IN THE SUPREME COURT, STATE OF WYOMING

2020 WY 29

 OCTOBER TERM, A.D. 2019

March 3, 2020

JOSEPH D. LAJEUNESSE,

Appellant

(Defendant),

v.

THE STATE OF WYOMING,

Appellee

(Plaintiff).

S-19-0024

Appeal from the District Court of Campbell County

The Honorable Michael N. Deegan, Judge

Representing Appellant:

Robert J. O’Neil, Robert J. O’Neil, PC, Gillette, Wyoming. Argument by Mr. 

O’Neil.

Representing Appellee:

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

General; Christyne M. Martens, Senior Assistant Attorney General; Timothy P. 

Zintak, Assistant Attorney General. Argument by Mr. Zintak.

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

GRAY, Justice.

[¶1] Joseph LaJeunesse was convicted of two counts of sexual intrusion on a victim 

under Wyo. Stat. Ann. § 6-2-314(a)(i) (actor sixteen or older and victim under thirteen). 

He appeals his convictions claiming the district court improperly admitted testimony of 

other wrongs or acts under W.R.E. Rule 404(b) and improperly admitted testimony about 

the victim’s earlier statements to a forensic interviewer under W.R.E. Rule 801(d)(1)(B). 

He also contends the district court erred in allowing the State to amend the charging 

documents at the end of the State’s presentation of evidence, and this error denied him 

the opportunity to effectively cross-examine witnesses in violation of the Confrontation 

Clause of the United States and Wyoming Constitutions. We affirm.

ISSUES

[¶2] The issues are:

1. Did the district court err when it admitted W.R.E. Rule 

404(b) evidence at trial?

2. Did the district court err when it admitted testimony 

under W.R.E. Rule 801(d)(1)(B) at trial?

3. Did the district court err when it allowed the State to 

amend the Felony Information after the State had 

presented its witnesses?

FACTS

[¶3] In 2015, when C.L. was seven years old, she, her parents, and her three siblings 

moved from Colorado to Gillette, Wyoming. The family lived with Mother’s parents in a 

two-bedroom apartment on Stanley Street. C.L. lived in the apartment until May 31, 

2016, when she was taken into custody by the Department of Family Services for reasons

unrelated to this appeal.

[¶4] During two forensic interviews conducted while C.L. was in State custody, C.L.

described times where her father, Mr. LaJeunesse, initiated sexual contact with her.

These events occurred after the family moved from Colorado to Stanley Street. The first 

incident occurred when C.L. was taking a shower. She reported that Mr. LaJeunesse

entered the bathroom, shut the door, and knelt by the tub. He then licked C.L.’s vaginal 

area. The second incident occurred while C.L. was taking a nap. Her father climbed onto 

the top bunk bed where C.L. was resting. He removed her pajama bottoms and 

underwear, and “[p]ut his private in [her] bottom.”
2

[¶5] An arrest warrant was issued for Mr. LaJeunesse on January 31, 2017, charging 

him with two counts of first-degree sexual abuse of a minor under Wyo. Stat. Ann. § 6-2-

314(a)(i), (c). After a three-day trial, a jury found Mr. LaJeunesse guilty of both counts. 

The district court sentenced him to not less than thirty years in prison on each count to 

run consecutively. Mr. LaJeunesse timely appeals.

Procedural History

[¶6] Prior to trial, the State notified Mr. LaJeunesse it would seek admission of W.R.E.

Rule 404(b) evidence. The State planned to present testimony from Mr. LaJeunesse’s 

three adult nieces about sexual encounters with Mr. LaJeunesse when the nieces were 

children in the late 1990s.1

 Mr. LaJeunesse objected, claiming the proposed 404(b) 

evidence was not offered for a proper purpose under the rule, and it was more prejudicial 

than probative. The district court heard arguments and received exhibits on the question 

of the admissibility of this evidence. It found that, although a close call, the probative 

value of the evidence outweighed the potential for unfair prejudice—“provided the State 

limits the testimony of the nieces so as to prevent it from becoming unnecessarily 

cumulative.” It then admitted the testimony of these witnesses for the purpose of 

establishing motive as allowed by the rule. The district court ordered that a limiting 

instruction be given to the jury prior to the testimony at trial and required the parties to

stipulate to an instruction or to propose their own. On appeal, Mr. LaJeunesse claims the 

alleged incidents were inadmissible because they were too remote in time and dissimilar 

from the current charges. 

[¶7] Mr. LaJeunesse also objected to the district court’s admission of the testimony of 

forensic examiner, Brandi Tonkel, about statements made by C.L. during forensic 

interviews. After defense counsel made opening statement and C.L. had testified, the 

State moved to admit Ms. Tonkel’s testimony as evidence of C.L.’s prior consistent 

statements under W.R.E. Rule 801(d)(1)(B). Mr. LaJeunesse argued neither the defense

opening statement or cross-examination of C.L. raised an express or implied charge that 

C.L.’s testimony was the result of recent fabrication, improper influence, or motive. The 

district court allowed the testimony, and Mr. LaJeunesse renews his argument on appeal.

