly to the
conclusion that knowledge of the family relationship is an element of the crime. From a
grammatical perspective, the term modifies the act (“knowingly commits sexual
intrusion”), not the relationship (“with an ancestor or descendant … or stepparent and
stepchild”). See Management Council of the Wyoming Legislature v. Geringer, 953 P.2d
839, 844 (Wyo. 1998), citing John M. Kierzek & Walker Gibson, The MacMillian
Handbook of English, 414 (6th ed., Revised by, Robert F. Willson, Jr. 1977); see also
Evans v. Farmers Ins. Exch., 2001 WY 110, ¶ 11, 34 P.3d 284, 287 (Wyo. 2001).
However, following United States Supreme Court precedent, we find that the
interpretation suggested by a grammatical reading of the statute must yield to the
presumption, deeply embedded in our criminal law, in favor of “broadly applicable
scienter requirements, even where the statute by its terms does not contain them.” United
States v. X-Citement Video, 513 U.S. 64, 70, 115 S.Ct. 464, 468, 130 L.Ed.2d 372 (1994).
This principle extends equally to statutes, such as the statute defining first degree sexual
abuse of a minor, where no mental state is specified. Ultimately, our analysis rests on the
principle that a statute should not be interpreted to criminalize otherwise innocent
conduct absent a clear indication of the legislature’s intent to impose criminal liability
without regard to the defendant’s knowledge of the necessary elements of the crime. As
discussed below, we find several factors indicating that the legislature did not intend to
impose criminal liability for incest or first degree sexual abuse of a minor absent the
defendant’s knowledge of the necessary familial relationship. Accordingly, we agree
with Mr. Bowlsby and conclude that such knowledge is an element of both crimes.


7
 An example of statutory language containing such a requirement is contained in Wyo. Stat. Ann. § 6-4-
401(a), Wyoming’s bigamy statute, which provides that “A person commits bigamy if, being married and
knowing that his spouse is alive, he marries again.”


                                                  8
[¶16] Faced with the task of interpreting similar statutes that fail to identify a scienter
requirement with respect to the elements of a crime, the United States Supreme Court has
relied on the presumption that some form of scienter is to be implied in a criminal statute
even if not expressed. The Court explained and applied this presumption in X-Citement
Video. In that case, the Court was called upon to determine whether 18 U.S.C. § 2252,
prohibiting the distribution of child pornography, required a defendant to have knowledge
of the fact that a “visual depiction” involved the use of a minor engaging in sexually
explicit conduct. The statute at that time provided:

             (a) Any person who --

                    (1) knowingly transports or ships in interstate or
                    foreign commerce by any means including by
                    computer or mails, any visual depiction, if --

                           (A) the producing of such visual depiction
                           involves the use of a minor engaging in
                           sexually explicit conduct; and

                           (B) such visual depiction is of such conduct;

                    (2) knowingly receives, or distributes, any visual
                    depiction that has been mailed, or has been shipped or
                    transported in interstate or foreign commerce, or which
                    contains materials which have been mailed or so
                    shipped or transported, by any means including by
                    computer, or knowingly reproduces any visual
                    depiction for distribution in interstate or foreign
                    commerce or through the mails, if --

                           (A) the producing of such visual depiction
                           involves the use of a minor engaging in
                           sexually explicit conduct; and

                           (B) such visual depiction is of such conduct;
                    ....

             shall be punished as provided in subsection (b) of this section.

The specific issue addressed by the Court was whether the term “knowingly” in
subsections (1) and (2) modified the phrase “the use of a minor” in subsections (1)(A)
and (2)(A). Despite the Court’s conclusion that the most natural grammatical reading
suggested that the term “knowingly” modified only the surrounding verbs, and not “the

                                            9
elements of the minority of the performers, or the sexually explicit nature of the
material,” the Court held that the “knowingly” scienter requirement applied to the
elements in subsection (1)(A) and (2)(A) as well, in part because of the presumption “that
some form of scienter is to be implied in a criminal statute even if not expressed.” X-
Citement Video, 513 U.S. at 68-69, 115 S.Ct. at 467.

