IN THE SUPREME COURT, STATE OF WYOMING

2014 WY 66

APRIL TERM, A.D. 2014

May 28, 2014

WILLIAM LANE MCGARVEY,

Appellant

(Defendant),

v.

THE STATE OF WYOMING,

Appellee

(Plaintiff).

S-13-0124

Appeal from the District Court of Sweetwater County

The Honorable Nena James, Judge 

Representing Appellant:

Office of the State Public Defender: Diane Lozano, State Public Defender; Patricia 

L. Bennett, Assistant Appellate Counsel. Argument by Ms. Bennett.

Representing Appellee:

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

Attorney General; Darrell D. Jackson, Faculty Director, David E. Singleton, 

Student Director, and Eric B. Limegrover, Student Intern, of the Prosecution 

Assistance Program. Argument by Mr. Limegrover.

Before KITE, C.J., and HILL, BURKE, DAVIS, and FOX, 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

DAVIS, Justice.

[¶1] Appellant William McGarvey was convicted of first degree sexual assault for 

physically forcing a young woman to perform oral sex on him. On appeal, he alleges that 

his attorney was ineffective. We affirm.

ISSUE

[¶2] McGarvey asserts that his counsel’s performance was constitutionally ineffective 

in the three following respects:

1. Counsel sought to introduce evidence under Wyoming’s rape shield statute, 

Wyo. Stat. Ann. § 6-2-312 (LexisNexis 2013), without educating himself about the 

proper application of that statute and the meaning of DNA evidence gathered by the 

State.

2. Counsel failed to investigate how much alcohol had been served to McGarvey 

before an interview with law enforcement.

3. Counsel failed to object to the prosecutor’s misstatement of law during her 

rebuttal closing argument.

We must decide whether any of these claims are meritorious based on the record before 

us. 

FACTS1

[¶3] Two days after Christmas of 2010, TM and three of her female friends went 

drinking in Rock Springs. After spending a few hours at Bomber’s Sports Bar, two of the 

young ladies decided to go home and drove off in TM’s car. TM and her remaining 

friend SS left Bomber’s and went to the Astro Lounge. As closing time neared, TM and 

SS obtained a ride to SS’s home with Appellant McGarvey. They did not know him, but 

he had been at both bars and appeared to know some of the patrons the women knew, and 

he also told SS that he knew her mother. Once they arrived at SS’s apartment, TM asked 

McGarvey to drive her to Reliance, approximately five miles from Rock Springs, because 

she wanted to see a former boyfriend. He agreed. 

[¶4] McGarvey propositioned TM twice on the way to Reliance, asking her both times 

to give him “head,” meaning to perform fellatio on him. She refused. He then parked his 

car after reaching Reliance, exposed his penis, pulled her head into his lap by her hair, 

 

1

For efficiency and clarity, a number of isolated facts pertinent to McGarvey’s claims will be set out in 

the Discussion section below in relation to the specific issues to which they pertain.
2

punched her on the top of her head, and forced her to perform oral sex. After that, he 

managed to get TM’s clothes off, tearing her panties in the process, and despite her 

protests tried to have intercourse with her in the front passenger seat. Afterward he drove 

her through a mobile home park until she asked him to stop at a trailer where a friend of 

hers lived with his parents and sister. Naked and clutching her clothes, she knocked on 

the front door and called her friend’s name. 

[¶5] Her friend Joshua Bowles opened the door and encountered the sobbing, shaking, 

and visibly terrified TM, who immediately told him she had just been raped. Bowles 

called the Sweetwater County Sheriff’s office while his sister, Chantayne, helped TM 

dress. Because TM no longer had her panties, Ms. Bowles gave her a new pair, which 

was still in the package. She noted that TM appeared to have hair pulled out of her scalp. 

A deputy briefly interviewed TM and the Bowles at the trailer, after which TM was 

transported by ambulance to the Rock Springs hospital. There she again explained what 

had happened to a sheriff’s detective, and biological evidence was collected from her 

vagina and the panties given to her by Ms. Bowles. 

[¶6] By mid-morning of December 28, detectives had identified McGarvey as the man 

who had given TM and SS a ride, and they began looking for him at his home and several 

of his customary haunts. By early afternoon they discovered him standing beside his 

vehicle at Joe’s Liquor. The car had not been there when the detectives looked for it 

thirty minutes earlier. 

