IN THE SUPREME COURT, STATE OF WYOMING

2019 WY 129

OCTOBER TERM, A.D. 2019

December 20, 2019

CHRISTOPHER MARK NESIUS,

Appellant

(Defendant),

v.

THE STATE OF WYOMING,

Appellee

(Plaintiff).

S-19-0069

Appeal from the District Court of Crook County

The Honorable Thomas W. Rumpke, Judge

Representing Appellant:

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

Morgan, Chief Appellate Counsel; Desiree Wilson, Senior Assistant Appellate 

Counsel. Argument by Ms. Wilson.

Representing Appellee:

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

General; Christyne M. Martens, Senior Assistant Attorney General; Darrell D. 

Jackson, Faculty Director, Prosecution Assistance Program; Mackenzie Morrison, 

Student Director. Argument by Ms. Morrison.

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

BOOMGAARDEN, Justice.

[¶1] A jury convicted Christopher Mark Nesius of two felonies and three misdemeanors

after he led law enforcement officers on a high-speed pursuit that ended when he struck 

and seriously injured a motorcyclist on I-90 near Sundance, Wyoming. On appeal, Mr. 

Nesius challenges the sufficiency of the evidence to support his conviction for driving 

under the influence (DUI) causing serious bodily injury under Wyoming Statute § 31-5-

233(b)(iii)(B). He argues that his sentence for fleeing or attempting to elude police officers

under Wyoming Statute § 31-5-225(a) is illegal because it exceeds the statutory maximum. 

And he contends that the district court’s written sentence failed to conform to its oral 

pronouncement with respect to credit for time served. We affirm Mr. Nesius’ conviction

for DUI causing serious bodily injury, but remand for issuance of a corrected sentencing 

order.

ISSUES

[¶2] Mr. Nesius raises two issues on appeal, which we rephrase:

I. Was the evidence sufficient for the jury to convict Mr. Nesius of

DUI causing serious bodily injury under Wyoming Statute § 31-

5-233(b)(iii)(B)?

II. Is Mr. Nesius’ 211-day sentence on Count V, fleeing or 

attempting to elude police officers under Wyoming Statute § 31-

5-225(a), illegal because it exceeds the statutory maximum, and 

did the district court’s written sentence fail to conform to its oral 

pronouncement with respect to credit for time served?

FACTS

[¶3] Given the issues on appeal, we address the facts in the context of the trial 

proceedings. On July 10, 2017, the State charged Mr. Nesius with six crimes: aggravated 

assault and battery (Count I); DUI causing serious bodily injury, second offense (Count 

II); reckless endangering (Count III); interference with a peace officer (Count IV); fleeing 

or attempting to elude police officers (Count V); and driving with a cancelled, suspended, 

or revoked license, second offense (Count VI). 

[¶4] In October 2018, the district court held a two-day trial on these charges. The State 

presented the testimony of the law enforcement officers who were involved in the pursuit, 

a paramedic, two scientific witnesses, and the motorcyclist. The State’s first witness,

Wyoming State Park Ranger Brad Purcell, outlined how the incident began at Keyhole 

State Park on July 8, 2017. The driver of a maroon Ford truck, later identified as Mr. 
2

Nesius, passed Ranger Purcell at a high rate of speed. Ranger Purcell determined that Mr. 

Nesius was driving 63 miles per hour in a 30-mile-an-hour zone. He activated the

emergency lights on his vehicle and pursued the truck. Ranger Purcell observed Mr. Nesius 

drive “really close to the fee booth” and then proceed to McKean Road. Mr. Nesiusstopped 

at the intersection of Pine Ridge Road due to cross-traffic and Ranger Purcell exited his 

vehicle to conduct a traffic stop, at which time Mr. Nesius spontaneously put both of his 

hands out of the truck window. As Ranger Purcell approached, Mr. Nesius’ hands 

disappeared back into the truck and he sped off, leaving a “rooster tail full of gravel and 

dust” in his wake. 

