Mark Daniel Byerly v. The State of Wyoming

                IN THE SUPREME COURT, STATE OF WYOMING

                                        

                                                           OCTOBER TERM, A.D. 2019

                                                                   December 27, 2019

 MARK DANIEL BYERLY,

 Appellant
 (Defendant),
                                                   S-18-0033, S-18-0034, S-18-0284,
 v.
                                                   S-18-0285, S-19-0088, S-19-0089
 THE STATE OF WYOMING,

 Appellee
 (Plaintiff).

                      Appeal from the District Court of Teton County
                         The Honorable Timothy C. Day, Judge

Representing Appellant:
      Christopher Lundberg, Spitzer Law, PLLC, Victor, Idaho

Representing Appellee:
      Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney
      General; Christyne M. Martens, Senior Assistant Attorney General; Russell Farr,
      Senior Assistant Attorney General. Argument by Mr. Farr.

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

DAVIS, C.J., delivers the opinion of the Court; BOOMGAARDEN, J., files a specially
concurring opinion in which KAUTZ, J., joins.


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.
DAVIS, Chief Justice.

[¶1] A jury found Mark Byerly guilty of six offenses: aggravated assault and battery;
domestic battery; strangulation of a household member; two counts of violating a
protective order; and witness intimidation. He asserts numerous errors on appeal, but
finding no grounds for reversal, we affirm.

                                        ISSUES

[¶2]   Mr. Byerly presents six issues on appeal, which we restate as follows:

             1)     Did the district court err in denying Mr. Byerly’s
             W.R.Cr.P. 33 motion for a new trial based on the State’s
             alleged failure to disclose exculpatory evidence?

             2)     Did the district court err in denying Mr. Byerly’s
             W.R.A.P. 21 motion for a new trial based on his several claims
             of ineffective assistance of counsel?

             3)     Did the State commit prosecutorial misconduct by
             vouching for the credibility of the victim and by failing to
             correct false testimony?

             4)    Did the district court err in joining charges against Mr.
             Byerly for trial?

             5)     Did the district court err in denying Mr. Byerly’s motion
             for a Daubert hearing on the testimony of the State’s domestic
             violence expert?

             6)    Did cumulative error warrant reversal of Mr. Byerly’s
             conviction?

[¶3] The State responds to those issues and presents the additional question of whether
Mr. Byerly’s appeal should be dismissed for failure to comply with the Wyoming Rules of
Appellate Procedure.

                                         FACTS

[¶4] Mark Byerly met Michele Pickerill in 2011, and they dated off and on until August
2013. They began dating again in May of 2014, and they dated and lived together off and
on until January 2016. On January 13, 2016, Ms. Pickerill broke up with Mr. Byerly. On
January 19, she invited him over, and he stayed the night. The next day, they texted back



                                             1
and forth about getting together that evening for dinner, without alcohol, so they could
discuss the future of their relationship.

[¶5] That evening, a friend of Ms. Pickerill’s invited her to join her and her husband for
a drink to celebrate the friend’s birthday. She agreed and met them at a local bar where
she drank beer and ate nachos. While there, Ms. Pickerill received a text message from
Mr. Byerly telling her where he was and asking her to join him.

             A.     . . . Mark texted and said, “I’m at The Moose, come over
             here.” So I did, that was about 6:30, quarter to 7:00. When I
             went upstairs at The Moose all our ski friends were there, a
             group of guys. I could pretty much tell right away that Mark
             had had several.

             Q.     Several?

             A.     Beers, you know. After skiing, you know, four o’clock
             you start drinking. It was 6:30, seven o’clock by then. A
             mutual friend of ours bought me a beer and a shot because
             that’s what they were doing. Mark started to get a little
             agitated. My friend Kim and Josh her boyfriend showed up.
             She finished work at 7:00.

             Q.    I’m going to stop you and back you up a little bit. Do
             you know what caused [him] to get agitated?

             A.     I don’t recall what was said that started him getting mad
             at me.

             Q.     Okay. Please continue.

             A.     Stood in the group of friends talking. Mark was saying
             some pretty nasty things to me again. I was like, “You know,
             we’re not talking tonight. We’re not going to dinner. I’m
             leaving. We’re done. I don’t need this.”

                    Was attempting to leave when he said, “No, you’re not
             going anywhere.”

                    By then Kim and Josh had shown up. Kim could tell by
             the look on my face that I wasn’t happy. Mark was standing to
             my left and he had his hand on my back, holding my shirt. Kim
             looked at me and said, “Do you want to go?”


                                             2
                    And I said, “Yeah.”

                  And Mark in my ear said, “You’re not fucking going
             anywhere.”