[¶17] The Court succinctly summarized the precedent supporting this presumption:

                     Our reluctance to simply follow the most grammatical
             reading of the statute is heightened by our cases interpreting
             criminal statutes to include broadly applicable scienter
             requirements, even where the statute by its terms does not
             contain them. The landmark opinion in Morissette v. United
             States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952),
             discussed the common-law history of mens rea as applied to
             the elements of the federal embezzlement statute. That statute
             read: “Whoever embezzles, steals, purloins, or knowingly
             converts to his use or the use of another, or without authority,
             sells, conveys or disposes of any record, voucher, money, or
             thing of value of the United States . . . [s]hall be fined.” 18
             U.S.C. § 641, cited in Morissette, 342 U.S. at 248, n.2, 72
             S.Ct. at 242, n.2. Perhaps even more obviously than in the
             statute presently before us, the word “knowingly” in its
             isolated position suggested that it only attached to the verb
             “converts,” and required only that the defendant intentionally
             assume dominion over the property. But the Court used the
             background presumption of evil intent to conclude that the
             term “knowingly” also required that the defendant have
             knowledge of the facts that made the taking a conversion –
             i.e., that the property belonged to the United States. Id., at
             271, 72 S.Ct. at 254. See also United States v. United States
             Gypsum Co., 438 U.S. 422, 438, 98 S.Ct. 2864, 57 L.Ed.2d
             854 (1978) (“[F]ar more than the simple omission of the
             appropriate phrase from the statutory definition is necessary
             to justify dispensing with an intent requirement”).

                     Liparota v. United States, 471 U.S. 419, 105 S.Ct.
             2084, 85 L.Ed.2d 434 (1985), posed a challenge to a federal
             statute prohibiting certain actions with respect to food stamps.
             The statute’s use of “knowingly” could be read only to
             modify “uses, transfers, acquires, alters, or possesses” or it
             could be read also to modify “in any manner not authorized
             b y [the statute].” Noting that neither interpretation posed
             constitutional problems, id., at 424, n.6, 105 S.Ct. at 2087,

                                           10
             n.6, the Court held the scienter requirement applied to both
             elements by invoking the background principle set forth in
             Morissette. In addition, the Court was concerned with the
             broader reading which would “criminalize a broad range of
             apparently innocent conduct.” 471 U.S. at 426, 105 S.Ct. at
             2088. Imposing criminal liability on an unwitting food stamp
             recipient who purchased groceries at a store that inflated its
             prices to such purchasers struck the Court as beyond the
             intended reach of the statute.

                     The same analysis drove the recent conclusion in
             Staples v. United States, 511 U.S. 600, 114 S.Ct. 1793, 128
             L.Ed.2d 608 (1994), that to be criminally liable a defendant
             must know that his weapon possessed automatic firing
             capability so as to make it a machinegun as defined by the
             National Firearms Act. Congress had not expressly imposed
             any mens rea requirement in the provision criminalizing the
             possession of a firearm in the absence of proper registration.
             26 U.S.C. § 5861(d). The Court first rejected the argument
             that the statute described a public welfare offense,
             traditionally excepted from the background principle favoring
             scienter. Morissette, supra, at 255, 72 S.Ct. at 246. The Court
             then expressed concern with a statutory reading that would
             criminalize behavior that a defendant believed fell within “a
             long tradition of widespread lawful gun ownership by private
             individuals.” Staples, 511 U.S. at 610, 114 S.Ct. at 1799. The
             Court also emphasized the harsh penalties attaching to
             violations of the statute as a “significant consideration in
             determining whether the statute should be construed as
             dispensing with mens rea.” Id., at 616, 114 S.Ct. at 1802.

X-Citement Video, 513 U.S. at 70-71, 115 S.Ct. at 468. Under this authority, the Court
held that “Morissette, reinforced by Staples, instructs that the presumption in favor of a
scienter requirement should apply to each of the statutory elements that criminalize
otherwise innocent conduct.” Id., 513 U.S. at 72, 115 S.Ct. at 469. Consistent with the
analysis in Staples, the Court noted that the child pornography statute at issue did not
describe a “public welfare offense,” but rather was “more akin to the common-law
offenses against the ‘state, the person, property, or public morals,’ Morissette, supra, at
255, that presume a scienter requirement in the absence of express contrary intent.” Id.,
513 U.S. at 71-72, 115 S.Ct. at 468-69. Further, the court noted that “Staples’ concern
with harsh penalties looms equally large respecting § 2252: Violations are punishable by
up to 10 years in prison as well as substantial fines and forfeiture.” Id., 513 U.S. at 72,
115 S.Ct. at 469. Both of these factors led the Court to conclude that “the term
‘knowingly’ in § 2252 extends both to the sexually explicit nature of the material and to

                                            11
the age of the performers.” Id., 513 U.S. at 78, 115 S.Ct. at 472.