[¶5] Ranger Purcell returned to his vehicle and pursued Mr. Nesius south on Pine Ridge 

Road, where he observed Mr. Nesius cross a cattle guard at a high rate of speed and 

temporarily lose back-end traction before proceeding to another intersection where—in a 

now familiar ruse—Mr. Nesius stopped his truck in the middle of the road and

spontaneously put his hands out the window. As Ranger Purcell began to open his door, 

Mr. Nesius sped off again. Mr. Nesius proceeded onto I-90 east towards Sundance, and

additional officers joined the pursuit. 

[¶6] Wyoming Highway Patrol Trooper Jared Williams, Crook County Sheriff Jeff 

Hodge, and Crook County Sheriff’s Deputy Jason Robinson each testified about their 

involvement in the highway pursuit. Their testimony reflected that Mr. Nesius did not 

maintain a single lane. Sheriff Hodge testified that Mr. Nesius “cross[ed] over the fog line”

numerous times, “cross[ed] over the centerline,” drove “a little ways down through the 

centerline,” and “passed a vehicle on the right shoulder of the road.” Mr. Nesius was 

“pretty consistent, . . . just swerving over the centerline, fog line.” Trooper Williams added

that Mr. Nesius did not fail to maintain a lane just once, he did so “for a few miles.” The

officers also testified that Mr. Nesius did not maintain one speed on the highway. Sheriff 

Hodge stated that Mr. Nesius drove “73, 74, 100, 103, back down to 80-some miles an 

hour,” and characterized his speed as “pretty sporadic.” Deputy Robinson noted that Mr. 

Nesius’ “vehicle speeds fluctuated from in the low 70s to in excess of a hundred miles an 

hour.” 

[¶7] The State’s evidence reflected that officers unsuccessfully attempted to stop Mr. 

Nesius with spike strips. The pursuit continued until Mr. Nesius clipped the back end of a

motorcycle with the front of his truck, causing both his truck and the motorcycle to lose 

control and leave the highway. It appeared to Sheriff Hodge that Mr. Nesius “was trying 

to pass the motorcycle and just was not able to successfully negotiate that pass.” While 

some officers attended to the motorcyclist and called for emergency assistance, Trooper 

Williams and Sheriff Hodge approached the truck to arrest Mr. Nesius. 

[¶8] When Trooper Williams and Sheriff Hodge initially contacted Mr. Nesius, he asked 

them questions such as “[W]hat happened?” “Am I dead?” and “Am I alive?” On crossexamination about those questions, Sheriff Hodge agreed with defense counsel that he had 
3

observed accidents before and those were “fairly standard kind of questions people ask 

when you pull them out of a car.” They were not unusual. When asked whether those 

were questions “that someone would ask who’s aware of their surroundings,” Sheriff 

Hodge responded, “[s]omewhat, or unaware of their surroundings.” When asked to 

“modify” his answer, Sheriff Hodge clarified his testimony: “I mean, if you’re asking for 

my judgment on what I’ve seen in the past, then I have dealt with people who have be[en] 

under highly influence of drugs that thought they were dead. Normally -- on a normal 

basis, normal person is not going to ask you if they’re dead.” 

[¶9] Mr. Nesius refused to exit his truck when officers ordered him to do so. As a result, 

Sheriff Hodge and Trooper Williams had to “drag him out . . . and wrestle with him on the 

ground” to handcuff him. Sheriff Hodge characterized Mr. Nesius as being “[a]bnormally 

strong.” Trooper Williams added that Mr. Nesius pulled away from them, screamed, and 

fought with them while they tried to gain control of his hands. After they handcuffed him, 

Mr. Nesius refused to provide his name. Consequently, Trooper Williams searched Mr. 

Nesius’ truck for identification and found a glass pipe in the overhead console. A 

paramedic collected Mr. Nesius’ blood at the scene. 