                     So, Kim and Josh left. Like, we gave her an opportunity
             to leave and she’s not going, we’re out. They left. One by one
             all the ski buddies left. Mark at one point had me by my collar,
             shaking me, just the usual yelling, you know, stuff that he does.
             At one point I looked over his shoulder and saw the bartender
             and gave the bartender a look like could you help me out here.
             He looked the other way.

                    Finally Mark let go and I proceeded to leave. By the
             time I got downstairs and made it out the front door of The
             Moose I felt Mark grab my elbow. He walked me out the front
             door.

[¶6] Mr. Byerly and Ms. Pickerill argued in the parking lot, and Mr. Byerly grabbed her
by the collar again and shook her. Ms. Pickerill then saw four people walking through the
parking lot some distance from them and yelled to them for help.

                     That really pissed him off so he put his hand over my
             mouth and spun me around real quick and from behind he
             walked me over to a snowbank and threw me down. I don’t
             know if it was his knee, hand, what he had on my back, but he
             held me in the snowbank, I don’t know, ten seconds. And I felt
             this is it, I want to go [sic] too far. He’s probably going to
             fucking kill me now and my kids are going to be real upset with
             me. I didn’t get out soon enough.

                    I thought he was going to kill me. When I tried to
             breathe I couldn’t breathe anything but snow. The entire time
             my head was in the snowbank he’s screaming, “You fucking
             bitch, you don’t understand how much I fucking love you,
             Michele. You just don’t know how much I fucking love you.”

                    I thought you’ve got to be kidding me, you fucking love
             me and you’re trying to kill me. He finally let go and I got up.
             He started walking to his truck and I started running the other
             way and turned around and said, “Don’t you ever fucking come
             near me again,” and ran.


                                             3
[¶7] Three days later, on January 23, 2016, Ms. Pickerill reported the January 20 incident
to law enforcement. On January 25, 2016, she completed an application for an order of
protection against Mr. Byerly, and on February 9, 2016, following an evidentiary hearing,
an order of protection was entered. On July 8, 2016, the State filed a criminal information
against Mr. Byerly, followed by an amended information on July 12, 2016. As amended,
the information charged Mr. Byerly with the following ten offenses, which we summarize
as follows:

       Count 1: Domestic Battery. This charge was based on abuse that was alleged to
       have occurred on May 6, 2015. Ms. Pickerill alleged that she met Mr. Byerly for a
       couple of beers, and then he came to her home and they argued. She further alleged
       that during the argument, he tore her bed apart, threw things, and grabbed her by the
       wrists and shook her so hard that her head hit the floor ten to twelve times.

       Count 2: Property Destruction. This charge stemmed from the Count 1 incident
       and alleged damage to a lamp during the incident.

       Count 3: Domestic Battery. This charge was based on abuse that was alleged to
       have occurred on July 25, 2015. Ms. Pickerill alleged that Mr. Byerly picked her
       up from paddle boarding, they went to dinner, and then got into an argument on the
       way home. She further alleged that he pulled his truck into a parking area on Adams
       Canyon Road, and once out of the truck, he chased her around it, threw her
       belongings out and at her, and eventually started throwing rocks at her.

       Count 4: Domestic Battery. This charge was based on abuse that was alleged to
       have occurred on August 12, 2015. Ms. Pickerill alleged that while she was having
       dinner with Mr. Byerly at a brewpub, they began to argue and he was kicked out of
       the restaurant. She further alleged that after she had their food boxed and paid the
       bill, she went out to her vehicle and found Mr. Byerly waiting for her. She alleged
       that he threw the food at her and threw her against the vehicle, causing her to hit her
       head.

       Count 5: Aggravated Assault and Battery. This charge was based on abuse that
       was alleged to have occurred on October 11, 2015. Ms. Pickerill alleged that after
       she spent the day goose hunting with Mr. Byerly, they drank beer on the way home,
       and once home they got into an argument. She further alleged that the argument
       escalated, and he threw her cell phone at her, and it hit her sloped bedroom ceiling.
       She alleged that he then jumped on top of her, threw coconut oil all over her and her
       bedroom, and that while he was holding onto her and squeezing her face, she bit
       him. She alleged that he responded by hitting her across the side of her head, which
       caused a perforated eardrum on her left side, a temporary loss of hearing, and
       persistent jaw pain.


                                              4
      Count 6: Property Destruction. This charge stemmed from the Count 5 incident
      and alleged damage to Ms. Pickerill’s bedroom ceiling where the cellphone hit it,
      and damage to the carpet from the coconut oil.