[¶18] Similarly, our precedent has also interpreted Wyoming criminal statutes to require
the defendant’s knowledge of an attendant circumstance, even when that requirement is
not explicitly applied to each of the elements of a particular statute. For example, Wyo.
Stat. Ann. § 6-5-204(a) defines the crime of interference with a peace officer:

              (a)    A person commits a misdemeanor punishable by
              imprisonment for not more than one (1) year, a fine of not
              more than one thousand dollars ($1,000.00), or both, if he
              knowingly obstructs, impedes or interferes with or resists
              arrest by a peace officer while engaged in the lawful
              performance of his official duties.

In considering this statute, we have indicated that a defendant must have knowledge that
the person being obstructed or injured is a peace officer in order to be convicted of the
crime of interference with a peace officer. Iseli v. State, 2007 WY 102, ¶ 16, 160 P.3d
1133, 1138 (Wyo. 2007) (The defendant “could argue that he was not guilty because he
did not know that Investigator Davis was a peace officer.”). Additionally, we have also
found a knowledge requirement in crimes where the statute did not contain the word
“knowingly.” In Gallegos v. State, 961 P.2d 981, 982 (Wyo. 1998), we reviewed a
conviction under Wyo. Stat. Ann. § 35-7-1031 (Cum. Supp. 1995), which read, “[I]t is
unlawful for any person to manufacture, deliver, or possess with intent to manufacture or
deliver, a controlled substance.” Although the statute did not include the word
“knowingly,” we confirmed that “knowledge that one is dealing with a controlled
substance” is “required to constitute the completed crime.” Id. at 983, citing Seymour v.
State, 949 P.2d 881, 883-84 (Wyo. 1997); Dorador v. State, 573 P.2d 839, 843 (Wyo.
1978). We stated in Dorador, 573 P.2d at 843, that “Knowledge or scienter is essential to
a general intent crime. An accused must, of course, know that he is delivering a
controlled substance.”

[¶19] While our precedent demonstrates a willingness to apply scienter requirements to
the elements of a crime, even when not expressed in the language of a particular statute,
we recognize that there are instances in which the legislature intends to impose criminal
liability in absence of a finding of fault. The historical origins of these “strict liability”
crimes are explained in 1 Wayne R. LaFave, Substantive Criminal Law § 5.5, at 381 (2d
ed. 2003):

              For several centuries (at least since 1600) the different
              common law crimes have been so defined as to require, for
              guilt, that the defendant’s acts or omissions be accompanied
              by one or more of the various types of fault (intention,
              knowledge, recklessness or – more rarely – negligence); a
              person is not guilty of a common law crime without one of

                                             12
                  these kinds of fault. But legislatures, especially in the 20th
                  and 21st centuries, have often undertaken to impose criminal
                  liability for conduct unaccompanied by fault. A statute may
                  simply provide that whoever does (or omits to do) so-and-so,
                  or whoever brings about such-and such a result, is guilty of a
                  crime, setting forth the punishment. Usually, but not always,
                  the statutory crime-without-fault carries a relatively light
                  penalty – generally of the misdemeanor variety. . . .

(Footnote omitted.) Professor LaFave suggests that “[a] number of factors may be
considered of importance in deciding whether the legislature meant to impose liability
without fault or, on the other hand, really meant to require fault, though it failed to spell it
out clearly.”8 Id., § 5.5(a), at 383. We will proceed to discuss those factors we find most