[¶8] At the close of the State’s presentation of evidence, the State moved to amend the 

dates set forth in the Felony Information. The Felony Information originally alleged the

crimes occurred between December 1, 2015, and May 31, 2016, based on information 

provided by C.L.’s grandmother. The State later learned from C.L.’s grandfather that

C.L. and her family took up residence in the Stanley apartment around March 10, 2015. 

The State moved to amend the Information to conform to the evidence presented at trial.

1 The State moved to present additional Rule 404(b) evidence, but the district court denied admission 

unless Mr. LaJeunesse raised a lack of intent as part of his defense. 
3

At trial, Mr. LaJeunesse objected, claiming an amendment at this stage of the trial 

prevented him from bringing alibi witnesses for the expanded period of time and violated

his due process right to notice of the charges against him. He asked for a continuance. 

The district court denied Mr. LaJeunesse’s request for a continuance and allowed the 

amendment. On appeal, Mr. LaJeunesse abandons his argument relating to alibi 

witnesses. He claims the amendment was untimely, and he was substantially prejudiced

because it denied him the opportunity to effectively cross-examine C.L. and Ms. Tonkel,

the only two substantive witnesses at trial.

STANDARD OF REVIEW

[¶9] In his first two issues, Mr. LaJeunesse contends the district court erred when it

admitted testimony under W.R.E. Rules 404(b) and 801(d)(1)(B). This Court reviews 

alleged errors in the admission of evidence for an abuse of discretion. Hutchinson v. Taft, 

2010 WY 5, ¶ 27, 222 P.3d 1250, 1257 (Wyo. 2010). “Determining whether the trial 

court abused its discretion involves the consideration of whether the court could 

reasonably conclude as it did, and whether it acted in an arbitrary and capricious

manner.” Ortiz v. State, 2014 WY 60, ¶ 67, 326 P.3d 883, 897 (Wyo. 2014) (citations 

omitted). “A trial court’s evidentiary rulings are entitled to considerable deference, and 

will not be reversed so long as there exists a legitimate basis for the trial court’s ruling.” 

Id. (citation and internal quotation marks omitted).

I. Did the district court err when it admitted W.R.E. Rule 404(b) evidence at trial?

[¶10] Mr. LaJeunesse claims the district court abused its discretion when it allowed 

testimony alleging earlier acts of sexual abuse of his nieces when they were children

under W.R.E. Rule 404(b). This rule provides:

(b) Other crimes, wrongs, or acts.—Evidence of other crimes, 

wrongs, or acts is not admissible to prove the character of a 

person in order to show that he acted in conformity therewith. 

It may, however, be admissible for other purposes, such as 

proof of motive, opportunity, intent, preparation, plan, 

knowledge, identity, or absence of mistake or accident . . . .

W.R.E. Rule 404(b). District courts apply a mandatory test in determining the

admissibility of W.R.E. Rule 404(b) evidence:

(1) the evidence must be offered for a proper purpose; (2) the 

evidence must be relevant; (3) the probative value of the 

evidence must not be substantially outweighed by its potential 

for unfair prejudice; and (4) upon request, the trial court must 
4

instruct the jury that the similar acts evidence is to be 

considered only for the proper purpose for which it was 

admitted.

Griggs v. State, 2016 WY 16, ¶ 128, 367 P.3d 1108, 1143 (Wyo. 2016) (citations 

omitted).

[¶11] “In Gleason [v. State, 2002 WY 161, ¶ 30, 57 P.3d 332, 343 (Wyo. 2002),] we set 

forth factors that the district court must examine to determine the admissibility of 404(b) 

evidence, and we required the court to articulate its findings.” Garrison v. State, 2018 

WY 9, ¶ 11, 409 P.3d 1209, 1213 (Wyo. 2018). We do not require the trial court to make 

express findings on each factor. Gleason v. State, 2002 WY 161, ¶ 28, 57 P.3d 332, 343

(Wyo. 2002). These Gleason factors are:

1. How clear is it that the defendant committed the prior bad 

act?

2. Does the defendant dispute the issue on which the state is 

offering the prior bad acts evidence?

3. Is other evidence available?

4. Is the evidence unnecessarily cumulative?

5. How much time has elapsed between the charged crime 

and the prior bad act?

. . . The trial court should [then] weigh [the following] factors 

against the probative value of the evidence:

1. The reprehensible nature of the prior bad act. The more 

reprehensible the act, the more likely the jury will be tempted 

to punish the defendant for the prior act.

2. The sympathetic character of the alleged victim of the 

prior bad act. Again, the jury will be tempted to punish the 

defendant for the prior act if the victim was especially 

vulnerable.

3. The similarity between the charged crime and the prior 

bad act. The more similar the acts, the greater is the 

likelihood that the jury will draw the improper inference that 

if the defendant did it once, he probably did it again.
5

4. The comparative enormity of the charged crime and the 

prior bad act. When the prior act is a more serious offense 

than the charged crime, the introduction of that act will tend 

to place the defendant in a different and unfavorable light.