      Count 7: Domestic Battery. This charge was based on abuse that was alleged to
      have occurred on January 13, 2016. Ms. Pickerill claimed that on that evening, she
      and Mr. Byerly were at a brewpub with friends, and he offended her by kissing
      another woman. She further alleged that she left the brewpub and told him not to
      come to her home that evening, but he did anyway. She alleged that he came to her
      bedroom, where they argued, and he grabbed her by the wrists and shook her, which
      caused her pain.

      Count 8: Domestic Battery. This count is based on the events of January 20, 2016
      at the Mangy Moose.

      Count 9: Strangulation of a Household Member. This count is also based on the
      events of January 20, 2016 at the Mangy Moose.

      Count 10: Violating an Order of Protection. This count alleged that on or about
      April 5, 2016, Mr. Byerly violated the order of protection by indirectly
      communicating with Ms. Pickerill. Ms. Pickerill claimed that Mr. Byerly left boxes
      of items with his attorney that purportedly belonged to Ms. Pickerill, but instead
      contained items meant to indirectly communicate with her, including books with
      pages dog-eared and passages highlighted, a birthday card she had given him when
      they were together, two dirty sweatshirts she had given him when they were
      together, a couple of bottles of Coors Light, and a half-empty bottle of wine.

[¶8] On December 12, 2016, while the above-summarized charges were pending, Tim
Bohan, a mutual friend of Mr. Byerly and Ms. Pickerill, approached Ms. Pickerill at a
brewpub where she was having a drink with a friend.

             A.    We sat down, Tim approached us. Kim was sitting to
             my right, Tim was between us, I on the left.

                    And Tim said, “I’ve really been wanting to talk to you.”

                    And months prior to this – Tim is a mutual friend of
             Mark and mine. When this all went down Tim and I were
             discussing things one night, it really puts Tim in the middle. I
             said, “Tim, let’s just have an understanding right now. You
             and I do not talk about Mark and I, okay? That way you can



                                             5
             remain friends with both of us. Just let’s agree on that right
             now.” And he agreed.

                     So that night when he approached us he said, “I’m just
             really torn. I don’t know what to do. I had breakfast with Mark
             the other morning and he wants me to tell you something.”

                       And I put my hands up and said, “Don’t. No. Stop right
             there.”

             Q.        You literally put your hands up?

             A.        I literally put my hands up and said, “Stop right there.”

             Q.        Did Ms. Trantham respond?

             A.    She just kind of sat there watching going, “What?
             What?” I believe she said something like, Tim, you shouldn’t,
             you shouldn’t, referring to the restraining order.

             Q.        Did – what did Mr. Bohan do next?

             A.      He said, “Well, I’ve been sitting on this for a while and
             I’ve talked to other friends and everybody says I should leave
             it alone. But being your friend, Michele, I’m a little worried
             about what Mark’s telling me.”

                   Of course it got my curiosity up. I was like, “Really, we
             should just drop it.”

                     He said, “No, I’m a little worried. Mark wants me to
             tell you, you’d better drop this case or else.”

                       I said, “Or else what?”

                    And he said, “Well, he’s convinced that you’ve
             tampered with the photos you presented of your arms. You’ve
             doctored them somehow. He’s going to prove that you did that
             and when you finally do take the stand you’re going to be
             charged with perjury and he doesn’t want to see you go to jail.”

[¶9] Ms. Pickerill reported the incident to law enforcement, and Detective Chad Sachse
of the Teton County Sheriff’s Office interviewed Mr. Bohan. Mr. Bohan admitted


                                                 6
delivering the message to Ms. Pickerill as she described it, and he admitted that he did so
at Mr. Byerly’s request. On December 14, 2016, the State filed a second information
against Mr. Byerly alleging one count of influencing, intimidating, or impeding a witness,
and one count of violating an order of protection. Both counts were based on Mr. Bohan’s
message to Ms. Pickerill on December 12.

[¶10] On March 28, 2017, the State filed a motion to join the cases for trial, to which Mr.
Byerly did not object.1 On April 28, 2017, the district court entered an order joining the
two cases for trial. On July 17, 2017, the joined cases went to trial, and on July 21, the
case was submitted to the jury, and it returned its verdict. It found Mr. Byerly not guilty
on six of the charges: Count 1 (May 6, 2015 Domestic Battery); Count 2 (May 6, 2015
Property Destruction); Count 3 (July 25, 2015 Domestic Battery); Count 4 (August 12,
2015 Domestic Battery); Count 6 (October 11, 2015 Property Destruction); and Count 7
(January 13, 2016 Domestic Battery). It found him guilty of the remaining six charges:
Count 5 (October 11, 2015 Aggravated Assault and Battery); Count 8 (January 20, 2016
Domestic Battery); Count 9 (January 20, 2016 Strangulation of a Household Member);
Count 10 (April 5, 2016 Violating an Order of Protection); Count 11 (December 12, 2016
Influencing, Intimidating, or Impeding Witnesses); and Count 12 (December 12, 2016
Violating an Order of Protection).

