Ricky L. Dougherty v. State, 2016 WY 62

On July 1, 2014 an 11‑year‑old girl observed Ricky Lee Dougherty within 2–4 feet of her in a Cheyenne park, partially exposed and masturbating; her mother reported the incident and Dougherty was charged under Wyo. Stat. § 6‑4‑403(b)(iii) (indecent/obscene act in the presence of a child).
The State sought to join a separate, similar prior charge (later dismissed) and gave notice it intended to offer W.R.E. 404(b) evidence of prior convictions to show motive, intent, or lack of mistake.
The district court initially approved a defense‑proposed jury instruction defining “presence” (adopting language from a Florida case), but at the close of evidence the court declined to give that instruction, explaining it would not aid the jury.
The court allowed limited 404(b) evidence but, because the prosecution failed to disclose intended details pretrial, the State instead admitted certified judgments and sentences showing Dougherty’s prior convictions (1992 and 2009) without any underlying factual testimony.
The jury convicted Dougherty and he was sentenced to 4–5 years; on appeal he argued (1) the court erred by refusing the “presence” instruction and (2) the court improperly admitted the judgment and sentence documents as 404(b) evidence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court erred by refusing to instruct jury on meaning of “presence” in § 6‑4‑403(b)(iii)	Dougherty: court initially approved definition; defense tailored cross‑examination and relied on that element; reversal of ruling prejudiced defense	State: definition from a Florida case is not required and term is not unconstitutionally vague; instruction not necessary	Court: No abuse of discretion; district court properly declined the extra instruction because it would not aid the jury
Whether admitting certified judgments/sentences of prior convictions was proper 404(b) evidence	Dougherty: documents simply showed propensity; without factual details they could not prove motive, intent, or lack of mistake and were unduly prejudicial	State: prior convictions were relevant to proper 404(b) purposes; defense failed to timely object to form at trial	Court: Abuse of discretion to admit judgments alone; exhibits only showed propensity and lacked underlying facts to serve proper 404(b) purpose — admission was prejudicial; conviction reversed and remanded for new trial

Adekale v. State, 344 P.3d 761 (Wyo. 2015) (district courts have substantial latitude in tailoring jury instructions)
Brown v. State, 340 P.3d 1020 (Wyo. 2015) (review standards and prejudice analysis for jury‑instruction error)
Luedtke v. State, 117 P.3d 1227 (Wyo. 2005) (wide latitude in instructing juries; reversible error only where instructions mislead)
Daniels v. State, 335 P.3d 483 (Wyo. 2014) (courts generally should honor earlier rulings absent legitimate reason)
Munoz v. State, 307 P.3d 829 (Wyo. 2013) (reversing where mid‑trial reversal of pretrial W.R.E. 404(b) ruling deprived defendant of fair trial)
Hodge v. State, 355 P.3d 368 (Wyo. 2015) (procedural rule treating pretrial demand for 404(b) notice as timely objection; standard of review for admissibility)
Gleason v. State, 57 P.3d 332 (Wyo. 2002) (four‑part test for admissibility of similar‑act evidence under W.R.E. 404(b))
Lindstrom v. State, 343 P.3d 792 (Wyo. 2015) (similar‑act evidence must be more probative than prejudicial)
State v. Wright, 719 N.W.2d 910 (Minn. 2006) (conviction record alone generally insufficient to prove underlying acts for purposes of 404(b))