[¶10] A forensic chemist from the Wyoming State Crime Laboratory testified that she 

identified the presence of methamphetamine on the glass pipe. Michael Cornell, a forensic 

toxicologist for the chemical testing program at the Wyoming Department of Health, 

testified that Mr. Nesius’ blood test results confirmed “the presence of amphetamine at 

14.7 nanograms per milliliter [of blood], and . . . methamphetamine at 75.2 nanograms per 

milliliter.” He also testified about general matters related to methamphetamine use. He 

thus explained that the effects of methamphetamine “usually last four to eight hours but 

sometimes up to 12 hours,” depending on the dose. He informed the jury that 

methamphetamine typically results in “a feeling of euphoria and excitation, [and] increased

. . . heart rate, blood pressure[.]” He explained that it results in “a high feeling”—

“sometimes you’ll have a feeling of not necessarily invincibility but just, you know, a 

strong, like, personality and potentially even almost to the point of aggressiveness just to 

where you feel like you can take on the world.” He relayed that methamphetamine can 

typically be detected in the blood “anywhere from short duration, you know, immediately 

if it might -- in IV type of use, typically, to 24 to 48 hours.” 

[¶11] At the close of evidence, the district court granted Mr. Nesius’ motion for judgment 

of acquittal on Count VI, driving with a cancelled, suspended, or revoked license. The jury 

convicted him of the remaining five counts. 

[¶12] At sentencing, the district court determined that Mr. Nesius was entitled to 211 days 

of credit for time served and then sentenced him to concurrent sentences of 211 days, with 

credit for time served, on each misdemeanor. Turning to the felony counts, the court

sentenced him to five to eight years on Count I. Addressing Count II and the relationship 

between the various counts and credit for time served, the court stated:
4

As to the sentence for the DUI with serious bodily injury, the 

sentence will be not less than 12 nor more than 15 years to run 

consecutive to the aggravated assault. The two felony charges 

are going to run concurrent to the misdemeanors. So there will 

be credit for 211 days.

The district court’s subsequent written sentencing order did not mention credit for time 

served on either felony. Mr. Nesius timely appealed. 

DISCUSSION

I. The evidence was sufficient for the jury to convict Mr. Nesius of DUI causing 

serious bodily injury.

[¶13] We apply our familiar sufficiency of the evidence standard of review to Mr. Nesius’ 

challenge to his conviction.

When we review a criminal conviction for sufficiency of the

evidence, we view the facts in the light most favorable to the 

State. Downs v. State, 581 P.2d 610, 614 (Wyo. 1978). We 

leave out any conflicting evidence of the defendant, and draw 

every reasonable inference in the State’s favor. Id. The 

question we must answer is whether a reasonable and rational 

jury could have convicted the defendant of the crime based 

upon the evidence that was presented at trial. Horn v. State, 

554 P.2d 1141, 1145 (Wyo. 1976).

Hopkins v. State, 2019 WY 77, ¶ 14, 445 P.3d 582, 587 (Wyo. 2019) (quoting Guy v. State, 

2008 WY 56, ¶ 37, 184 P.3d 687, 698 (Wyo. 2008)). 

[¶14] The district court instructed the jury that to find Mr. Nesius guilty of DUI causing 

serious bodily injury, the State had to prove the following elements beyond a reasonable 

doubt:

1. On or about the 8th day of July, 2017;

2. In Crook County, Wyoming; 

3. The Defendant, Christopher Nesius; 

4. Drove a vehicle; 

5. While under the influence of a controlled substance;1

1 The court instructed the jury that a “controlled substance” is “a drug, substance, or immediate precursor 

in Schedules I through V of Article III of the Wyoming Controlled Substances Act of 1971.” It further 
5

6. To a degree which rendered defendant incapable of driving 

safely;

7. As a result of such driving, caused serious bodily injury to 

another person. 

Mr. Nesius challenges the sufficiency of the evidence to support the fifth and sixth 

elements. We limit our analysis accordingly. 

A. While under the influence of a controlled substance

[¶15] As the preceding jury instruction suggests, “there is no prescribed concentration in 

the system with respect to controlled substances, nor is there any presumption attaching to 

specified quantities.” Buckles v. State, 830 P.2d 702, 706 (Wyo. 1992). As a result, “[t]he 

sole question is whether the person is incapable of driving safely because he is under the 

influence of a controlled substance.” Id. 

