IN THE SUPREME COURT, STATE OF WYOMING

2016 WY 108

 OCTOBER TERM, A.D. 2016

November 16, 2016

CLINT D. WATKINS,

Appellant

(Defendant),

v.

THE STATE OF WYOMING,

Appellee

(Plaintiff).

S-16-0060

Appeal from the District Court of Uinta County

The Honorable Joseph B. Bluemel, Judge

Representing Appellant:

Office of the State Public Defender: Diane M. Lozano, State Public Defender; 

Tina N. Olson, Chief Appellate Counsel; Patricia L. Bennett, Senior Assistant 

Appellate Counsel.

Representing Appellee:

Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; 

Christyne M. Martens, Senior Assistant Attorney General; Kellsie Jo Singleton, 

Assistant Attorney General.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, 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.
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BURKE, Chief Justice.

[¶1] Appellant, Clint D. Watkins, was convicted of two counts of first-degree sexual 

abuse of a minor. On appeal, he claims that prosecutorial misconduct deprived him of a 

fair trial. We conclude there was no misconduct, and affirm. 

ISSUE

[¶2] The sole issue presented by Appellant is whether the prosecutor committed 

prosecutorial misconduct during rebuttal argument, impermissibly invading the province 

of the jury.

FACTS

[¶3] Appellant was charged with two counts of sexual abuse of a minor in the first 

degree, in violation of Wyo. Stat. Ann. § 6-2-314(a)(ii) (LexisNexis 2013). The 

information alleged that, in the winter of 2013, Appellant twice inflicted sexual intrusion 

on his daughter, CW. At the time, CW was fourteen years old and living with Appellant, 

his wife, and their son.

[¶4] At the age of fifteen, CW left Appellant’s house to move in with her aunt and 

uncle, who later adopted her. Her aunt put CW into counseling because she was 

depressed and suffered from panic attacks. In February of 2015, a couple of days after

her first counseling session, CW reported to her aunt that she had been sexually abused

by Appellant. Her aunt reported the incidents to law enforcement officials, leading to the 

charges against Appellant.

[¶5] During opening statement, defense counsel laid out Appellant’s theory of the case. 

He asserted that the evidence would demonstrate a “difficult” relationship between CW 

and Appellant. CW did not like living with Appellant and his wife. In early 2014, CW 

had an opportunity to participate in a school trip to Costa Rica. Appellant could not 

afford to pay for the trip, but Appellant’s sister and her husband, CW’s aunt and uncle, 

were willing to pay CW for doing chores so that she could afford the trip. CW began 

spending more time with her aunt and uncle and, eventually, to relieve the “ongoing 

strife” between CW and Appellant, the aunt and uncle arranged for CW to live with them. 

Near the middle of 2014, Appellant relinquished his parental rights to CW, and the aunt 

and uncle adopted her. Following the adoption, Appellant decided not to allow CW to 

spend time with her little brother, which made her angry. Defense counsel concluded:

But there was one factor that [CW] was not counting 

on in finding herself living with [her aunt and uncle], in a 

more affluent situation, a situation where she wasn’t going to 

have to work to earn the money to go to Costa Rica. She 
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wasn’t going to have to comply with the rules that her father 

had been imposing on her. . . . [However, because] of the 

nature of this confrontation, [Appellant and his wife] decide 

that [her brother] shouldn’t be spending any time with [CW].

. . . But [CW] hadn’t counted on not seeing her little brother, 

someone that she dearly loves. . . . From that, we submit to 

you that she has made up a story that has brought all of us 

here today. My client, [Appellant], never sexually abused his 

daughter.

[¶6] On direct examination, CW provided detailed testimony concerning the two 

incidents. It is unnecessary to review those details in this opinion. We merely observe 

that, if the jury believed CW’s testimony, there was sufficient evidence to find Appellant 

guilty of the two charges.

[¶7] On cross-examination, defense counsel questioned CW about her anger toward 

Appellant and some of the reasons for it. CW agreed that she “had a hard time” living 

with Appellant. Appellant was “very demanding” and gave her chores that she did not 

like to do. While Appellant did not pay CW for doing her chores, her aunt and uncle did

and, eventually, they paid for her trip to Costa Rica. She testified that her aunt and uncle 

were wealthier than Appellant and his wife, and that living with them was comfortable 

and easier for her. She admitted that it was “very frustrating” when Appellant would not 

let her see her little brother, and that it felt like Appellant had “taken the most important 

person in the world away” from her. In response to defense counsel’s questioning, CW 

admitted that she “particularly hated” it when Appellant reminded her that her mother 

had committed suicide by overdosing on drugs.