[¶11] On December 1, 2017, the district court sentenced Mr. Byerly to a combined
sentence of one year in county jail on the misdemeanor convictions, and to prison terms on
the felony convictions. The sentences on the felony convictions were suspended in favor
of seven years of supervised probation. Mr. Byerly timely appealed to this Court. On
March 27, 2018, he filed a W.R.A.P. 21 motion for a new trial based on numerous claims
of ineffective assistance of trial counsel. This Court then stayed briefing on the appeal.

[¶12] The district court held an evidentiary hearing, and on September 17, 2018, it issued
an order denying Mr. Byerly’s Rule 21 motion. Mr. Byerly filed a timely notice of appeal
to this Court, and we entered an order lifting the stay and setting a briefing schedule.

[¶13] On January 22, 2019, Mr. Byerly filed a second motion for a new trial, this time
pursuant to W.R.Cr.P. 33(c). As grounds for this motion, he claimed that the State withheld
exculpatory evidence in the form of data downloads from Ms. Pickerill’s electronic
devices, and that he was therefore entitled to a new trial. This Court again stayed briefing
on Mr. Byerly’s appeal.

[¶14] On March 22, 2019, following an evidentiary hearing, the district court denied Mr.
Byerly’s Rule 33(c) motion, and Mr. Byerly again filed a timely notice of appeal to this
1
 The State filed an earlier motion to join the cases, but withdrew it before it was ruled on. Concerning that
motion, defense counsel stated during a February 14, 2017 pretrial hearing, “Mr. Byerly does object to the
joinder of the cases and I believe the State’s withdrawn that request at this time.” The record contains no
indication, however, that Mr. Byerly objected when the State filed its second joinder motion.


                                                      7
Court. This Court then consolidated Mr. Byerly’s appeals, lifted the stay on briefing, and
set a briefing schedule.

                                        DISCUSSION

[¶15] We will first address the State’s contention that Mr. Byerly’s appeal should be
dismissed for failure to comply with the Wyoming Rules of Appellate Procedure. Then
we will turn to Mr. Byerly’s claims of error, which we address in a different order to
provide an efficient discussion.

I.     State’s Request for Dismissal

[¶16] The State points to a number of deficiencies in Mr. Byerly’s brief, including its
failure to set forth a separate statement of issues for review, its failure to include a statement
of the case setting out the relevant facts and procedural history, and its failure in portions
of the briefing to provide required citations to the record. See W.R.A.P. 7.01. Based on
these deficiencies, the State asks that we not consider Mr. Byerly’s appeal. While we agree
that the brief is deficient, we have previously expressed our reluctance to dismiss criminal
appeals on such grounds.

               We agree with the State that Leger was remiss in his failure to
               prepare a brief that complies with our Rules of Appellate
               Procedure. We do not choose to dismiss the appeal for that
               reason, however. Leger clearly failed to comply with the Rule
               of Appellate Procedure that requires his brief contain separate
               sections briefly describing the nature of the case and the course
               of proceedings. See WYO.R.APP.P. 5.01(3), now 7.01(e)(1).
               Furthermore, Leger failed to include page references to the
               record in his statement of the facts. See WYO.R.APP.P. 5.01(3),
               now 7.01(e)(2).

                     On a number of occasions we have warned members of
               our bar that we may dismiss an appeal for failure to comply
               with the Wyoming Rules of Appellate Procedure. See
               Wyoming Game and Fish Comm’n v. Thornock, 

               (Wyo. 1993); Coones v. Fed. Deposit Ins. Corp., 

               (Wyo. 1993); Inter-Mountain Threading v. Baker Hughes
               Tubular Serv., Inc., 

 (Wyo. 1991); Jung-
               Leonczynska v. Steup, 

 (Wyo. 1989), appeal after
               remand, 

 (Wyo. 1990); V-1 Oil Co. v. Ranck,
               

 (Wyo. 1989). We do not retreat from that
               admonition, but the sanction of dismissal must be reserved
               primarily for civil cases. The dismissal of a criminal case


                                                 8
              simply confronts the court with a further claim of ineffective
              assistance of appellate counsel. Since the record in this case is
              not long, and the relevant portions of the record to permit
              review of the issues presented are easily found, our review has
              not been hampered by Leger’s failure to comply with the Rules
              of Appellate Procedure. See Steup.