[¶16] The State presented ample evidence from which the jury could reasonably infer that 

Mr. Nesius drove a vehicle while under the influence of a controlled substance. Mr. 

Nesius’ blood tested positive for methamphetamine. Trooper Williams found a pipe in Mr. 

Nesius’ truck which tested positive for the presence of methamphetamine residue. Viewing 

Sheriff Hodge’s testimony in the light most favorable to the State, Hopkins, ¶ 14, 445 P.3d 

at 587, the jury could reasonably conclude that Mr. Nesius asked officers “Am I dead?” 

because he was under the influence of drugs, not because he had just been in a car accident. 

Finally, the jury could compare Mr. Cornell’s testimony about the typical effects of 

methamphetamine with Mr. Nesius’ behavior. From that comparison, it could reasonably 

conclude that he was under the influence because he exhibited “aggressiveness” and a “take 

on the world” attitude in his interactions with law enforcement officers. Contrary to Mr. 

Nesius’ assertion, the State did not have to present testimony from a drug recognition 

expert to confirm that he exhibited indicia of being under the influence. The jury could 

draw that inference on its own.

B. To a degree which rendered defendant incapable of driving safely

[¶17] “Proof of unsafe driving . . . is competent evidence to be considered with all of the 

other evidence in determining whether the driver is under the influence of intoxicating 

liquor to a degree that he is incapable of safely driving.” Nowack v. State, 774 P.2d 561, 

570 n.13 (Wyo. 1989). We see no reason to distinguish cases involving controlled 

substances when considering evidence of unsafe driving.

instructed the jury that “‘Methamphetamine’ is a controlled substance listed in Schedule II of the Wyoming 

Controlled Substances Act of 1971.” 
6

[¶18] The State presented sufficient evidence from which the jury could reasonably infer 

not only that Mr. Nesius was under the influence of methamphetamine, but also that he was 

under the influence of that controlled substance to a degree which rendered him incapable 

of driving safely. From Mr. Nesius’ unsafe driving, the jury could reasonably infer that his 

reaction times, and his ability to appropriately gauge speed and distance, were

compromised by methamphetamine. Mr. Nesius did not just drive more than double the 

speed limit through Keyhole State Park, he almost struck a fee booth as he passed it. On 

the highway, he consistently failed to maintain a lane and drove far in excess of the speed. 

Mr. Nesius failed to negotiate a pass around a motorcycle, clipping the back of it with the 

front of his truck. When the evidence is viewed as a whole and in the light most favorable 

to the State, we have little trouble concluding that the evidence was sufficient for the jury 

to draw the necessary connection between Mr. Nesius’ intoxication and driving capability. 

Contrary to Mr. Nesius’ assertion, the State did not have to present an expert to confirm 

that 75.2 nanograms of methamphetamine per milliliter of blood is a sufficient 

concentration to affect a person’s mental or physical processes, behavior, motor function, 

or emotions. And the whole of the State’s evidence did more than, as Mr. Nesius suggests,

simply show that he had methamphetamine and methamphetamine metabolites in his 

system at the time of the crash and that methamphetamine, in general, causes euphoria, 

excitation, increased heart rate and blood pressure, a feeling of invincibility, and 

aggressiveness. 

II. Mr. Nesius’ sentence for fleeing or attempting to elude police officers is illegal, 

and the district court’s written sentence failed to clearly conform to its oral 

pronouncement and the law with respect to credit for time served.

[¶19] Applying a de novo standard of review, Candelario v. State, 2016 WY 75, ¶ 5, 375 

P.3d 1117, 1118 (Wyo. 2016), we agree with the parties that Mr. Nesius’ sentence for 

fleeing or attempting to elude police officers under Wyoming Statute § 31-5-225(a) (Count 

V) is illegal because it exceeds the statutory maximum. We further conclude that the 

district court’s written sentence failed to conform to its oral pronouncement with respect 

to credit for time served. Mr. Nesius is entitled to 211 days of credit for time served on 

felony Count I, but not felony Count II. He should nevertheless receive credit for time 

served on Count II if the district court in its discretion intended to grant him such credit at

the time of sentencing.