[¶7] McGarvey was asked if he would agree to an interview. He consented and 

followed the detectives to the sheriff’s office in his vehicle. During the interview, 

McGarvey admitted that he had engaged in sexual acts with TM in Reliance and that he 

had forced himself upon her. He consented to a search of his home and car and agreed to 

have biological evidence collected. He was not arrested at the time. 

[¶8] Two days after the interview, McGarvey was arrested and charged with two 

counts of first-degree sexual assault, one for forcing TM to perform oral sex on him, and 

one for forcing her to engage in intercourse. Wyo. Stat. Ann. § 6-2-302(a)(i).2 

 

2 That statute provides as follows:

(a) Any actor who inflicts sexual intrusion on a victim commits a sexual 

assault in the first degree if:

(i) The actor causes submission of the victim through the 

actual application, reasonably calculated to cause submission of the 

victim, of physical force or forcible confinement[.]

Wyo. Stat. Ann. § 6-2-302(a)(i) (LexisNexis 2013). The penalty for first degree sexual assault is not less 

than 5 nor more than 50 years incarceration and fines of up to $10,000. Wyo. Stat. Ann. § 6-2-306(a)(i) 

and 6-10-102 (LexisNexis 2013). 
3

McGarvey eventually entered into a plea agreement with the State and on May 12, 2011, 

pled guilty to the charge relating to the forced oral sex. He appealed to this Court from 

the judgment and sentence entered on that plea. While the appeal was pending, he moved 

the district court for leave to withdraw his plea. The district court granted his motion, 

McGarvey voluntarily dismissed his appeal, and a new attorney was assigned to represent 

him. 

[¶9] New counsel filed a motion to suppress the statements McGarvey made during his 

interview because he received no Miranda warnings until ten to eleven minutes into it. 

He also filed a motion supported by his affidavit, seeking permission to introduce certain 

evidence of TM’s sexual conduct under Wyo. Stat. Ann. § 6-2-312, the rape shield 

statute. He had gleaned from police and lab reports that SS saw TM sitting with a man in 

a car with her pants down to mid-thigh shortly after she arrived at the Astro. DNA from 

seminal fluid found inside TM was not identified as McGarvey’s, and he came to the 

conclusion that it came from some other man, although TM denied that she had had sex 

for four or five days prior to her encounter with McGarvey. Counsel contended this 

evidence suggested that TM might have had sex with someone other than McGarvey on 

the evening in question, thereby giving her a motive to lie about what had occurred in 

order to conceal consensual sexual conduct from her current boyfriend.

[¶10] Following a series of hearings, the district court granted McGarvey’s suppression 

motion with respect to the portion of his interview that preceded the administration of 

Miranda warnings. Although the court found the testimony of the sheriff’s deputies and 

detectives as to what occurred in the interview to be more consistent and credible than 

McGarvey’s, it concluded that he was in custody from the beginning of the interview, and 

should have been given those warnings. As for the proposed § 6-2-312 evidence, the 

court found that the motion and supporting affidavit did not establish that the proffered 

evidence required a hearing. The court concluded that the evidence had not been shown 

to be arguably relevant and that it would be improper to admit it.

3

 

[¶11] On October 26, 2012, a jury returned a verdict finding McGarvey guilty of forcing 

TM to give him oral sex, but acquitted him of forcibly having intercourse with her. The 

district court sentenced him to imprisonment for a term of fourteen to eighteen years, and 

he timely appealed from the court’s judgment and sentence. 

STANDARD OF REVIEW

[¶12] An appellant claiming that his attorney provided ineffective assistance must 

demonstrate from the record some deficiency in counsel’s performance that prejudiced 

him. Because examining both aspects of his proof raises mixed questions of law and fact, 

 

3 McGarvey does not challenge the district court’s findings, conclusions, or ultimate rulings on these 

points in this appeal.
4

we review such claims de novo. Moore v. State, 2013 WY 120, ¶ 13, 309 P.3d 1242, 

1245 (Wyo. 2013); Jenkins v. State, 2011 WY 141, ¶ 5, 262 P.3d 552, 555 (Wyo. 2011); 

Dettloft v. State, 2007 WY 29, ¶ 17, 152 P.3d 376, 382 (Wyo. 2007); Strickland v. 

Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984) (both 

components of ineffectiveness inquiry involve mixed questions of law and fact); United 

States v. Owens, 882 F.2d 1493, 1501 n.16 (10th Cir. 1989). 

DISCUSSION

[¶13] To prevail on his claims, McGarvey must prove that his counsel did not function 

as a reasonably competent attorney would have in some particular respect. There must be 

proof of deficient performance, and mere speculation or equivocal inferences will not 

suffice. Proof of defective performance must overcome the strong presumption that the 

attorney rendered adequate assistance and exercised reasonable professional judgment in 

making all significant decisions. Jenkins, ¶ 6, 262 P.3d at 555; Hirsch v. State, 2006 WY 

66, ¶ 15, 135 P.3d 586, 593 (Wyo. 2006); Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. 

[¶14] We do not evaluate counsel’s efforts in hindsight. Rather, we evaluate them in 

light of the surrounding circumstances from counsel’s perspective at the time of the 

challenged acts or omissions, and we determine whether the choices made could be 

considered sound trial strategy. Robison v. State, 2011 WY 4, ¶ 7, 246 P.3d 259, 263 

(Wyo. 2011); Sincock v. State, 2003 WY 115, ¶ 35, 76 P.3d 323, 336 (Wyo. 2003). 

Appellant must also prove that he was prejudiced by his attorney’s deficient performance, 

and must therefore demonstrate that, absent the alleged deficiency, it is reasonably 

probable that the result of his trial would have been more favorable to him. Jenkins, ¶ 6, 

262 P.3d at 555; Martinez v. State, 2006 WY 20, ¶ 23, 128 P.3d 652, 662-63 (Wyo. 

2006). 

[¶15] An appellant’s failure to make the required showing of either deficient 

performance or sufficient prejudice will defeat his ineffectiveness claim. Thus, we may 

reject such a claim solely on the ground that the record reveals an insufficient probability 

of prejudice. Moore, ¶ 14, 309 P.3d at 1245; Jenkins, ¶ 6, 262 P.3d at 555; Strickland, 

466 U.S. at 697, 104 S.Ct. at 2069.

The Motion to Allow Evidence Arguably Covered by the Rape Shield Law

[¶16] As already noted, McGarvey’s attorney filed a motion seeking leave to introduce 

evidence that SS saw TM in a car with a man with her pants down to mid-thigh hours 

before she left for Reliance with McGarvey, and that DNA from seminal fluid found 

inside TM was not McGarvey’s, even though TM claimed she had not had sex for four or 

five days prior to her encounter with him. Counsel argued that this evidence was relevant 

to prove that TM had sex with someone else before that encounter, and that she 

consequently had a motive to lie about McGarvey forcing her to have sex. The motive 
5

was evidently to attempt to conceal the fact that she had a consensual sexual encounter 

from her current boyfriend. McGarvey also claims that his attorney failed to adequately 

educate himself about the proper application of the rape shield statute and the meaning of 

DNA evidence gathered by the State. He argues that if counsel had provided effective 

assistance in this regard, the evidence would have been admitted, and he would probably 

have been acquitted of both charges. Therefore, he argues, he was prejudiced by his 

attorney’s less-than-effective representation.

[¶17] McGarvey’s attorney had to persuade the trial judge that the disputed evidence 

could properly be admitted under Wyoming’s rape shield statute, Wyo. Stat. Ann. § 6-2-

312. That statute requires a defendant who wishes to introduce evidence of the victim’s 

prior sexual conduct, or reputation or opinion evidence as to her character, to file a 

motion with the trial court no less than ten days prior to trial. He must make an offer of 

proof establishing the relevance and admissibility of that kind of evidence by affidavit. If 

the court finds that the offer of proof raises a sufficient question to warrant a hearing, it 

must conduct that hearing in chambers and determine whether the probative value of the 

evidence substantially outweighs the probability that it will be prejudicial. Wyo. Stat. 

