IN THE SUPREME COURT, STATE OF WYOMING

2020 WY 40

 OCTOBER TERM, A.D. 2019

March 23, 2020

JESSE JAMES HARTLEY,

Appellant

(Defendant),

v.

THE STATE OF WYOMING,

Appellee

(Plaintiff).

S-19-0206

Appeal from the District Court of Uinta County

The Honorable Joseph B. Bluemel, Judge

Representing Appellant:

Eric F. Phillips, Eric F. Phillips Law Office, Rock Springs, Wyoming. Argument by 

Mr. Phillips.

Representing Appellee:

Bridget L. Hill, Attorney General; Jenny Lynn Craig, Deputy Attorney General; 

Joshua C. Eames, Senior Assistant Attorney General; Russell W. Farr, Senior 

Assistant Attorney General. Argument by Mr. Eames.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, 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.
1

FOX, Justice.

[¶1] A jury convicted Jesse James Hartley of first-degree felony murder and aggravated 

child abuse. Mr. Hartley appeals, arguing that the district court erred in denying his request 

for two lesser-included offense instructions and that prosecutorial misconduct required a 

new trial. We affirm as to those issues but reverse in part and remand to correct a 

sentencing error. 

ISSUES

[¶2] Mr. Hartley raises two issues on appeal: 

1. Did the district court improperly deny Mr. Hartley’s request

for two lesser-included offense instructions?

2. Did the prosecutor commit prosecutorial misconduct 

during her closing statements? 

FACTS

[¶3] On May 1, 2018, B.G.’s mother entrusted her boyfriend, Jesse James Hartley, with 

the two-year-old child’s care. Later that afternoon, Mr. Hartley called the mother saying 

B.G. was unresponsive and he was driving B.G. from their home in Mountain View to the 

hospital in Evanston. B.G.’s mother was in Evanston when she received the call and she 

immediately went to the hospital and asked for an ambulance to meet Mr. Hartley and B.G.

en route. Despite the hospital staff’s best efforts, B.G. died. The responding pediatrician, 

Dr. Gilmartin, noted injuries on B.G.’s body indicative of child abuse. Dr. Gilmartin 

documented these injuries and performed a CT scan of B.G.’s entire body which indicated 

abusive head trauma, previously known as “shaken baby syndrome.” The following day, 

Dr. Bennett performed B.G.’s autopsy and found that he died of “non-accidental abusive 

head trauma.” 

[¶4] Mr. Hartley gave several statements to law enforcement about what occurred on the 

day of B.G.’s death; the first in a patrol vehicle after the ambulance met Mr. Hartley and 

B.G. on the interstate, the second and third at the hospital, and the final statement at the 

Uinta County Jail after his arrest. Each statement contained different versions of the events 

leading to B.G.’s death.

[¶5] The State charged Mr. Hartley with first-degree felony murder pursuant to Wyo. 

Stat. Ann. §§ 6-2-101(a) & (b) and 6-2-503(a)(ii)(A) & (c) (LexisNexis 2019), aggravated 

child abuse pursuant to Wyo. Stat. Ann. § 6-2-503(a)(ii)(A) & (c), and first-degree sexual 

abuse of a minor pursuant to Wyo. Stat. Ann. § 6-2-314(a)(i) & (b). Mr. Hartley did not 

testify, but the State introduced evidence of his statements to law enforcement. Following 
2

a four-day trial, a jury convicted Mr. Hartley of first-degree felony murder and aggravated 

child abuse and acquitted him of first-degree sexual abuse of a minor. The district court 

sentenced Mr. Hartley to life in prison “with the opportunity for parole” for the felony 

murder and a concurrent sentence of eighteen to twenty-five years in prison for aggravated 

child abuse. This appeal followed. 

DISCUSSION

I. The district court did not err in denying Mr. Hartley’s lesser-included offense 

instructions

[¶6] Mr. Hartley objected to the district court’s denial of his lesser-included offense 

instructions. We review his claim that the district court erred de novo. Nickels v. State, 

2015 WY 85, ¶ 9, 351 P.3d 288, 290 (Wyo. 2015).

[¶7] At oral argument, Mr. Hartley conceded felony murder does not contain any lesserincluded offenses. Thus, we address this argument only briefly. At trial, Mr. Hartley 

requested instructions for criminally negligent homicide and involuntary manslaughter,

arguing they are lesser-included offenses of first-degree murder. The district court declined 

to give the instructions, and we agree with its conclusion. 