Leger v. State, 

 (Wyo. 1993).

[¶17] Unlike the record in Leger, the record in this case is extensive, covering a five-day
jury trial and two motions for a new trial, each of which had its own evidentiary hearing.
Nonetheless, we are able to discern Mr. Byerly’s issues from the manner in which he
headed his arguments, and we thus remain reluctant to dismiss the appeal. As usual,
however, we will not consider arguments that are unsupported by cogent argument, cites
to the record, and relevant authority. See Osban v. State, 

, ¶ 7 n.2, 

, 741 n.2 (Wyo. 2019) (“An appellant is required to present this court with relevant
authority and cogent argument. It is not enough to identify a potential issue with the
expectation that this court will flesh out the matter from there. The appellant, at a minimum,
must attempt to relate the rule of law he depends upon to the facts of his case.”) (quoting
Sonnett v. First American Title Ins. Co., 

, ¶ 26, 

 (Wyo.
2013)). Additionally, we have held that we will not consider arguments that are supported
by no more than a reference to arguments made to the district court.

              Appellant’s argument cited neither pertinent authority nor
              made cogent argument. Appellant also incorporated by
              reference trial briefs contained in the record rather than the
              parts of the record relied on as directed by WYO.R.APP.P.
              7.01(f). See Scherling v. Kilgore, 

 (Wyo. 1979)
              (noting that this method does not comply with the rules)[.]

Davis v. Big Horn Basin Newspapers, Inc., 

 (Wyo. 1994).

[¶18] We turn then to Mr. Byerly’s claims, addressing first his claim of prosecutorial
misconduct.

II.    Prosecutorial Misconduct

[¶19] Mr. Byerly claims the State committed prosecutorial misconduct by vouching for
the victim’s credibility and by failing to correct false testimony. He did not object below,
so we review these claims for plain error. Herrera v. State, 

, 

 (Wyo. 2019). To establish plain error, an appellant must show that:




                                              9
              “(1) the alleged error clearly appears in the record; (2) the
              alleged error clearly and obviously violates a clear and
              unequivocal rule of law; and (3) the alleged error affects a
              substantial right” to his material prejudice. Cole v. State, 

, 

 (Wyo. 2017); see also Brown,
              ¶ 19, 332 P.3d at 1175. To satisfy the prejudice element of the
              plain error standard, a defendant must demonstrate a
              reasonable probability that he would have obtained a more
              favorable trial verdict without the error. Larkins v. State, 

, ¶ 94, 

 (Wyo. 2018).

Herrera, ¶ 24, 

-51 (quoting Nielsen v. State, 

, ¶ 23, 

 (Wyo. 2018)).

[¶20] To establish prosecutorial misconduct, Mr. Byerly must show “a prosecutor’s
improper or illegal act (or failure to act).” Dixon v. State, 

, ¶ 37, 

 (Wyo. 2019) (quoting Craft v. State, 

, 

 (Wyo.
2013)). “Allegations of prosecutorial misconduct are settled by reference to the entire
record and ‘hinge on whether a defendant’s case has been so prejudiced as to constitute
denial of a fair trial.’” Mraz v. State, 

, 

 (Wyo. 2016)
(quoting Hill v. State, 

, 

 (Wyo. 2016)).

A.     Vouching for Credibility of the Victim

[¶21] “Wyoming law is clear that a prosecutor may not elicit opinions concerning witness
credibility or personally vouch for the credibility of a witness.” Collins v. State, 

, 

 (Wyo. 2015) (quoting Fennell v. State, 

, 

 (Wyo. 2015)). Vouching occurs when a prosecutor offers his opinion of a
witness’s credibility, as distinguished from when he infers credibility from the same
evidence the jury has before it. Collins, ¶ 36, 

-65 (quoting Fennell, ¶ 43,

).

1.     Prosecutor’s Comment

[¶22] Mr. Byerly’s first claim of vouching is based on a statement by the prosecutor at the
conclusion of his direct examination of the victim. He stated, “Ms. Pickerill, I know it’s
been a very long day and I know this is hard to go back through. I appreciate your candor
and your diligence.” The record clearly reflects the comment so the first prong of the plain
error analysis is met.

[¶23] We also find that the comment violated a clear and unequivocal rule of law and
therefore find the second prong met. “Candor” can be defined in different ways, but among
its meanings is honesty. See Merriam-Webster’s Collegiate Dictionary 179 (11th ed.


