Daniel Ray BOWLSBY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
No. S-12-0078
Supreme Court of Wyoming
June 12, 2013
2013 WY 72 | 302 P.3d 913
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.
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
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
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 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
Snow v. State, 2009 WY 117, ¶ 13, 216 P.3d 505, 509 (Wyo.2009).
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 law.
[¶8] The
[¶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 (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 show was transgressed if he is to establish plain error.” We agree with that proposi
[¶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
(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
(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
[¶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
[¶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
[¶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 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 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
[¶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
(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 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 by [the statute].” Noting that neither interpretation posed constitutional problems, id., at 424, n. 6, 105 S.Ct. at 2087, 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.” Liparota, 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.
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., 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, 72 S.Ct. 240, that presume a scienter requirement in the absence of express contrary intent.” Id., 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., at 72, 115 S.Ct. at 469. Both of these factors led the Court to conclude that
[¶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,
(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
[¶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 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
[¶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 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. Like-
[¶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 Or. 575, 651 P.2d 1075 (1982). Our legislature has enacted a number of statutes establishing such affirmative defenses. For example,
(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
[¶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 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
[¶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
[¶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.
Notes
(Emphasis omitted.) See also Rutledge v. United States, 517 U.S. 292, 302 (1996).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 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.
- On or about the _______ day of _______, 20__
- In _______ County, Wyoming
- The Defendant,
- Committed [sexual intrusion] [sexual contact]
- With [an ancestor] [a descendant] [a {brother} {sister} of the whole or half blood].
(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.