5. The comparable relevance of the prior bad act to the

proper and forbidden inferences. Evidence of the prior bad 

act may be much more probative of bad character than it is of 

any legitimate inference permitted by Rule 404(b).

6. Whether the prior act resulted in a conviction. The jury 

may be tempted to punish the defendant if they believe he 

escaped punishment for the prior bad act.

Gleason, ¶ 27, 57 P.3d at 342–43 (citations omitted).

[¶12] “This analysis is intended to be conducted by the trial court, and we do not apply it 

anew on appeal.” Mayhew v. State, 2019 WY 38, ¶ 27, 438 P.3d 617, 624 (Wyo. 2019).

“Our role is to determine whether the trial court abused its discretion in considering the 

required factors.” Id.

[¶13] Mr. LaJeunesse concedes the district court made detailed findings on each factor

but argues the court’s conclusion was unreasonable as a matter of law. Among other 

things, he points to the difference in Mr. LaJeunesse’s age (at the time of the previous 

conduct he was in his teens and the current charges arose when he was in his thirties); in 

the ages of his alleged victims (two nieces testified the incidents began when they were 

four or five years old and continued over a period of years; here C.L. was seven); and in 

approach (he threatened the nieces if they told anyone, when C.L. was not threatened). 

Finally, Mr. LaJeunesse argues he was never charged for any contact with his nieces. 

[¶14] The district court’s Gleason analysis noted all the distinctions raised by Mr. 

LaJeunesse. Balancing the probative value of the evidence versus the potential prejudice,

the district court determined the relevance of the uncharged misconduct to motive was 

high, but “the chance [that] the fact finder may draw [a] forbidden inference [was] also 

high.” The district court concluded:

The uncharged misconduct evidence clearly possesses

probative value with respect to the properly identified 

purposes. It helps to illuminate Defendant’s motive should he 

deny any wrongdoing or to establish his knowledge and intent 

or lack of accident/mistake should he assert he did the 

physical act in question but without the requisite intent or 
6

knowledge or that he did the act but it was accidental or 

inadvertent. And, although it is a close call, the court finds 

the probative value is not substantially outweighed by the 

potential for unfair prejudice – provided the State limits the 

testimony of the nieces so as to prevent it from becoming 

unnecessarily cumulative.

[¶15] We find no abuse of discretion in the district court’s ruling. “Motive is generally 

defined as that which leads or tempts the mind to indulge in a particular act.” Mayhew,

¶ 31, 438 P.3d at 627 (citing Swett v. State, 2018 WY 144, ¶ 39, 431 P.3d 1135, 1146

(Wyo. 2018)). “Although motive is not an element of any charged crime, it is an 

intermediate fact that the prosecution is permitted to prove.” Mayhew, ¶ 31, 438 P.3d at 

627. “Motive becomes particularly important in child sex abuse cases where the accused 

denies any wrongdoing, thereby creating an ‘evidentiary conflict’ between himself and 

the victim.” Winters v. State, 2019 WY 76, ¶ 82, 446 P.3d 191, 216 (Wyo. 2019); Elliott 

v. State, 600 P.2d 1044, 1048 (Wyo. 1979); see also Griggs, ¶ 131, 367 P.3d at 1143–44 

(recognizing “motive to sexually abuse children” as proper use of other acts evidence).

[¶16] Our holding in Winters controls the resolution of Mr. LaJeunesse’s claims. In 

Winters, the defendant also argued there were “no factual similarities” between the

charges at hand and his prior sexual misconduct. Winters, ¶ 83, 446 P.3d at 217. Similar 

to Mr. LaJeunesse’s argument, the defendant in Winters further argued the prior 

misconduct was “too remote in time”—over twenty years—to be relevant and probative 

to his present motive. We rejected those arguments, stating “[d]espite these

dissimilarities, the other acts . . . and the charged crimes both involved a key similarity: 

Mr. Winters sexually abusing prepubescent children . . . . [B]oth involved the same class 

of victims and both reflect [the defendant’s] sexual preference for prepubescent 

children.”2 Winters, ¶¶ 84–85, 446 P.3d at 217 (quoting Mayhew, ¶ 35, 438 P.3d at 628)

2 “This Court has consistently held that ‘sexual behavior with a defendant’s minor children, adopted 

children, or stepchildren is unusual sexual behavior permitting admission of uncharged misconduct 

evidence to prove motive when the accused denies that the charged conduct ever occurred.’” Mayhew,

¶ 31, 438 P.3d at 627 (citing Swett, ¶ 40, 431 P.3d at 1146); see also McDowell v. State, 2014 WY 21, 

¶ 28, 318 P.3d 352, 361 (Wyo. 2014); Brower v. State, 1 P.3d 1210, 1214 (Wyo. 2000); Gleason, ¶ 19, 57 