8
    LaFave suggests the following seven factors:

                  (1) The legislative history of the statute or its title or context may throw
                  some light on the matter. (2) The legislature may have in some other
                  statute provided guidance as to how a court is to determine whether strict
                  liability was intended. (3) The severity of the punishment provided for
                  the crime is of importance. Other things being equal, the greater the
                  possible punishment, the more likely some fault is required; and,
                  conversely, the lighter the possible punishment, the more likely the
                  legislature meant to impose liability without fault. (4) The seriousness of
                  harm to the public which may be expected to follow from the forbidden
                  conduct is another factor. Other things being equal, the more serious the
                  consequences to the public, the more likely the legislature meant to
                  impose liability without regard to fault, and vice versa. (5) The
                  defendant’s opportunity to ascertain the true facts is yet another factor
                  which may be important in determining whether the legislature really
                  meant to impose liability on one who was without fault because he
                  lacked knowledge of these facts. The harder to find out the truth, the
                  more likely the legislature meant to require fault in not knowing; the
                  easier to ascertain the truth, the more likely failure to know is no excuse.
                  (6) The difficulty prosecuting officials would have in proving a mental
                  state for this type of crime. The greater the difficulty, the more likely it is
                  that the legislature intended to relieve the prosecution of that burden so
                  that the law could be effectively enforced. (7) The number of
                  prosecutions to be expected is another factor of some importance. The
                  fewer the expected prosecutions, the more likely the legislature meant to
                  require the prosecuting officials to go into the issue of fault; the greater
                  the number of prosecutions, the more likely the legislature meant to
                  impose liability without regard to fault. All the above factors have a
                  bearing on the question of the interpretation of the empty statute, but no
                  single factor can be said to be controlling. Thus some statutes have been
                  held to impose liability without fault although the possible punishment
                  was quite severe, generally because one or more of the other factors


                                                       13
helpful in interpreting the statutes at issue in this case. In doing so, we recognize that,
unlike the statute defining incest, the statute defining first degree sexual abuse of a minor,
like the statutes at issue in Gallegos and Staples, does not contain the word “knowingly,”
or any other scienter requirement, such as purposely or recklessly. Nonetheless, as
indicated above, we note that neither statute can be literally interpreted to require the
defendant’s knowledge of the necessary familial relationship. Accordingly, the question
we must answer with respect to each statute is the same; that is, whether, in light of the
following considerations, the defendant must know of the necessary familial relationship
despite the legislature’s failure to expressly identify that requirement.

[¶20] First, we find the most significant factor in interpreting the statutes at issue is the
severity of the punishment provided for the crimes. As stated by LaFave, “Other things
being equal, the greater the possible punishment, the more likely some fault is required.”
Id., § 5.5(a), at 384. As indicated above, this principle was also expressed in Staples, 511
U.S. at 616-17, 114 S.Ct. at 1802-03:

                Historically, the penalty imposed under a statute has been a
                significant consideration in determining whether the statute
                should be construed as dispensing with mens rea. Certainly,
                the cases that first defined the concept of the public welfare
                offense almost uniformly involved statutes that provided for
                only light penalties such as fines or short jail sentences, not
                imprisonment in the state penitentiary.

                ...

                       As commentators have pointed out, the small penalties
                attached to such offenses logically complemented the absence
                of a mens rea requirement: In a system that generally requires
                a “vicious will” to establish a crime, 4 W. Blackstone,
                Commentaries * 21, imposing severe punishments for
                offenses that require no mens rea would seem incongruous.

The crimes of incest and first degree sexual abuse of a minor carry severe penalties.
Incest is a felony punishable by up to fifteen years in prison and a fine of ten thousand
dollars. Sexual abuse of a minor in the first degree is a felony with a minimum sentence
of twenty-five years in prison, and a maximum penalty of fifty years. Because neither of



                pointed toward strict liability.

1 Substantive Criminal Law § 5.5(a), at 383-86 (footnotes omitted).



                                                   14
these potential punishments constitutes “a relatively light penalty,” the discussions in
Staples and LaFave suggest that they should not be considered crimes-without-fault, but
rather should include an element of fault or scienter with respect to the necessary familial
relationship.

[¶21] A similar consideration relating to the severity of the penalties prescribed for
incest and first degree sexual abuse of a minor leads us to conclude that the legislature
considered the familial relationship a significant element of these crimes. Absent the
family relationship element in the crime of incest, an actor’s sexual relationship with
another willing adult participant is not a felony punishable by up to fifteen years in
prison, but rather constitutes a sexual relationship between consenting adults, free from
threat of criminal punishment. Likewise, in the absence of a familial relationship,
Mr. Bowlsby’s conduct in the present case would not have violated Wyoming’s sexual
abuse statutes, none of which make it a crime for a thirty-five-year-old to have a
consenting sexual relationship with a seventeen-year-old.9 Accordingly, under both the
incest and the first degree sexual abuse statutes, the existence of a family relationship
establishes the difference between innocent conduct and a crime punishable by up to fifty
years in prison. As a result, an interpretation of these statutes which dispenses with the
requirement that the defendant have knowledge of the family relationship has the
potential to “criminalize a broad range of apparently innocent conduct.” Liparota, 471
U.S. at 426, 105 S.Ct. at 2088.