[¶8] The State charged Mr. Hartley with first-degree murder under a felony-murder 

theory; here, that B.G. died during the perpetration of child abuse or aggravated child 

abuse. Wyo. Stat. Ann. § 6-2-101(a). This Court has held that “a bright line rule is 

appropriate in the context of felony murder, and the statutory definition does not logically 

permit the giving of any instruction on any lesser included offense with respect to felony 

murder.” Jansen v. State, 892 P.2d 1131, 1139 (Wyo. 1995). That bright-line rule finds 

support in the statutory elements test that we customarily apply to determine if a lesserincluded offense instruction is available. See Nickels, 2015 WY 85, ¶ 13, 351 P.3d at 291 

(citing State v. Keffer, 860 P.2d 1118, 1133-34 (Wyo. 1993) (“[T]he statutory elements or 

‘Blockburger test’ should be used to determine whether a statute sets out a lesser included 

offense.”) (footnote omitted)). “[A] crime is a lesser included offense ‘if its elements are 

a subset’ of the elements of the greater offense.” Cecil v. State, 2015 WY 158, ¶ 17, 364 

P.3d 1086, 1091 (Wyo. 2015) (quoting Bowlsby v. State, 2013 WY 72, ¶ 9, 302 P.3d 913, 

916 (Wyo. 2013)). See also W.R.Cr.P. 31(c). Felony murder “imposes a form of strict 

responsibility on those perpetrating the underlying felony for killings occurring during the 

commission of that felony. . . . [T]he necessary intent the State must prove to convict a 

person of felony murder is the intent associated with the underlying felony.” Mares v. 

State, 939 P.2d 724, 729 (Wyo. 1997), post-conviction relief granted on other grounds. In 

this case, the State had to prove the elements of either child abuse or aggravated child 

abuse, Wyo. Stat. Ann. § 6-2-503(a)(ii)(A) & (c), and then prove that B.G.’s death occurred 

during the perpetration of that crime. In contrast, the crime of criminally negligent 

homicide does not require the State to prove any of the elements of child abuse under Wyo. 
3

Stat. Ann. § 6-2-503, and it contains the additional element of negligence. Wyo. Stat. Ann. 

§ 6-2-107. Likewise, involuntary manslaughter does not require the State to prove any of 

the elements of child abuse and it contains the additional element of recklessness. Wyo. 

Stat. Ann. § 6-2-105(a)(ii). Both criminally negligent homicide and involuntary 

manslaughter contain almost entirely different elements from the felony murder charge in 

this case, and they are therefore not lesser-included offenses of felony murder. Mr. Hartley 

was not entitled to any lesser-included offense instructions, and the district court did not 

err in denying his request. 

II. The prosecutor’s statements during closing arguments did not constitute 

prosecutorial misconduct 

[¶9] Prosecutorial misconduct occurs when a prosecutor illegally or improperly attempts 

to persuade a jury “to wrongly convict a defendant or assess an unjustified punishment.” 

Bogard v. State, 2019 WY 96, ¶ 16, 449 P.3d 315, 320 (Wyo. 2019) (quoting Dixon v. 

State, 2019 WY 37, ¶ 37, 438 P.3d 216, 231 (Wyo. 2019)). Mr. Hartley contends that the 

prosecutor committed three instances of misconduct during her closing argument. 

Mr. Hartley did not object, and we therefore apply a plain error standard, which requires 

Mr. Hartley to show: “1) the record clearly reflects the incident urged as error; 2) a 

violation of a clear and unequivocal rule of law; and 3) that he was materially prejudiced 

by the denial of a substantial right.” Bogard, 2019 WY 96, ¶ 21, 449 P.3d at 321 (quoting 

Carroll v. State, 2015 WY 87, ¶ 11, 352 P.3d 251, 255 (Wyo. 2015)). 

[¶10] Mr. Hartley asserts the prosecutor committed two types of misconduct during her 

closing argument. First, he argues the prosecutor twice commented on Mr. Hartley 

exercising his right to remain silent and, in doing so, shifted the burden of proof onto the 

defense. Second, Mr. Hartley argues the prosecutor improperly gave her opinion on 

evidence presented and therefore misled the jury. We address each separately. 