[¶8] CW’s aunt corroborated CW’s testimony that she did chores at the aunt’s home. 

The aunt also confirmed that they had paid CW for doing some chores in order to help 

her pay for the school trip to Costa Rica. When asked about the life-style she and her 

husband lived, CW’s aunt described it as “average” and “pretty boring, really.”

[¶9] In closing argument, defense counsel reiterated the theme that CW lied about the 

sexual abuse because she was angry:

When one looks at the total sum of the facts and 

evidence in this case, what we see is a very, very angry girl. 

A girl who is angry at the world because her mother 

committed suicide; is angry at [Appellant] because he 

reminded her of that. . . . She was now having to live with 

[Appellant] in circumstances she didn’t like. She had to do 

chores. . . . And she fought with him relentlessly. And then 

she saw an opportunity to, perhaps, change her circumstances, 
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she did so. She pushed to go live at her aunt’s home; and she 

did that without appreciating the consequences. . . . And 

because she was angry, in February, 2015, when she was so 

frustrated for having not seen her little brother and so mad, 

she vented that anger by making an accusation that’s 

unfounded, that’s unsubstantiated, and that just does not make 

sense . . . . I submit to you, when you think about this in the 

light of human experience and the course of common sense 

and look at the facts in this case, you’re going to find this 

little girl is angry, vindictive, and lying.

[¶10] In rebuttal, the prosecutor responded to defense counsel’s argument:

[PROSECUTOR]: So as [defense counsel] identified, this 

truly is a situation where it’s a question of credibility. It 

comes down to one question: Do you believe [CW]? . . . 

If someone says during your deliberations, “[CW] wanted an 

extravagant life-style. This is all a story so she could live 

with a more affluent home,” then think about the testimony 

and respond in relation to issues that [CW’s aunt] identified. 

[She] identified a very moderate life-style. . . .

If someone says to you that [CW] wanted to avoid these 

chores, you heard her testify that in [Appellant’s] home, she 

was expected to sweep, vacuum, clean the bathrooms, clean 

her room, clean [her brother’s] room, do the laundry. She 

was expected to clean the entire house. And she didn’t 

necessarily always like that. But if that is the assertion, then I 

challenge you to state but didn’t she still do chores? You 

heard [the aunt’s] testimony. She still has to help around the 

house. She still has to clean. She still has to do those things. 

The only difference is now she gets recognized for it. She’s 

not working any less; she’s just better parented. . . .

Finally, if someone during deliberations says –

[DEFENSE COUNSEL]: I’m going to object, your Honor. 

She’s invading the province of the Jury by discussing to the 

Jury how they should deliberate, not arguing the facts.

THE COURT: Any response . . . ? 
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[PROSECUTOR]: Your Honor, closing arguments are 

argumentative. They certainly have the opportunity and 

knowledge. I am just going through the evidence to state how 

you can respond to inquiries and educate the Jury. 

THE COURT: The Court will overrule your objection. The 

thing that the Court understands is that the arguments are 

responses to arguments brought up by the Defense. Go ahead 

and complete your closing.

[PROSECUTOR]: Thank you, your Honor. Counsel.

Finally, if someone were to say she just wants to see [her 

brother], that’s why we’re here, how – how does this get her 

to see her brother? What logical sense, what common sense 

does that make, that this proceeding would make it so that 

that would happen, that that problem would go away? 

[¶11] After deliberation, the jury found Appellant guilty on both counts of sexual abuse 

of a minor in the first degree. He was sentenced to serve concurrent terms of fifteen to 

thirty-five years in prison. He filed this timely appeal.

DISCUSSION

[¶12] Appellant claims that the prosecutor’s argument quoted above constituted 

prosecutorial misconduct because it improperly invaded the province of the jury by 

“tell[ing] the jurors what to say to each other, what to think and how to deliberate.” 

Appellant asserts that the jury is the sole trier of fact. Accordingly, he contends, it was 

improper for the prosecutor to tell the jury how it should deliberate.