A. Sentence for fleeing or attempting to elude police officers

[¶20] A sentence that exceeds the statutory maximum is illegal. Gould v. State, 2006 WY 

157, ¶ 9, 151 P.3d 261, 265 (Wyo. 2006). The applicable statute determines the statutory 

maximum. See Brown v. State, 2004 WY 119, ¶ 7, 99 P.3d 489, 491 (Wyo. 2004). The 

statutory maximum for fleeing or attempting to elude police officers is “a fine of not more 

than seven hundred fifty dollars ($750.00), . . . imprisonment for not more than six (6) 

months, or both.” Wyo. Stat. Ann. § 31-5-225(b) (LexisNexis 2019). Mr. Nesius’ 211-
7

day sentence on Count V clearly exceeds the statutory maximum of six months by, at most,

31 days, and is therefore illegal. Gould, ¶ 9, 151 P.3d at 265.

[¶21] “When a district court exceeds its sentencing authority and the sentence is 

divisible,” we may remand for resentencing or simply mandate that the illegal portion be 

stricken. Smith v. State, 2012 WY 130, ¶ 16, 286 P.3d 429, 434 (Wyo. 2012) (quoting 

Crosby v. State, 2011 WY 44, ¶ 8, 247 P.3d 876, 878 (Wyo. 2011)). We generally remand 

for resentencing where it seems likely that the “court may have imposed a different 

sentence had it known that part of the sentence was illegal,” and we strike the illegal portion 

of a sentence when it seems unlikely “that the legal part of the sentence would change.” 

Id. (citations omitted). We are convinced that if the district court had known that Mr. 

Nesius’ 211-day sentence on Count V was illegal, it would have sentenced him to the 

maximum term of six monthsfor that offense. We therefore mandate that the illegal portion 

of Mr. Nesius’ sentence be stricken and that he be sentenced to six months on Count V, 

with credit for time served. 

B. Credit for time served

[¶22] This appeal implicates various rules related to credit for time served and sentencing

orders. “A defendant is entitled to credit for the defendant’s ‘time spent in presentence 

confinement, against both the minimum and maximum sentence, if the defendant was 

unable to post bond for the offense of which he was convicted.’” Mitchell v. State, 2018 

WY 110, ¶ 33, 426 P.3d 830, 839 (Wyo. 2018) (quoting Rosalez v. State, 955 P.2d 899, 

900 (Wyo. 1998) (citations omitted)). The written sentence must “[s]tate the extent to 

which credit for presentence confinement is to be given for each sentenced offense” and 

be consistent with the oral pronouncement of sentence. W.R.Cr.P. 32(c)(2)(F) (LexisNexis 

2019); Palomo v. State, 2018 WY 42, ¶ 26, 415 P.3d 700, 706 (Wyo. 2018). An 

unambiguous oral sentence prevails over a contrary provision found in a written sentence. 

See Washington v. State, 2019 WY 22, ¶ 3, 435 P.3d 366, 367 (Wyo. 2019); see also Britton 

v. State, 2009 WY 91, ¶ 24, 211 P.3d 514, 519 (Wyo. 2009).

[¶23] When the district court pronounced Mr. Nesius’ sentence at the hearing, it 

unambiguously stated that he was entitled to 211 days of credit for time served. Seizing 

on the district court’s statement at the hearing that “[t]he two felony charges are going to 

run concurrent to the misdemeanors,” Mr. Nesius argues that this case involves a 

straightforward application of a rule we pronounced in Scott v. State: “credit for time served 

is applied against all concurrent sentences imposed in a single prosecution.” 2012 WY 86, 

¶ 19, 278 P.3d 747, 753 (Wyo. 2012) (citing Weedman v. State, 792 P.2d 1388, 1389 (Wyo.