A. Commenting on the right to remain silent

[¶11] During closing argument, the prosecutor made two statements that Mr. Hartley 

asserts commented on his right to remain silent and impermissibly shifted the burden of 

proof onto the defense. Referring to Mr. Hartley’s response during the investigative 

interview at the Uinta County Jail, the prosecutor said, “[w]hen asked why on earth then 

would he have these injuries to the front of his face, the frenulum tear, and the bite on the 

tongue if he hit the back of his head—that doesn’t make sense—Jesse had nothing he 

could offer.” (Emphasis added.) Second, the prosecutor commented on where pieces of 

physical evidence were found in the house and how that evidence did not align with

Mr. Hartley’s statements to law enforcement:

More concerning is, according to Mr. Hartley, there was no 

reason they would be that day in this hallway bathroom. But 
4

in the hallway bathroom, you have Item 12, Item 29, Item 30, 

and Item 31 of tested material. Three of those items tested 

positive for [B.G.]’s blood. And yet no explanation for why 

they could have been there other than the result of the abuse 

that we know actually occurred in that home.

(Emphasis added.) Both errors are clearly reflected in the record, so the first requirement 

of the plain error test is met. Carroll, 2015 WY 87, ¶ 11, 352 P.3d at 255 (citing Masias 

v. State, 2010 WY 81, ¶ 20, 233 P.3d 944, 950 (Wyo. 2010)).

[¶12] The second step requires Mr. Hartley to establish a “violation of a clear and 

unequivocal rule of law in a clear and obvious, not merely arguable, way.” Bogard, 2019 

WY 96, ¶ 21, 449 P.3d at 321. Mr. Hartley is correct that there is a clear and unequivocal 

rule of law that a prosecutor may not comment on a defendant’s constitutional right to 

remain silent. Id. at ¶ 28, 449 P.3d at 322 (citing Lancaster v. State, 2002 WY 45, ¶ 36, 43 

P.3d 80, 95 (Wyo. 2002), overruled on other grounds by Jones v. State, 2019 WY 45, 439 

P.3d 753 (Wyo. 2019)). However, his claim fails because the prosecutor’s statements do 

not violate the identified rule of law. 

[¶13] Attorneys are afforded wide latitude during closing argument and may comment on 

evidence admitted during trial and suggest reasonable inferences. Bogard, 2019 WY 96,

¶ 19, 449 P.3d at 321. When reviewing comments alleged to violate the rule, “[w]e 

consider the entire context in which the statements were made to decide whether there was 

an impermissible comment upon the defendant’s exercise of his right of silence, and will 

not take sentences and phrases out of context.” Id. at ¶ 30, 449 P.3d at 323. Viewing the 

prosecutor’s statements in context, the prosecutor did not comment on Mr. Hartley’s right 

to remain silent or shift the burden to the defense. Rather, she compared the statements

Mr. Hartley made to law enforcement to the physical evidence admitted during trial and

indicated inconsistencies. Mr. Hartley fails to establish the second requirement of plain 

error and his claim that the prosecutor committed misconduct by commenting on his right 

to remain silent fails. 

B. Improper opinion argument

[¶14] Mr. Hartley next argues that the prosecutor committed misconduct by impermissibly 

offering her opinion of the evidence. During closing argument, the prosecutor said:

And in the discussion that they had at the hospital in the 

parking lot, I was struck by how calm he actually was at that 

point. He was certainly hysterical before but calm in providing 

responses and concerns and discussing things with them, while 

hearing in the background the wailing of [B.G.]’s mother. 
5

(Emphasis added.) The first requirement of plain error analysis is satisfied.