[¶22] Second, LaFave notes that “The legislature may have in some other statute
provided guidance as to how a court is to determine whether strict liability was intended.”
LaFave, § 5.5(a), at 383. While a number of modern criminal codes have provided that a
statute should not be interpreted to create a strict liability offense unless it “clearly
indicates” or “plainly appears” that such a result was intended by the legislature, courts
have also found guidance from statutes setting forth an “affirmative defense” with respect
to a particular element of the crime. Id. at 383-84 n.11; see, e.g., State v. Buttrey, 293
Ore. 575, 651 P.2d 1075 (1982). Our legislature has enacted a number of statutes


9
    Prior to its repeal in 2007, Wyo. Stat. Ann. § 14-3-105 (LexisNexis 2005) provided:

                  (a) . . . [A]ny person knowingly taking immodest, immoral or indecent
                  liberties with any child or knowingly causing or encouraging any child to
                  cause or encourage another child to commit with him any immoral or
                  indecent act is guilty of a felony. Except as provided by subsection (b)
                  of this section, a person convicted under this section shall be fined not
                  less than one hundred dollars ($100.00) nor more than one thousand
                  dollars ($1,000.00) or imprisoned in the penitentiary not more than ten
                  (10) years, or both. . . .

                  (c) As used in this section, “child” means a person under the age of
                  eighteen (18) years.


                                                     15
establishing such affirmative defenses. For example, Wyo. Stat. Ann. § 6-2-308 provides
that, under certain circumstances, “it is an affirmative defense” to the charge of sexual
abuse of a minor in the first degree if the defendant “reasonably believed that the victim
was sixteen (16) years of age or older”:

              (a) Except as provided by subsection (b) of this section, if
              criminality of conduct in this article depends on a victim
              being under sixteen (16) years of age, it is an affirmative
              defense that the actor reasonably believed that the victim was
              sixteen (16) years of age or older.

              (b) If criminality of conduct in this article depends upon a
              victim being under twelve (12) years or under fourteen (14)
              years, it is no defense that the actor did not know the victim’s
              age, or that he reasonably believed that the victim was twelve
              (12) years or fourteen (14) years of age or older, as
              applicable.

Because this is an affirmative defense, the defendant has the burden of producing
evidence to support it, and the prosecution then generally has the “burden to negate this
defense beyond a reasonable doubt.” Olsen v. State, 2003 WY 46, ¶ 144 n.12, 67 P.3d
536, 589 n.12 (Wyo. 2003); Duckett v. State, 966 P.2d 941, 948 (Wyo. 1998); Brooks v.
State, 706 P.2d 664, 667 (Wyo. 1985). However, if the defendant does not produce
evidence to support this affirmative defense, the prosecution is not required to prove the
defendant’s knowledge of the victim’s age. If defendant’s knowledge of the victim’s age
does not have to be proven in every case, it is not an element of the crime.

[¶23] There is no statute establishing lack of knowledge of the victim’s familial
relationship as an affirmative defense to either incest or first degree sexual abuse of a
minor. The legislature clearly knew how to specify that reasonable belief as to a victim’s
age was an affirmative defense. The fact that it did not provide similar treatment to
knowledge of a victim’s familial relationship indicates that lack of knowledge of the
family relationship should not be interpreted as an affirmative defense. See Royal v.
Walsh, 2004 WY 96, ¶ 15, 96 P.3d 1, 5 (Wyo. 2004). If lack of knowledge is not a
defense, then it is more likely that the legislature intended that such knowledge was an
element of the crimes of incest and sexual abuse of a minor in the first degree.

[¶24] The third and final factor relevant to our analysis is the difficulty that the
prosecution would have in proving the mental state with respect to the crime: “The
greater the difficulty, the more likely it is that the legislature intended to relieve the
prosecution of that burden so that the law could be effectively enforced.” LaFave,
§ 5.5(a), at 386. We think that, as in Mr. Bowlsby’s case, it should not be difficult for the
prosecution to prove knowledge of familial relationship in the vast majority of
prosecutions for incest and sexual abuse of a minor in the first degree. It seems unlikely

                                             16
that the legislature intended to relieve the prosecution of this relatively uncomplicated
burden in light of the severe penalty associated with each of these crimes.