P.3d at 340–41; Rigler v. State, 941 P.2d 734, 738 (Wyo. 1997) (in child sexual abuse case, evidence of 

similar previous misconduct with different victim admissible to prove modus operandi, preparation, plan, 

intent, and credibility of victim); Daniel v. State, 923 P.2d 728, 734–35 (Wyo. 1996) (in prosecution for 

indecent liberties, testimony of six other children about sexual activities with defendant admissible to 

prove course of conduct); Jackson v. State, 891 P.2d 70, 75–76 (Wyo. 1995) (victim’s testimony of prior 

sexual acts by defendant’s stepfather admissible in indecent liberties case as proof of motive, course of 

conduct, and credibility of victim); Johnson v. State, 872 P.2d 93, 95–98 (Wyo. 1994) (in indecent 

liberties case, testimony of social worker that defendant had admitted previous sexual molestation of a 

ten-year-old girl admissible to prove motive, intent, and identity); Mitchell v. State, 865 P.2d 591, 598–99 

(Wyo. 1993) (in trial for second-degree sexual assault of a ten-year-old girl, defendant’s admission of 
7

(internal quotation marks omitted). We noted the amount of time between the prior and 

current misconduct is not limited by an arbitrary number of years. Winters, ¶ 85, 446 

P.3d at 217; see also Griswold v. State, 994 P.2d 920, 926 (Wyo. 1999) (“[R]emoteness

may affect the weight of the evidence rather than its admissibility.”). Rather, “[t]he 

question is ‘one of reasonableness’ considering ‘the context in which the evidence was 

introduced and the theory supporting its admissibility.’” Winters, ¶ 85, 446 P.3d at 218

(citing Hart v. State, 2002 WY 163, ¶ 24, 57 P.3d 348, 356 (Wyo. 2002)).

[¶17] In this case, the district court determined the evidence was probative and relevant 

to motive and gave a limiting instruction to the jury prior to the nieces’ testimony. The

testimony was succinct and not cumulative. The district court did not abuse its discretion

in deciding the earlier acts testimony was admissible.

II. Did the district court err when it admitted testimony under W.R.E. Rule 

801(d)(1)(B) at trial?

[¶18] The State moved to admit prior statements made by C.L. during interviews with 

Ms. Tonkel where C.L. identified her father as the perpetrator of the charged sexual 

contact. Mr. LaJeunesse objected, claiming the testimony was inadmissible hearsay and 

did not fall within any exception under W.R.E. Rule 801(d)(1)3 because he had not 

implied C.L. was fabricating her accusations against him, or that she was improperly 

influenced, or had an improper motive. The district court disagreed, finding the defense 

opening statement had established the predicate for admission of the testimony. Mr. 

LaJeunesse claims the district court’s conclusion is error.

[¶19] “‘Hearsay’ is a statement, other than one made by the declarant while testifying at 

the trial or hearing, offered in evidence to prove the truth of the matter asserted.” W.R.E. 

Rule 801(c). W.R.E. Rule 802, generally, proscribes admission of hearsay. However,

sexual arousal during prior sexual activity with a three-year-old niece, for which the defendant was 

convicted, admissible to prove motive); Gezzi v. State, 780 P.2d 972, 977–78 (Wyo. 1989) (in prosecution 

for indecent liberties with daughter, testimony of older daughter as to similar misconduct with her 

admissible to prove defendant’s motive and victim’s credibility); Brown v. State, 736 P.2d 1110, 1113

(Wyo. 1987) (in prosecution for incest, testimony by victim and her half-sister implicating defendant in 

prior sexual abuse admissible because aberrant sexual behavior is probative of motive); and Elliott, 600 

P.2d at 1048–49 (in trial for second-degree sexual assault, testimony of victim’s older sister as to similar 

misconduct by defendant with her admissible to prove motive based on pedophilia).

3 W.R.E. Rule 801(d)(1)(B) provides:

(d) Statements which are not hearsay.—A statement is not hearsay if:

(1) Prior Statement by Witness.—The declarant testifies at the trial or 

hearing and is subject to cross-examination concerning the statement, 

and the statement is . . . (B) consistent with his testimony and is 

offered to rebut an express or implied charge against him of recent 

fabrication or improper influence or motive . . . .
8

W.R.E. Rule 801(d)(1)(B) allows a statement to be admitted at trial if it is a prior 

consistent statement that meets four requirements:

(1) that the declarant testify at trial; (2) that the declarant be 

subject to cross-examination concerning the prior statement; 

(3) that the prior statement be consistent with the declarant’s 

trial testimony; and (4) that the prior statement be offered to 

rebut an express or implied charge against the declarant of 

recent fabrication or improper influence or motive.

Jones v. State, 2019 WY 45, ¶ 15, 439 P.3d 753, 757–58 (Wyo. 2019) (citing Griggs, 

¶ 98, 367 P.3d at 1136) (quoting Lancaster v. State, 2002 WY 45, ¶ 17, 43 P.3d 80, 88

(Wyo. 2002), overruled by Jones, ¶ 17, 439 P.3d 753 at 758).

[¶20] Mr. LaJeunesse concedes the first three of these requirements were met. He argues

the fourth requirement was not and that the district court erred when it determined the 

defense’s opening statement accused C.L. of recent fabrication, improper influence, or 

improper motive.

[¶21] In its opening statement, defense counsel told the jury about a person Mr. 