Ann. § 6-2-312.4

 

4

§ 6-2-312 provides as follows:

(a) In any prosecution under this article [the sexual assault statute] or for 

any lesser included offense, if evidence of the prior sexual conduct of the 

victim, reputation evidence or opinion evidence as to the character of the 

victim is to be offered the following procedure shall be used:

(i) A written motion shall be made by the defendant to the court 

at least ten (10) days prior to the trial stating that the defense has an offer 

of proof of the relevancy of evidence of the sexual conduct of the victim 

and its relevancy to the defense;

(ii) The written motion shall be accompanied by affidavits in 

which the offer of proof is stated;

(iii) If the court finds the offer of proof sufficient, the court shall 

order a hearing in chambers, and at the hearing allow the questioning of 

the victim regarding the offer of proof made by the defendant and other 

pertinent evidence;

(iv) At the conclusion of the hearing, if the court finds that the 

probative value of the evidence substantially outweighs the probability 

that its admission will create prejudice, the evidence shall be admissible 

pursuant to this section. The court may make an order stating what 

evidence may be introduced by the defendant, which order may include 

the nature of the questions to be permitted.

(b) This section does not limit the introduction of evidence as to prior 

sexual conduct of the victim with the actor.

(c) Any motion or affidavit submitted pursuant to this section is 

privileged information and shall not be released or made available for 

public use or scrutiny in any manner, including posttrial proceedings.
6

[¶18] Although the text of the statute does not expressly identify whom it is intended to 

protect, this Court answered that question nearly twenty-four years ago.

Wyoming, along with most other jurisdictions, enacted 

a “rape-shield” statute to bring under control a long-standing 

tradition that rape victims could be discredited as witnesses 

based on prior sexual conduct. This tradition was based on 

the faulty notion that women who engaged in nonmarital 

intercourse were immoral and likely to engage in such 

conduct on any given occasion, and was deemed prejudicial 

and humiliating to the victim.

Stogner v. State, 792 P.2d 1358, 1362 (Wyo. 1990) (citation omitted). We noted that the 

sort of evidence to which the statute relates is “generally not admissible” in Wyoming. 

Id. That is, only in the unusual case will the probative value of this kind of evidence 

substantially outweigh its highly probable prejudicial effect on the victim and the public 

policy underlying the statute’s enactment. It is against this yardstick that we measure 

McGarvey’s ineffectiveness claim.

[¶19] When counsel filed his motion on August 29, 2012, he had been representing 

McGarvey for just over a month, was facing a trial set for September 17, 2012, and was 

awaiting a hearing on his motion to suppress. As noted above, with the ten-day time limit 

of § 6-2-312 fast approaching, he possessed very little information relating to TM’s 

sexual history before she met his client other than what could be found in police reports.

[¶20] McGarvey asserts that counsel’s misunderstanding of § 6-2-312 led him to argue 

that the proffered evidence was relevant to TM’s credibility, and that he should instead 

have argued it was relevant to the issue of consent. We see little distinction between the 

two. Counsel in effect argued that TM had a motive to lie about consenting to 

performing sex acts with McGarvey because she may have consensually engaged in some 

sort of sexual conduct with another man earlier that night. This in turn was evidently to 

try to show that she had consensual oral sex and intercourse with McGarvey because she 

had consensual sex with someone else. 

[¶21] That is precisely the kind of evidence and argument the rape shield statute was 

intended to prevent, and counsel’s efforts to avoid saying so outright suggest that he 

understood the reach of that statute and devised an ultimately unsuccessful strategy to try 

to introduce evidence it clearly prohibited. In short, McGarvey has not shown that 

counsel’s understanding and performance fell short of what the constitution required of 

him, but instead that he lost an uphill battle to admit evidence that he should not have 

 

Wyo. Stat. Ann. § 6-2-312 (LexisNexis 2013). 
7

been allowed to present to the jury. Because we do not find counsel’s performance 

ineffective in this respect, we need not engage in the second prong of the Strickland

analysis. 