                                              10
2007). The prosecutor’s comment can thus be fairly viewed as thanking the victim for her
honest testimony, and it effectively communicated the prosecutor’s opinion that her
testimony was truthful. The comment was improper vouching and should not have been
made. See Black v. State, 

, 

 (Wyo. 2017)
(improper vouching in prosecutor’s comments that a particular police officer was good and
that lead detective had done unbelievable police work); Hill, ¶ 49, 

(improper vouching in prosecutor’s comment that State’s expert was “one of the best
witnesses that I have seen testify”).

[¶24] As to the remaining prong of our plain error analysis, however, we are unable to
find that the error materially prejudiced Mr. Byerly. There was but a single remark, and
the jury returned not guilty verdicts on several charges for which Ms. Pickerill’s testimony
was the primary if not only supporting evidence. We cannot conclude from this record that
there was sufficient prejudice to have denied Mr. Byerly a fair trial. Mraz, ¶ 60, 

.

2.     Testimony of Victim’s Dentist

[¶25] The second instance of alleged improper vouching came during the testimony of
Ms. Pickerill’s dentist, Dr. Carol Owens, which Mr. Byerly claims the prosecutor then
improperly emphasized during his closing argument. Dr. Owens testified:

              Q.     And again, this may seem like a silly question, but if
              you have the need for a root canal does that mean your tooth is
              in pain?

              A.     Not always. Sometimes you can have asymptomatic
              and it may be discovered on an x-ray.

              Q.     And was that the case with Ms. Pickerill?

              A.     No, it was from her symptoms.

              Q.    And, again, can you categorize her explanation of the
              pain?

              A.     Michele’s a pretty tough girl. She’s not a whiner or
              somebody that whines every time you touch her. So I think if
              she says she’s in pain, I probably would agree that she is.

[¶26] During his closing argument, the prosecutor commented as follows on Dr. Owens’
testimony:



                                             11
                      Then the violent hit to the side of the head. She goes
              back because the pain continues in her teeth. In November she
              went to that visit and then just in January she had two root
              canals on those two teeth. Protracted pain. Do you remember
              the last thing Dr. Owens said? She’s a pretty tough girl and if
              she says she’s in pain, she’s in pain.

[¶27] The record reflects the testimony and prosecutor’s comments, so the first prong of
the plain error analysis is satisfied. We do not, however, find a violation of a clear and
unequivocal rule of law in either Dr. Owens’ testimony or the prosecutor’s comments. Dr.
Owens did not testify that in her experience Ms. Pickerill was truthful, or that she believed
Ms. Pickerill was in pain because she had been a truthful patient, or that she believed Ms.
Pickerill’s claim of abuse. She testified only that in her experience, Ms. Pickerill is tough.
Her testimony spoke to Ms. Pickerill’s pain threshold, not to her veracity, and though it
may have incidentally bolstered the credibility of Ms. Pickerill’s claims of pain, it was not
vouching testimony. See Spence v. State, 

, ¶ 14, 

 (Wyo.
2019) (noting that “incidental bolstering of the victim’s credibility alone does not make the
expert testimony [on abuse] improper,” so long as expert does not testify that she believed
the claim of abuse).

[¶28] The prosecutor’s comments were likewise not improper vouching. He did not offer
his opinion that Ms. Pickerill’s claims of protracted pain were true, but instead argued the
inference to be drawn from Dr. Owens’ testimony—that Ms. Pickerill was still in pain
when she saw Dr. Owens. See Collins, ¶ 38, 

 (applying the controlling
distinction between a prosecutor drawing a reasonable inference from evidence the jury
heard and a prosecutor arguing from his own experience or opinions). We therefore find
no plain error in Dr. Owens’ testimony or the prosecutor’s comments on the testimony.

B.     Failure to Correct False Testimony

[¶29] Mr. Byerly claims that Ms. Pickerill’s testimony that she turned over her laptop,
iPad, and both of her phones to law enforcement was demonstrably false, and the State had
an unequivocal duty to correct the false testimony. He offers no cites to the record to
support his claim that the testimony was false, and we therefore will not consider the
argument. See Osban, ¶ 7 n.2, 

 n.2 (“An appellant is required to present
this court with relevant authority and cogent argument. It is not enough to identify a
potential issue with the expectation that this court will flesh out the matter from there. The
appellant, at a minimum, must attempt to relate the rule of law he depends upon to the facts
of his case.”).




                                               12
III.   District Court’s Denial of Mr. Byerly’s W.R.Cr.P. 33(c) Motion

[¶30] Mr. Byerly filed a Rule 33(c) motion for a new trial based on his claim that the State
violated the disclosure requirements of Brady v. Maryland, 

, 

, 

 (1963), by suppressing evidence of data downloads taken from the victim’s
iPhone and iPad, and the district court denied that motion. We find no error in the court’s
ruling.