LaJeunesse had met through his church and who then “betrayed” him. Counsel explained 

that, if Mr. LaJeunesse were to testify, he would tell them about this other person and that 

Mr. LaJeunesse felt terrible remorse because he failed to protect C.L. from this person.

4

Counsel ended with:

And you will hear testimony from [C.L.], and it will be 

disturbing, to say the least. It will upset you. I would expect 

it to upset you. [C.L.] would be a sympathetic witness, and 

she deserves our sympathy after what [another adult] did to 

her. But whether she deserves our sympathy and whether 

she’s a credible witness about what Mr. LaJeunesse is 

accused of doing are two entirely different things. And after 

cross-examining her, you will conclude that it is not to be 

believed to the required standard, beyond a reasonable 

doubt. . . .

But there are a couple of things that I would like to 

make clear to you about [C.L.] at this time. We are not 

saying that [C.L.] has recently fabricated or made up these 

allegations against her dad. We do not know at this time, and 

4 Mr. LaJeunesse did not testify at trial, and this person was not referred to by any witness after opening 

statements.
9

[we] are not saying that she has been improperly influenced 

or has an improper motive for her testimony. These questions

are for you to decide after all the evidence has been 

presented . . . . 

[¶22] With respect to the defense opening statement, the district court reasoned:

Defense counsel basically read the Rule out of the Rule book, 

essentially, in his opening remarks, telling the jury that the 

defense was not taking the position that the testimony of the 

alleged victim was offered to rebut an express or implied 

charge against her. They were not asserting that she was 

recently fabricating, or was acting under an improper 

influence or motive. But [counsel] made the remark, “That’s 

up to you, the jury.” That, in and of itself, posits that 

possibility to the jury, and thus makes the assertion that the 

jury might consider that this young lady is testifying, or was 

going to testify as she did, exactly because she was 

fabricating or subject to improper influence or motive. . . .

In addition, in opening remarks we had this, these 

vague allusions to [the other person]; and to be sure that 

wasn’t sharpened up, but nonetheless, in my view, the specter 

was presented of this evil figure, [the other person], who 

somehow had inclined this child to get on the stand and 

testify as she did against her father; that it wasn’t her father, it 

was somehow out of the genesis of [the other person]. And 

that, as well, in my mind amounts to a charge against her of 

fabrication or improper influence or motive.

[¶23] Based on the defense’s opening statement, the district court allowed Ms. Tonkel to 

testify about C.L.’s disclosures during the interviews. In a November 2016 interview, 

Ms. Tonkel testified that C.L. divulged that “she was in the shower [and] her father had 

stuck his tongue out a little bit and licked her potty with his tongue.” Following this 

disclosure, Ms. Tonkel showed C.L. an anatomical drawing. C.L. indicated her “potty” 

was her vagina. C.L. said this incident occurred after the family had moved back to 

Gillette. Ms. Tonkel further testified that at a second interview in January 2017, C.L. did 

not make a verbal statement. Instead she wrote a note that said, “He put His privit in 

butum.” Again, using the anatomical drawing, C.L. indicated “privit” was her father’s 

penis and “butum” was her buttocks. C.L. related this incident also occurred after 

moving back to Gillette from Colorado.

[¶24] “Trial courts must be cautious lest they allow admission of prior consistent 

statements any time a victim’s credibility is questioned” because a defense to the crime of 
10

sexual abuse of a minor “will necessarily entail a defense theory that what the victim said 

happened did not happen.” Jones, ¶ 24, 439 P.3d at 761. “That alone does not open the 

door for admission of prior consistent statements.” Id. However, “[t]he charge of 

fabrication or improper motive need not come only as a specific allegation during crossexamination; . . . it may be made by implication or innuendo, and it may be found in the 

‘thrust’ of the defenses and testimony presented.” Lancaster, ¶ 18, 43 P.3d at 89.

[¶25] “[T]he district court enjoys considerable latitude and broad discretion with respect 

to the admission or exclusion of evidence.” Odegard v. Odegard, 2003 WY 67, ¶ 22, 69

P.3d 917, 924 (Wyo. 2003). “We defer to a trial court’s determination and will not 

disturb the ruling if there is a legitimate basis for it.” Gonzalez-Chavarria v. State, 2019 

WY 100, ¶ 11, 449 P.3d 1094, 1097 (Wyo. 2019). We find the district court’s 

determination to be reasonable. 

[¶26] Although the defense did not directly maintain C.L. was fabricating or had been 

improperly influenced, the jury was invited to consider this possibility. We see no reason 

why the defense would quote W.R.E. Rule 801(d)(1)(B) in such a manner except to place

this exact consideration before the jury. In closing remarks, Mr. LaJeunesse’s counsel

made explicit what was implicit in the opening statement. He argued, as “sympathetic”

as C.L. was, “that doesn’t mean that what she said on the stand [was] anything more than 

what had been planted in her mind with the months and months and months of being in 

State custody.” The district court did not abuse its discretion in allowing C.L.’s prior 

consistent statements.5

III. Did the district court err when it allowed the State to amend the Felony 

Information after the State had presented its witnesses?