[¶22] Counsel’s alleged misunderstanding of the DNA evidence also provides an 

inadequate basis for an ineffective assistance claim. A forensic biologist at the State 

Crime Lab separated the samples taken from McGarvey’s penis, TM’s panties, and TM’s 

vagina into “sperm” and “non-sperm fractions” by a process she called differential 

extraction. She testified that the sperm fraction contains DNA from seminal fluid only if 

sperm are present in the fluid. The non-sperm fraction may contain DNA from seminal 

fluid even if no sperm are present in the fluid. 

[¶23] The sperm fraction of the sample taken from McGarvey’s penis yielded no 

detectable level of DNA because few or no sperm cells were present. The non-sperm 

fraction contained some of his DNA and a substantial amount of TM’s DNA from a 

bodily fluid of some type. The sperm fraction from TM’s panties revealed the presence 

of seminal fluid, but the amount of DNA recovered was too small to allow it to be 

attributed to any particular person. What little could be tested was inconsistent with 

McGarvey’s DNA. The non-sperm fraction contained a mixture of his and TM’s DNA. 

The vaginal swab’s sperm fraction yielded a sample too small for testing, and its nonsperm fraction contained mostly TM’s DNA. However, it also indicated the presence of 

male DNA which could not be linked to McGarvey due to the small sample size. 

[¶24] Although the lab report was not made part of the record on appeal, it appears that 

counsel’s misunderstanding of it derived from its reference to sperm and non-sperm 

fractions and its exclusion of McGarvey as a contributor of sperm cells in samples taken 

from TM and her clothes. He evidently believed that a sperm fraction referred to the 

recovery of a testable amount of sperm cells and, accordingly, that the failure to identify 

McGarvey as the source of those cells indicated that someone else had recently had sex 

with TM. When that reading of the lab report became an issue during pretrial 

proceedings, the forensic biologist who wrote the report conceded that it could be read 

that way, but clarified that her tests identified no “third donor” to the samples collected 

and tested due to the sample size. Counsel’s subsequent conversations with her resolved

the ambiguity prior to trial. 

[¶25] Even if one could say that a reasonably competent attorney would have obtained 

this information earlier, McGarvey cannot show that his attorney’s performance 

prejudiced him. Had counsel known the true meaning of the lab report, he would have 

had even less support for the rape shield motion, because the DNA evidence did not 

support his claim that TM had engaged in sexual intercourse with someone else that 

evening. 
8

[¶26] Although enlightenment as to the meaning of the DNA evidence came later than 

McGarvey argues it should have, the knowledge was put to good use at trial as counsel 

emphasized the lab’s inability to identify any DNA from McGarvey in the samples taken 

from TM’s vaginal area. He was acquitted of the count charging him with forced 

intercourse, which strongly suggests that his counsel made good and workmanlike use of 

the DNA evidence. McGarvey has failed to show that his trial attorney was 

constitutionally ineffective in regard to the rape shield evidence motion or the use of 

DNA evidence. 

Intoxication During Law Enforcement Interview

[¶27] McGarvey claims that his attorney was ineffective in failing to investigate and put 

on evidence at the suppression hearings of his “probable level of intoxication” during his 

interview with detectives. He asserts that if counsel had done so, he could have shown 

that his statements to the detectives that he forced TM to have sex with him were 

involuntary and would therefore have been suppressed.5 He argues only that the record 

contains no indication that counsel tried to contact the bartender at Joe’s Liquor, where 

officers found him approximately eleven to twelve hours after he was accused of 

assaulting TM. This hardly suffices to carry his burden of showing counsel’s 

representation was defective.

[¶28] The detective assigned to find McGarvey located his vehicle at Joe’s Liquor 

between 1:30 and 2:00 in the afternoon. It had not been there thirty minutes earlier. 

McGarvey went there to help the owner—his friend, Angela Gaensslen—because she 

could do no heavy lifting due to a health condition, and they went to lunch about 11:30 

that morning. With that information, along with McGarvey’s claim that he had six drinks 

the night before at Bomber’s and the Astro, counsel would have had little reason to 

expect that his client was intoxicated when the detectives spoke to him. Moreover, 

although McGarvey claimed he was under the influence to the extent he should not have 

been driving, counsel was presumably aware that the detectives and deputies who had 

close contact with him that day would testify that he showed no signs of intoxication, or

he would not have been allowed to drive to the sheriff’s office for his interview. 