1990)). This case is not so straightforward, however, because it involves a combination of 

concurrent and consecutive sentences. Scott did not squarely address application of credit 

for time served in these circumstances. See id. ¶¶ 18–19, 278 P.3d at 753 (rejecting Mr. 

Scott’s argument that his sentence was illegal because it was “not possible for him to serve 

six month misdemeanor sentences concurrently with three consecutive felony sentences”). 
8

We must also consider how credit for time served applies to Mr. Nesius’ consecutive felony 

sentences.

[¶24] In Palmer v. State, we held “that when consecutive sentences are ordered, the proper 

allocation of credit for time served is one that gives the defendant full credit for the actual 

time served against his total term of imprisonment.” 2016 WY 46, ¶ 14, 371 P.3d 156, 159 

(Wyo. 2016). Accordingly, credit should be allocated “to one, but not more, of a 

defendant’s consecutive sentences.” Id. In so determining, we explained:

In the case of concurrent sentences, the period of presentence 

confinement should be credited against each sentence. This is 

so because concurrent sentences obviously commence at the 

same time and in functional effect result in one term of 

imprisonment represented by the longest of the concurrent 

sentences imposed. Only by giving credit against each 

concurrent sentence will the defendant be assured of receiving 

credit for the full period of presentence confinement against 

the total term of imprisonment. When consecutive sentences 

are imposed, crediting the period of presentence confinement 

against one of the sentences will assure the defendant full 

credit against the total term of imprisonment.

Id. (emphasis in original) (quoting Schubert v. People, 698 P.2d 788, 795 (Colo.1985)). 

We therefore concluded that the district court did not err when it ordered Mr. Palmer 

receive “credit for any time served” at the sentencing hearing and then, in its written 

judgment and sentence, applied his ninety-nine days of presentence confinement to the first 

of his three consecutive sentences. Id. ¶ 15, 371 P.3d at 159.

[¶25] Applying Scott and Palmer here, we conclude that the court’s written sentence failed 

to conform to its oral pronouncement with respect to credit for time served because, while

the court recognized at the sentencing hearing that Mr. Nesius was entitled to 211 days of 

credit for time served, it did not grant him credit for time served on the Count I felony in 

the written sentencing order. Mr. Nesius is entitled to 211 days of credit for time served 

on Count I to ensure that he receives “full credit . . . against his total term of imprisonment.” 

Palmer, ¶ 14, 371 P.3d at 159; see also Scott, ¶ 19, 278 P.3d at 753. Mr. Nesius is not, 

however, entitled to credit for time served on his consecutive sentence for the Count II

felony, lest he receive credit for double the time he actually spent in pre-sentence

confinement. Palmer, ¶ 14, 371 P.3d at 159.

[¶26] However, though we conclude that Mr. Nesius is not entitled to credit for time 

served on felony Count II, the district court had discretion to award him credit on that count

if it wished to do so. Hutton v. State, 2018 WY 88, ¶ 16, 422 P.3d 967, 971 n.8 (Wyo. 

2018) (citing Askin v. State, 2016 WY 9, ¶¶ 9–11, 365 P.3d 784, 786–87 (Wyo. 2016)). 
9

The record is not clear whether the district court intended, in its discretion, to award Mr. 

Nesius credit for time served on Count II. On remand for issuance of a corrected sentencing 

order, the district court should clarify its intent at the time of sentencing and either grant or 

deny credit on Count II.

CONCLUSION

[¶27] We affirm Mr. Nesius’ conviction for DUI causing serious bodily; mandate that the 

illegal portion of his sentence on Count V, fleeing or attempting to elude police officers,

be stricken; and conclude that Mr. Nesius is entitled to 211 days of credit for time served 

on Count I. The district court should also clarify the meaning of its oral pronouncement at 

sentencing as to Count II, and grant credit against that count if that was its intention, or 

deny if it was not. We therefore remand this case to the district court for issuance of a 

corrected sentencing order consistent with this opinion, and that conforms to its oral 

pronouncement.