[¶27] Mr. LaJeunesse contends the district court erred in allowing the State to amend the 

dates of the charges in the Felony Information after the presentation of the State’s 

evidence and without granting a continuance. The objections raised by Mr. LaJeunesse at 

trial were based exclusively upon the State’s delay in seeking an amendment and his 

inability to call an alibi witness—an argument not raised on appeal—for the broadened

5 In this case, the precise source and timing of the alleged fabrication or improper influence was not 

identified. In Wyoming, W.R.E. Rule 801(d)(1)(B) does not require that prior consistent statements be 

made before the alleged improper motive arose, because “there is an inherent difficulty in determining 

when an improper motive may have arisen[.]” Jones, ¶ 16, 439 P.3d at 758 (quoting Makinen v. State, 

737 P.2d 345, 349 (Wyo. 1987)). However, a prior consistent statement made after the alleged corrupting 

influence “may be used only for rehabilitation . . . and not as affirmative evidence.” Montoya v. State, 

822 P.2d 363, 367 (Wyo. 1991). When admitting evidence for the purpose of rehabilitation, “a limiting 

instruction must be given, if requested[.]” Id. The district court did not admit Ms. Tonkel’s reiteration of 

C.L.’s disclosures as substantive evidence and provided a limiting instruction to the jury. 
11

time period. On appeal, Mr. LaJeunesse claims the amendment of the Information was 

untimely and violated his rights under the Confrontation Clause. 

A. Due Process

STANDARD OF REVIEW

[¶28] Wyoming Rule of Criminal Procedure 3(e) gives discretion to a trial judge in 

deciding whether a motion to amend an information should be granted. Albarran v.

State, 2013 WY 111, ¶ 11, 309 P.3d 817, 820 (Wyo. 2013). We review the trial court’s 

decision applying our abuse of discretion standard. See supra ¶ 10. We also have

“consistently held that the granting of a motion for continuance is within the discretion of 

the trial court” and our review, therefore, “is limited to determining whether the trial 

court abused its discretion by denying the continuance.” Young v. State, 2005 WY 136, 

¶ 9, 121 P.3d 145, 147 (Wyo. 2005) (citing In re CC, 2004 WY 167, ¶ 23, 102 P.3d 890, 

897 (Wyo. 2004); Roose v. State, 753 P.2d 574, 578 (Wyo. 1988); and Gentry v. State,

724 P.2d 450, 451 (Wyo. 1986)).

[¶29] “An accused has a constitutional right to notice of the charges against him to allow 

him a fair opportunity to defend against the charges” under the United States 

Constitution, Sixth Amendment and Wyoming Constitution, Article 1, § 10.

6 Spagner v. 

State, 2009 WY 12, ¶ 10, 200 P.3d 793, 798–99 (Wyo. 2009). When an accused’s 

constitutional right to notice of criminal charges is at issue, the determination on the 

adequacy of notice is a question of law, which we review de novo. Id.

DISCUSSION

[¶30] Mr. LaJeunesse argues the district court erred in allowing the State to amend the

dates of the Felony Information from “on or between December 1, 2015” to “on or 

between March 10, 2015” after the State had called its witnesses. Defense counsel

objected and requested a continuance, claiming the State had known the basis for the

amendment for over a month before trial began but waited until after the presentation of 

the State’s evidence before seeking the change. Mr. LaJeunesse claimed the amendment 

would violate his due process rights because it would “chang[e] the nature of the charges 

against him by expanding the time period.” The district court found there was no

additional or different offense charged and the offenses were always alleged to have 

6 Mr. LaJeunesse has presented no analysis to support an independent examination of the Wyoming 

Constitution’s due process or confrontation provisions. Therefore, we will not apply a separate analysis 

inconsistent to the federal constitution. Sheesley v. State, 2019 WY 32, ¶ 16, 437 P.3d 830, 838 (Wyo. 

2019); Bear Cloud v. State, 2014 WY 113, ¶ 14, 334 P.3d 132, 137 (Wyo. 2014).
12

occurred after C.L. returned from Denver with her family. The district court allowed the 

amendment and denied the request for a continuance.7

[¶31] Motions to amend an information are governed by W.R.Cr.P. Rule 3(e), which 

states:

(e) Amendment of information or citation.—Without leave of 

the court, the attorney for the state may amend an information 

or citation until five days before a preliminary examination in 

a case required to be tried in district court or until five days

before trial for a case not required to be tried in district court. 

The court may permit an information or citation to be 

amended:

(1) With the defendant’s consent, at any time before 

sentencing.

(2) Whether or not the defendant consents:

(A) At any time before trial if substantial rights of the 

defendant are not prejudiced.

(B) At any time before verdict or finding if no 

additional or different offense is charged and if 

substantial rights of the defendant are not 

prejudiced.

(Emphasis added.) The amendment to the Information occurred before the verdict, and 

therefore W.R.Cr.P. Rule 3(e)(2)(B) controls. See Jones v. State, 2009 WY 33, ¶ 16, 203 

P.3d 1091, 1095–96 (Wyo. 2009). As a result, we limit our analysis to whether Mr. 