[¶13] At trial, defense counsel objected to the prosecutor’s rebuttal argument. The 

district court overruled the objection. We review the district court’s decision using this 

standard of review:

In reviewing a claim of prosecutorial 

misconduct in closing argument, the court looks at the 

entire record to determine whether the defendant’s 

case was so prejudiced by the improper comments as 

to result in the denial of a fair trial. Capshaw v. State, 

10 P.3d 560, 567 (Wyo. 2000); Metzger v. State, 4 

P.3d 901, 910 (Wyo. 2000). The challenged 

comments are judged in the context of the prosecutor’s 

entire argument, considering the context of the 
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statements and comparing them with the evidence 

produced at the trial. Helm v. State, 1 P.3d 635, 639 

(Wyo. 2000).

. . . When an objection is launched to a 

statement made in closing argument, we defer to the 

trial court’s ruling in the absence of a clear or patent 

abuse of discretion. Gayler v. State, 957 P.2d 855, 860 

(Wyo. 1998).

Budig v. State, 2010 WY 1, ¶ 15, 222 P.3d 148, 154 (Wyo. 2010) (quoting Harris v. 

State, 2008 WY 23, ¶ 14, 177 P.3d 1166, 1170 (Wyo. 2008)). Even where we find 

prosecutorial misconduct, “reversal is not warranted unless a reasonable probability 

exists, absent the error, that an appellant may have enjoyed a more favorable verdict.” 

Sullivan v. State, 2011 WY 46, ¶ 10, 247 P.3d 879, 881 (Wyo. 2011).

[¶14] We have long said that a prosecutor is afforded “[g]reat latitude” when arguing a 

case to the jury. Armstrong v. State, 826 P.2d 1106, 1115-16 (Wyo. 1992) (quoting State 

v. Kennedy, 162 W. Va. 244, 249 S.E.2d 188, 191 (W. Va. 1978)).

However, there are boundaries the prosecutor may not cross. 

In Trujillo v. State, 2002 WY 51, ¶ 5, 44 P.3d 22, 24-25 

(Wyo. 2002), we quoted from and approved of the ABA 

Standards for Criminal Justice regarding argument to the jury:

(a) The prosecutor may argue all reasonable inferences 

from evidence in the record. It is unprofessional 

conduct for the prosecutor intentionally to misstate the 

evidence or mislead the jury as to the inferences it may 

draw.

(b) It is unprofessional conduct for the prosecutor to 

express his or her personal belief or opinion as to the 

truth or falsity of any testimony or evidence [of] the 

guilt of the defendant.

(c) The prosecutor should not use arguments calculated 

to inflame the passions or prejudices of the jury.

(d) The prosecutor should refrain from argument 

which would divert the jury from its duty to decide the 

case on the evidence, by injecting issues broader than 

the guilt or innocence of the accused under the 
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controlling law, or by making predictions of the 

consequences of the jury’s verdict.

Carroll v. State, 2015 WY 87, ¶ 32, 352 P.3d 251, 259 (Wyo. 2015).

[¶15] Appellant does not contend that the prosecutor in this case violated any of these 

standards. Instead, he asserts that the prosecutor’s comments invaded the province of the 

jury by telling them “what to think.” However, the ABA Standards expressly provide 

that a prosecutor “may argue all reasonable inferences from evidence in the record.” 

When a prosecutor asserts reasonable inferences from the evidence, he or she is naturally 

suggesting a way for the jury to think about the evidence. We reject Appellant’s claims 

that the prosecutor’s argument improperly told the jury what to think.

[¶16] In one instance, (“But if that is the assertion, then I challenge you to state but 

didn’t she still do chores?”), the prosecutor did tell the jury what to say. When the 

argument is read in context, however, it is not properly interpreted as a literal instruction 

to the jury on what to say or how to behave in deliberation. It was a rhetorical device by 

which the prosecutor meant to suggest to the jury one reasonable interpretation of the 

evidence. As in Wilks v. State, 2002 WY 100, ¶ 32, 49 P.3d 975, 988 (Wyo. 2002), “[w]e 

conclude the prosecutor’s statements were merely rhetorical and not improper; therefore, 

they did not amount to error.” Appellant has failed to establish prosecutorial misconduct

and we find no error in the district court’s decision overruling Appellant’s objection to 

the prosecutor’s rebuttal argument.

[¶17] Affirmed.