[¶25] In summary, our analysis has started with the proposition that the presumption in
favor of a scienter requirement should apply to each of the statutory elements that
criminalize otherwise innocent conduct unless the legislature has clearly indicated its
intent to abandon a mental element and impose strict liability. Our review of the relevant
statutes has found no such intent. Rather, we have found several significant factors that
indicate that the legislature did not intend to impose strict liability. First, we must note
that the crimes of incest and first degree sexual abuse of a minor do not fall within the
category of “public welfare offenses” that are traditionally excepted from the
presumption in favor of a scienter requirement. Further, the severity of the potential
punishments for incest and first degree sexual abuse of a minor, the fact that the
legislature has chosen not to establish lack of knowledge of the familial relationship as an
affirmative defense to either crime, and the relative ease of proving this knowledge in the
majority of cases involving these crimes suggest that the legislature did not intend to
impose criminal liability without regard to whether the defendant knew that the victim
was related to him. Ultimately, we conclude that the significance of the familial
relationship to the crimes of incest and first degree sexual abuse of a minor cannot be
overstated, and that the statutes cannot be reasonably interpreted to dispense with the
requirement that the defendant have knowledge of that relationship. Absent a clear
indication from the legislature, we cannot sustain an interpretation of the incest and
sexual abuse statutes that would criminalize, under threat of severe penalty, otherwise
innocent conduct.

[¶26] As a result, we hold that the elements of sexual abuse of a minor in the first
degree, as defined by Wyo. Stat. Ann. § 6-2-314(a)(ii), are as follows: the defendant,
(1) being eighteen years of age or older; (2) inflicts sexual intrusion; (3) on a victim who
is less than eighteen years of age; (4) the defendant is the victim’s legal guardian or an
individual specified in Wyo. Stat. Ann. § 6-4-402, and (5) the defendant knows of his
familial relationship with the victim. In comparison, the elements of the crime of incest
are that the defendant: (1) commits sexual intrusion or sexual contact; (2) with a person
of the specified familial relationship; (3) and knows of his familial relationship with the
victim. From these two lists, it is apparent that the elements of incest are a subset of the
elements of sexual abuse of a minor in the first degree.10 Stated another way, Wyoming’s
incest statute does not require proof of any fact which is not also necessary to a
conviction for first degree sexual abuse of a minor under Wyo. Stat. Ann. § 6-2-


10
   Wyoming Criminal Pattern Jury Instructions 44.02A and 23.14C, which purport to set forth the
elements of incest and first degree sexual abuse of a minor, respectively, do not contain any mental
element with respect to those crimes. Under our decision in this case, the pattern jury instructions are
inadequate in their failure to specify that the defendant must have knowledge of the necessary familial
relationship.


                                                  17
314(a)(ii). Incest is a lesser included offense of sexual abuse of a minor in the first
degree and constitutes the “same offense” under a double jeopardy analysis.
Consequently, the issuance of multiple punishments for the same offense violated
Mr. Bowlsby’s constitutional double jeopardy protections.

[¶27] Having concluded that the crime of incest is a lesser included offense of first
degree sexual abuse of a minor as charged in this case, we must determine an appropriate
remedy. Because Mr. Bowlsby’s conviction and sentence for incest violates his
constitutional double jeopardy protections, that conviction and sentence must be set
aside. That is the only relief sought by Mr. Bowlsby. The problem, of course, is that this
matter comes to us following guilty pleas pursuant to a plea bargain. The plea bargain
contemplated conviction and sentences on two counts. As a result of our decision,
Mr. Bowlsby will only have one conviction and sentence. In return for Mr. Bowlsby’s
plea, the State dismissed seven other felony counts. Mr. Bowlsby has received the
benefit of the bargain, but it appears that the State has not. We have previously
recognized that “A plea agreement is a contract between the State and a defendant. As
such, both parties must adhere to the terms of the contract, and each party is entitled to
the benefit of the bargain entered.” Ford v. State, 2003 WY 65, ¶ 10, 69 P.3d 407, 410
(Wyo. 2003).

[¶28] Although we reverse Mr. Bowlsby’s conviction and sentence for incest, we
remand for further proceedings relating to the plea agreement and the conviction for first
degree sexual abuse of a minor. On remand, the State shall advise the district court
whether it wishes to void the plea agreement in light of this decision. If the State wishes
to do so, the district court shall hold further proceedings to determine if grounds exist to
void the agreement. If the State does not wish to void the plea agreement, the sentence
on first degree sexual abuse of a minor shall remain in full force and effect.

[¶29] We reverse Mr. Bowlsby’s conviction and sentence for the crime of incest and
remand for further proceedings in accordance with this opinion.




                                            18