LaJeunesse’s substantial rights were prejudiced.8

7 To the extent Mr. LaJeunesse claims the denial of a continuance was error, his argument must fail. He 

argues:

There are too numerous cases to mention in which it was held by the 

Wyoming Supreme Court that when counsel claims “surprise,” that the 

remedy is to ask for – and be granted – a continuance to be able to meet 

and defend the “surprise,” whatever that “surprise” may happen to be in

the particular case at bar.

He fails to cite one case so holding. We have held: “If continuances are granted upon demand, ‘great and 

unwarranted delays would be experienced in the administration of justice.’” Gentry, 724 P.2d at 452 

(citation omitted). “The trial court is in the best position to evaluate all relevant factors affecting requests 

for continuances—balancing individual interests against unnecessary postponements.” Id. As discussed 

infra ¶ 33–34, Mr. LaJeunesse does not demonstrate that denial of the continuance affected his substantial 

rights, and the district court did not abuse its discretion by denying the motion.

8 On appeal, Mr. LaJeunesse urges this Court to adopt a “structural defect” analysis, removing the need 

for showing prejudice, when the amendment of an information is requested after the State has presented 

its witnesses. “The purpose of the structural error doctrine is to ensure insistence on certain basic, 
13

[¶32] An information must “(1) contain the elements of the offense charged; (2) fairly 

inform a defendant of the charges against which he must defend; and (3) enable a 

defendant to plead an acquittal or conviction in bar of future prosecutions for the same 

offense.” Spagner, ¶ 10, 200 P.3d at 799 (citing Estrada-Sanchez v. State, 2003 WY 45, 

¶ 13, 66 P.3d 703, 708 (Wyo. 2003)). “A detailed affidavit attached to the information 

may provide some of this information.” Spagner, ¶ 10, 200 P.3d at 799.

[¶33] The facts in this case are nearly identical to those in Spagner. In Spagner, the 

defendant was accused of multiple counts of sexual assault on a minor, including one 

count in 2004 while she was living with her grandmother. Id. ¶ 4, 200 P.3d at 795. After 

the State had presented its case, the defendant moved for a judgment of acquittal on the

count alleged to have occurred in 2004, because testimony from the grandmother at trial 

established the minor had not moved in with her until 2005. Id. ¶ 19, 200 P. 3d at 801. 

We upheld the district court’s decision to grant the amendment because the charges in the

Information were “in the words of the respective statutes” which “fairly informed [the 

defendant] of the charges against which he must defend,” and the State would be

“precluded from further prosecuting the appellant for any sexual assault crimes against 

this victim during the full time period alleged.” Id. ¶ 12, 200 P. 3d at 799 (citation 

omitted). We concluded:

Finally, we note that Wyoming follows the rule that the 

sufficiency of an information is determined from a broad and 

enlightened standpoint of right reason rather than from a 

narrow view of technicality and hairsplitting. The key is

whether the defendant has been misled to his prejudice. Here, 

where the Affidavit attached to the Information clearly 

indicated that the sexual assaults began after the appellant 

moved into the victim’s grandmother’s house, the appellant 

was not misled by a general date statement that included 

periods before he moved into the house. Beyond that, the 

lack of factual specificity goes not to the constitutional 

adequacy of the notice, but to the credibility of the State’s 

case.

Id. ¶ 13, 200 P.3d at 799 (internal citations and quotation marks omitted). 

constitutional guarantees that should define the framework of any criminal trial.” Sorensen v. State, 2019 

WY 80, ¶ 17, 444 P.3d 1283, 1287 (Wyo. 2019) (citation omitted). The plain language of W.R.Cr.P. 

Rule 3(e) allows an amendment any time prior to a verdict as long as there is no violation of the 

defendant’s substantial rights. We have never held the amendment of an information prior to a verdict 

constitutes structural error. We decline to do so now.
14

[¶34] The probable cause affidavit accompanying Mr. LaJeunesse’s information stated 

C.L. told Ms. Tonkel the charged events “occurred after [her] family had moved back 

from Colorado” and were “living with C.L.’s grandparents.” The affidavit also stated the 

dates in the Information were based on the grandmother’s recollection of the time the 

family moved from Colorado. While the trial testimony of C.L.’s grandfather expanded 

the time frame, throughout the proceedings, Mr. LaJeunesse knew the relevant time 

period began with the family’s move to the Stanley Street apartment and continued until

C.L. was removed from the family. He did not offer any time-based defense prior to the 

amendment. Notice of the charges was sufficient as a matter of law. The district court 

did not abuse its discretion in allowing the State to amend the Felony Information without 

a continuance.

B. Confrontation Clause

[¶35] Mr. LaJeunesse now argues the amendment prevented him from effectively crossexamining C.L. and Ms. Tonkel on the amended time frame in violation of the

Confrontation Clause of the United States and Wyoming Constitutions. His objections at 

trial were not sufficient to raise Confrontation Clause concerns to the trial court. See

Villarreal v. State, 2017 WY 81, ¶ 10, 398 P.3d 512, 516 (Wyo. 2017) (objection 

insufficient to raise Confrontation Clause); Anderson v. State, 2014 WY 13, ¶ 20, 317 

P.3d 1108, 1115 (Wyo. 2014) (Confrontation Clause was not raised by “indistinct” 

objection). 