[¶31] Review of the denial of a Rule 33(c) motion is for an abuse of discretion, but we
review a district court’s ruling on a claim that the State improperly suppressed exculpatory
evidence de novo. Dockter v. State, 

, ¶ 16, 

 (Wyo. 2019)
(quoting Davis v. State, 

, 

 (Wyo. 2017)). Even in
our review of constitutional claims, however, “we defer to the district court’s findings of
fact underlying its determination unless they are clearly erroneous.” Garriott v. State, 

, 

 (Wyo. 2018) (quoting King v. State, 

,

 (Wyo. 2017)). “A finding of fact is clearly erroneous when, although
there is evidence to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.” 

[¶32] “[S]uppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Worley v. State, 

, 

 (Wyo. 2017) (citing Wilkening v. State, 

, 

 (Wyo. 2007)). To demonstrate a Brady violation, Mr. Byerly has the
burden of showing: “(1) the prosecution suppressed evidence; (2) the evidence was
favorable to the defense; and (3) the evidence was material because there is a reasonable
probability that, had the evidence been disclosed, the result of the proceedings would have
been different.” 

[¶33] Mr. Byerly claims that the State suppressed three electronic downloads from Ms.
Pickerill’s devices. He attached the extraction reports from those downloads to his Rule
33 motion and labeled them as follows: Exhibit A: February 3, 2016 download of Ms.
Pickerill’s iPhone; Exhibit B: December 8, 2016 download of Ms. Pickerill’s iPhone;
Exhibit C: December 8, 2016 download of Ms. Pickerill’s iPad. We will first outline the
background of each exhibit, and then we will turn to whether the downloads were
suppressed and the materiality of the downloads.

A.     Background of the Downloads

1.     Exhibit A

[¶34] On February 3, 2016, Ms. Pickerill turned her iPhone over to the Teton County
Sheriff’s Office to allow a download of its contents. The phone was encrypted with a


                                              13
password that is separate from Ms. Pickerill’s iTunes password, and also separate from the
general phone access password. The encryption password is one that cannot be recovered,
and if it is forgotten by the user, the encrypted data may not be accessed. When Ms.
Pickerill provided the iPhone to law enforcement in February 2016, she could not recall
the encryption password. Because the technician downloading the phone’s contents did
not have the encryption password, he was able to make a copy of its contents on that date,
but he could not access the encrypted data. That copy was placed in what was called a .tar
file, which was a mirror image of the phone’s contents on that date. The .tar file contents
could be accessed only with the encryption password.

[¶35] On August 5, 2016, shortly after the charges were filed against Mr. Byerly, the
county attorney’s office sent Mr. Byerly’s attorney a packet with a cover letter that stated,
“Enclosed please find the following discovery[.]” The letter identified three items being
produced, one of which was “Apple Iphone [sic] Info, 21-002 (Flash Drive).” The flash
drive that was produced contained the February 3, 2016 extraction report, which indicated
that the .tar file had been created.

2.     Exhibits B and C

[¶36] On December 8, 2016, the Teton County Sheriff’s Office performed another
download of Ms. Pickerill’s iPhone, and it also performed a download of her iPad. For this
download from the iPhone, the office had Ms. Pickerill’s encryption password, and the
extraction therefore included all the data that was contained on the phone. On February
16, 2017, the county attorney’s office sent Mr. Byerly’s attorney additional discovery,
which included notification that the downloads had been performed and were located on a
thumb drive that was entered into evidence as item number 010.

B.     Suppression

[¶37] To establish that the State suppressed the downloads in question, Mr. Byerly must
demonstrate that it failed to disclose the evidence.

                     Before a Brady violation occurs, the government,
              through the prosecutor or its agents, must have “suppressed”
              the information by not disclosing it to the defendant. See Kyles
              v. Whitley, 

, 

, 

 (1995). In addition, if a defendant’s attorney
              knew, or should have known through due diligence, about
              potential evidence it is generally not newly discovered. See
              Beintema v. State, 

 (Wyo. 1998)
              (“Huskinson’s plea agreement with the prosecution was not
              newly discovered evidence because the trial attorney knew
              about the plea agreement prior to Beintema’s trial.”).


                                              14
Dockter, ¶ 18, 

; see also Hooks v. Workman, 

 (10th
Cir. 2012) (“Evidence is not suppressed within the meaning of Brady if it is made known
and available to the defense prior to trial.”) (quoting United States v. Wooten, 

 (10th Cir. 2004)).

[¶38] We begin our suppression analysis with Exhibits B and C because we agree with
the district court that those downloads were not suppressed. We will then address Exhibit
A, for which the suppression question is more complicated.