[¶15] We move next to determining whether the prosecutor’s statements violated a clear 

and unequivocal rule of law in a clear and obvious way. Bogard, 2019 WY 96, ¶ 21, 449 

P.3d at 321. “We have held that it is improper for a prosecuting attorney to inject his 

opinion as to the weight of the evidence in arguing to the jury.” Harper v. State, 970 P.2d 

400, 405 (Wyo. 1998) (citing McLaughlin v. State, 780 P.2d 964, 967 (Wyo. 1989)); see 

also Dixon, 2019 WY 37, ¶ 49, 438 P.3d at 234 (citing Teniente v. State, 2007 WY 165, 

¶ 30, 169 P.3d 512, 524 (Wyo. 2007)). In Mintun, we explained that the reason for this 

rule is that a prosecutor may be seen as an authority whose opinion carries greater weight 

than the jury’s opinion. Mintun v. State, 966 P.2d 954, 960 (Wyo. 1998). Thus, Mr. Hartley 

identified a clear and unequivocal rule of law. However, he fails to demonstrate that this 

rule was violated in a clear and obvious way. 

[¶16] We evaluate the “propriety of closing arguments in the context of the entire 

argument and compare them with the evidence produced at trial.” Dixon, 2019 WY 37, 

¶ 41, 438 P.3d at 231 (quoting Doherty v. State, 2006 WY 39, ¶ 18, 131 P.3d 963, 969 

(Wyo. 2006)). We have evaluated a prosecutor’s use of “I” statements numerous times in 

the past to determine whether the statements are so damaging that they prejudice a 

defendant’s right to a fair trial. Buszkiewic v. State, 2018 WY 100, ¶ 20, 424 P.3d 1272, 

1278 (Wyo. 2018) (“Although the prosecutor’s use of personal pronouns was not ideal, 

. . . , when viewed in context, it is clear she was not attempting to sway the jury with her 

personal beliefs.”); Carroll, 2015 WY 87, ¶ 35, 352 P.3d at 259-60 (finding that adding the 

phrase “I believe” in front of the statement “we have proven beyond a reasonable doubt

. . .” did not transform the statement from commenting on a reasonable inference about the 

evidence to an improper expression of the prosecutor’s belief); Harper, 970 P.2d at 405 

(“The occasional inclusion of phrases like ‘I believe’ or ‘I think’ in an argument, however, 

is not prejudicial.”); Mintun, 966 P.2d at 960 (“We have recognized that ‘I believe’ and ‘I 

think’ are commonly used, colloquial phrases; a prosecutor’s inadvertent and infrequent 

use of these phrases is not prejudicial.”). In this case, the prosecutor used the phrase “I 

was struck by” when describing Mr. Hartley’s third interview with law enforcement. The 

prosecutor’s use of a personal pronoun was not ideal. Buszkiewic, 2018 WY 100, ¶ 20, 

424 P.3d at 1278. However, when viewed in context, the prosecutor was not attempting to 

use her position of authority to sway the jury. Here, singular use of the term “I was struck 

by” simply emphasized a piece of evidence admitted at trial. The prosecutor’s use of the 

personal pronoun “I” did not violate the rule against prosecutors injecting their personal 

opinion when arguing to the jury and, in any event, it was not prejudicial. Thus, 

Mr. Hartley fails to establish plain error, and his claim fails. 

[¶17] Finally, we address a sentencing error brought to our attention by the State. See 

Kahlsdorf v. State, 823 P.2d 1184, 1190 (Wyo. 1991) (correcting an illegal sentence despite 

failure to raise the issue on appeal). The district court sentenced Mr. Hartley to life in 

prison “with the opportunity for parole” for the felony murder and a concurrent sentence 
6

of eighteen to twenty-five years in prison for aggravated child abuse. Wyo. Stat. Ann. § 6-

2-101(b) does not authorize the sentence imposed by the district court. As the State did 

not seek the death penalty, Mr. Hartley could be sentenced to either “life imprisonment 

without parole or life imprisonment according to law.” Wyo. Stat. Ann. § 6-2-101(b). 

Additionally, as aggravated child abuse was the underlying sentence for the first-degree 

felony murder charge, sentencing Mr. Hartley to eighteen to twenty-five years on that 

charge was improper. Mares, 939 P.2d at 730 (citing Roderick v. State, 858 P.2d 538, 552 

(Wyo. 1993); Castle v. State, 842 P.2d 1060, 1061 (Wyo. 1992)). “[W]e hold the 

imposition of multiple punishments for felony murder and the underlying felony violates 

the Double Jeopardy Clauses of the United States and Wyoming constitutions.” Cook v. 

State, 841 P.2d 1345, 1352-53 (Wyo. 1992). 

[¶18] We affirm in part, but reverse and remand to correct the sentencing error.