STANDARD OF REVIEW

[¶36] “When claims for violation of the Confrontation Clause are not raised below, our 

‘only avenue for review is under the doctrine of plain error.’” Villarreal, ¶ 10, 398 P.3d 

at 516 (quoting McClure v. State, 2010 WY 112, ¶ 7, 236 P.3d 1019, 1021 (Wyo. 2010));

see also Anderson, ¶ 20, 317 P.3d at 1115 (“[E]ven though the appellant claims

constitutional error, without an appropriate objection, we will review his claim under a 

plain error standard.”).

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.

Anderson, ¶ 20, 317 P.3d at 1115–16 (citing Zumberge v. State, 2010 WY 111, ¶ 4, 236 

P.3d 1028, 1030 (Wyo. 2010)).
15

DISCUSSION

[¶37] The record reflects the alleged error—the amendment of the Felony Information.

The Confrontation Clause is a clear and unequivocal rule of law. The first two 

requirements for plain error are met. However, the record is also clear that no 

transgression of the Confrontation Clause occurred and, as a result, we do not reach the 

fourth step in the analysis.

In order for there to be a violation of the right of 

confrontation, a defendant must show more than just a denial 

of the ability to ask specific questions of a particular witness.

Rather, a defendant must show that he was prohibited “from 

engaging in otherwise appropriate cross-examination 

designed to show a prototypical form of bias on the part of 

the witness . . . ‘to expose to the jury the facts from which 

jurors . . . could appropriately draw inferences relating to the 

reliability of the witness.’” Hannon [v. State, 2004 WY 8,]

¶ 18, 84 P.3d [320,] 330 [(Wyo. 2004)] (quoting Delaware v. 

Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431, 1436, 89 

L.Ed.2d 674 (1986)). The Confrontation Clause guarantees a

defendant an “opportunity for effective cross-examination, 

not cross-examination that is effective in whatever way, and 

to whatever extent, the defendant might wish.” Van Arsdall,

475 U.S. at 679, 106 S.Ct. at 1435 (quoting Delaware v. 

Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294, 88 L.Ed.2d 15 

(1985) (per curiam)). 

Downing v. State, 2011 WY 113, ¶ 11, 259 P.3d 365, 368–69 (Wyo. 2011) (quoting

Miller v. State, 2006 WY 17, ¶ 8, 127 P.3d 793, 796 (Wyo. 2006)). 

[¶38] C.L. and Ms. Tonkel were under subpoena requiring them to testify at trial. See

W.R.Cr.P. Rule 17.9

 Neither were released from their respective subpoenas after the 

9 Rule 17 provides in pertinent part:

(a) For attendance of witnesses; form; issuance.—Upon the filing of a 

precipe therefore, a subpoena shall be issued by the clerk under the seal 

of the court. It shall state the name of the court and the title, if any, of 

the proceeding, and shall command each person to whom it is directed to 

attend and give testimony at the time and place specified therein. . . .

. . .

(g) Contempt.—Failure by any person without adequate excuse to obey 

a subpoena served upon that person may be deemed a contempt of the 

court from which the subpoena issued.

W.R.Cr.P. Rule 17(a), (g).
16

State presented its case. Both remained available to testify had Mr. LaJeunesse called 

them. He did not do so. He was not denied an opportunity to confront these witnesses,

and the amendment to the Felony Information, without a continuance, had no effect on 

his defense. See Burton v. State, 2002 WY 71, ¶ 46, 46 P.3d 309, 321 (Wyo. 2002) (“The 

defense was not hindered in its ability to impeach the State’s witnesses, and Burton has 

not shown that he was substantially prejudiced by the amendment.”); Lindstrom v. State, 

2015 WY 28, ¶ 29, 343 P.3d 792, 799 (Wyo. 2015) (amendment of information had no 

effect on theory of defense).10 Mr. LaJeunesse fails to establish a violation of the 

Confrontation Clause. 

CONCLUSION

[¶39] The district court did not abuse its discretion in admitting evidence of other acts 

under W.R.E. Rule 404(b) or in allowing C.L.’s prior consistent statements under W.R.E. 

Rule 801(d)(1)(B). The amendment to the Felony Information, without a continuance,

did not deny Mr. LaJeunesse his right to effectively cross-examine the witnesses or 

prejudice his defense. Affirmed.

10 We are concerned, however, that the State did not seek the amendment to the Information until after it 

had presented its case. It is true W.R.Cr.P. Rule 3(e) does not place a duty on the State to amend an

information at the earliest opportunity, but we have admonished the State before that waiting to seek an 

amendment “does not comport with the principles of fairness essential to our judicial system and can only 

be attributed to carelessness.” Meek v. State, 2002 WY 1, ¶ 17, 37 P.3d 1279, 1285 (Wyo. 2002); see also

Beaugureau v. State, 2002 WY 160, ¶ 9, 56 P.3d 626, 630 (Wyo. 2002). Nonetheless, in the absence of

prejudice, we do not find error in the amendment of the Information.