[¶29] It is also important to note that while McGarvey claims that there is no evidence 

that his attorney spoke to the bartender, Ms. Gaensslen, he fails to mention that before the 

second suppression hearing, his attorney subpoenaed her for the trial that was then set to 

begin in less than two weeks. The record also reflects that McGarvey’s interview with 

 

5 Confessions which are involuntary are suppressed even if Miranda warnings are given, and they may not 

be used for impeachment in cross-examination if the defendant testifies. United States v. Patane, 542 U.S 

630, 639, 124 S.Ct. 2620, 2627, 159 L.Ed.2d 667 (2004); Oregon v. Elstad, 470 U.S. 298, 305-07, 105 

S.Ct. 1285, 1291-92, 84 L.Ed.2d 222 (1985); Mincey v. Arizona, 437 U.S. 385, 398, 98 S.Ct 2408, 2416, 

57 L.Ed.2d 290 (1978); Lewis v. State, 2002 WY 92, ¶¶ 17-18, 48 P.3d 1063, 1068 (Wyo. 2002); 1 

McCormick On Evidence § 162 (7th ed. updated 2013).
9

the detective was recorded, and that it was available to trial counsel before the 

suppression hearings. One would expect the recording to reveal signs of intoxication 

such as slurring of words, lack of comprehension, etc., if McGarvey was in fact under the 

influence of alcohol to the extent necessary to render his statements involuntary. 

Unfortunately, the recording was not designated as part of the record to be transmitted to 

us for purposes of this appeal, and we cannot therefore review it. 

[¶30] Strained speculation weakened by what appear to be material omissions from the 

record will not suffice to show that trial counsel’s representation fell below that which 

would have been rendered by a reasonably competent attorney. McGarvey has therefore 

not shown that his attorney was ineffective in this respect.

The Prosecutor’s Closing Argument

[¶31] McGarvey’s final ineffective assistance claim is that counsel failed to object to a 

misstatement of law by the prosecutor in her rebuttal closing argument. We perceive the 

argument she made differently than he does.

[¶32] The prosecutor began her rebuttal by reminding the jury that the case was not 

about what either attorney believed the facts to be, but about what the jury found them to 

be after considering the witness testimony, recordings, photos, and scientific testing on 

physical evidence. She argued the significance of the DNA evidence, the clumps of hair 

pulled from TM’s scalp, and testimony about a distraught TM appearing naked at the 

Bowles home and saying immediately that she had been raped. She spoke of 

McGarvey’s admission to the detective that he forced TM to have sex and his efforts to 

explain away that admission at trial. She reminded the jury that TM’s panties were torn 

off in the encounter. 

[¶33] She then uttered these words, which McGarvey claims are improper argument:

Mr. McGarvey claims this is consensual, he is 

confused because [TM] is moaning. [TM] is confused. He 

believes this is consensual. Well, that doesn’t matter either. 

It doesn’t matter if McGarvey is confused. It doesn’t matter 

if he thinks maybe it’s consensual. If there is a forcible rape 

going on and somebody has their underwear ripped off and 

then they are having sex with her after her hair is ripped out, 

then he thinks it’s consensual because that’s what he believes, 

that is not how this works.

After that, the prosecutor contrasted McGarvey’s trial testimony as to why he believed 

the sex with TM was consensual with his statement to the detective investigating the 

alleged crime the day after it occurred. In his statement, he said he forced TM’s head 
10

down, pulling her hair and telling her repeatedly to “suck it.” He also lamented forcing 

himself upon her. As the prosecutor put it, “This is what he believed on the 28th [] day of 

December 2010[.]” 

[¶34] Reviewing the contested passage in context, as trial counsel and the jury heard it, 

we do not find the argument to be a comment on the law the jury had to apply. It was a 

comment upon the evidence, i.e., that McGarvey’s current belief that the sexual contact 

he had with TM was consensual doesn’t matter as much as his statements shortly after the 

offense and the physical evidence that he used force to compel TM to perform fellatio. 

Accordingly, a reasonably competent attorney was not required to object under the 

circumstances. 

CONCLUSION

[¶35] Appellant McGarvey has not carried his burden of establishing from the record 

that his trial attorney was ineffective. Therefore, we affirm his conviction and sentence.