451 P.3d 731
Wyo.2019Background
- In Jan–Feb 2017 while incarcerated, Lewis Dugan mailed ten letters to a woman he had not contacted in over 20 years; the letters contained repeated, explicit sexual language and requests.
- The victim reported feeling “sick,” “nervous,” and “scared”; investigators and prison staff told Dugan to stop, but he continued sending letters.
- Dugan was charged with felony stalking under Wyo. Stat. § 6-2-506(b) and (e)(i) for a course of conduct intended to harass via written communications.
- A jury convicted Dugan; the district court sentenced him to 4–7 years (concurrent), and he appealed.
- On appeal Dugan argued (1) the statute was unconstitutional as applied (First Amendment), (2) jury instructions and a special verdict were improper, (3) insufficient evidence of harassment, and (4) improper admission of evidence that he had been warned not to send unsolicited letters.
Issues
| Issue | Plaintiff's Argument (Dugan) | Defendant's Argument (State) | Held |
|---|---|---|---|
| 1. First Amendment as‑applied challenge to § 6-2-506 | Prosecution punished protected speech (letters) and statute as applied reached protected expression | § 6-2-506 punishes harassing conduct (course of conduct + specific intent) not speech; statute limits reach (course of conduct, substantial emotional distress, objective reasonableness) | Statute constitutional as applied; letters constituted harassing conduct (specific intent, course of conduct, victim seriously alarmed) |
| 2. Jury instructions & special verdict form | Court should have instructed jury on First Amendment exceptions and given Miller obscene definition; special interrogatory required to identify whether conviction rested on threats or obscenity | Proposed theory instruction misstated law; Miller definition not required for this conduct-focused statute; threats/obscenity are alternative means of the single harassment element, so no special interrogatory needed | District court did not abuse discretion: rejected proposed defense instruction as legally incorrect; refusal to give Miller obscene instruction proper because ordinary meaning applies; special verdict not required |
| 3. Sufficiency of the evidence to prove "harass" under § 6-2-506(a)(ii) | Letters not threats and not obscene (thus insufficient to show statutory harassment) | Evidence showed repeated unwanted explicit communications, warnings ignored, and victim suffered substantial emotional distress — sufficient to prove harassment | Evidence sufficient: jury could find letters were lewd/obscene under ordinary meaning and that elements of harassment were met |
| 4. Admission of evidence that Dugan had been warned not to send letters | Admission was hearsay and violated Confrontation Clause; prior reprimands and portions of recorded interview should be excluded | Recording contained admissible party admissions and non‑assertive questions; correctional staff testimony was probative of intent and not unduly prejudicial | No abuse of discretion and no Confrontation Clause violation: investigator’s questions/context not hearsay; Dugan’s responses were admissions; captain’s testimony probative and properly balanced under Rules 401/403 |
Key Cases Cited
- Luplow v. State, 897 P.2d 463 (Wyo. 1995) (stalking statute not overbroad; may permissibly limit speech when targeting harassing conduct)
- People v. Relerford, 104 N.E.3d 341 (Ill. 2017) (invalidated broader Illinois stalking-by-mail statute that lacked a specific‑intent element)
- United States v. Osinger, 753 F.3d 939 (9th Cir. 2014) (upheld federal stalking statute where intent and course‑of‑conduct limits tether law to conduct)
- United States v. Petrovic, 701 F.3d 849 (8th Cir. 2012) (similar endorsement of intent-plus-course‑of‑conduct approach to avoid First Amendment overbreadth)
- Cohen v. California, 403 U.S. 15 (1971) (conviction overturned where punishment rested solely on content of protected speech)
- Miller v. California, 413 U.S. 15 (1973) (Miller test defines obscene speech outside First Amendment protection)
- R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (content‑based restrictions on speech are subject to strict scrutiny)
- United States v. Ackell, 907 F.3d 67 (1st Cir. 2018) (federal stalking statute not facially overbroad but may have unconstitutional applications; as‑applied review protects speech)
- Tanner v. State, 57 P.3d 1242 (Wyo. 2002) (jury unanimity rule applies where statute presents alternative elements; distinguished from alternative means of a single element)