1.     Exhibits B and C

[¶39] The district court found that the downloads contained in Exhibits B and C were not
suppressed because defense counsel was informed, by letter dated February 16, 2017, that
the downloads had been performed and placed on a thumb drive. The court found that the
State had satisfied its obligation by disclosing to defense counsel the existence and
availability of the information, and that defense counsel could have inspected or copied the
downloads before trial. We agree.

[¶40] “The essence of Brady is the discovery of information after the trial, which was
known to the prosecution but unknown to the defense during the trial.” Davis, ¶ 22, 

 (quoting Thomas v. State, 

, 

 (Wyo. 2006))
(emphasis in original); see also Relish v. State, 

 (Wyo. 1993) (“Evidence
is not ‘suppressed’ if the defendant either knew or should have known of the essential facts
permitting him to take advantage of any exculpatory evidence.”) (quoting United States v.
LeRoy, 

 (2d Cir.1982), cert. denied, 

, 

, 

 (1983)). Moreover, the State’s disclosure of exculpatory evidence need not
be “in a specific form or manner.” Hooks, 

 (quoting United States v.
Hernandez–Muniz, 

 (10th Cir. 1999)).

[¶41] Hooks is illustrative. In that case, the Tenth Circuit rejected a Brady claim where
the government informed defense counsel of its interview of a potentially favorable witness
and gave an abbreviated description of her statement.

                      We have no trouble concluding that the State fulfilled
              its Brady obligation here. Ms. High disclosed to Ms. Werneke
              that she had spoken with Ms. Prater and that Ms. Prater had
              opined that Mr. Hooks was mentally retarded. Evidence
              favorable to Mr. Hooks was thus “made known and available”
              to his counsel. Wooten, 

. While Ms. High did
              not go into great detail about the conversation, she need not
              have. Not “every possible shred of evidence” need be
              disclosed, Smith [v. New Mexico Dep’t of Corrections], 

                 [801] at 823 [(10th Cir. 1995)], nor is a “complete and detailed
                 accounting” required, Moore [v. Illinois], 408 U.S. [786] at
                 795, 

 [(1972)]. The memo disclosed enough of
                 the conversation with Ms. Prater to put counsel for Mr. Hooks
                 on notice that favorable and possibly material evidence was
                 available.

Hooks, 

.

[¶42] The same is true here. The February 16, 2017 letter informed defense counsel of
the December 2016 downloads, and it informed her that that they had been placed on a
thumb drive and logged into evidence. As the district court found, the downloads were
available and could have been obtained on request.

[¶43] Mr. Byerly does not dispute that defense counsel received the February 16, 2017
letter.2 He argues instead that a request for the downloads would have been unavailing
because the later-appointed special prosecutor had no knowledge of the downloads. The
record does confirm that the downloads were done, and the February 2017 letter was sent,
before the special prosecutor’s appointment and that he did not know of them. We do not
see, however, that this would have been an impediment to obtaining the downloads. Had
defense counsel shared the February 16, 2017 letter with the special prosecutor, he would
have been informed of the existence of the downloads, and presumably would have
complied with a request for them.

[¶44] The State disclosed the existence of the downloads to defense counsel and thereby
made them available to Mr. Byerly. The evidence contained in Exhibits B and C was not
suppressed, and we therefore find no Brady violation with respect to that evidence.3

2.      Exhibit A

[¶45] Mr. Byerly again does not dispute that the State informed defense counsel of the
existence of the .tar file. He instead contends that providing the notice was not sufficient,
and that once the State learned of Ms. Pickerill’s encryption password, the State had an
obligation to use the password to create a download of the encrypted data in the .tar file.
The district court noted that the law was unclear on whether such an obligation exists, and

2
  In his Rule 21 motion below, he acknowledged that the February 16, 2017 letter informed defense counsel
that the December 2016 downloads were available.
3
  Because we agree with the district court that the February 16, 2017 letter satisfied the State’s disclosure
obligation, we need not determine for purposes of Mr. Byerly’s suppression claim whether the defense team
in fact obtained the December 2016 downloads. Mr. Byerly asserts in his ineffective assistance of counsel
claim that his trial counsel failed to obtain them, and to avoid confusing the district court’s findings on the
separate new trial motions, we will save our discussion of that point until we address the ineffectiveness
claim.


                                                       16
without deciding the question, it rejected Mr. Byerly’s claim because he failed to show the
evidence contained in Exhibit A was material.

[¶46] There is authority to suggest that the State would have no obligation to take the step
urged by Mr. Byerly, as reflected in this Seventh Circuit decision rejecting a similar
argument.

              [Gray argues] that in advance of trial the government should
              have directed EDS to create and run programs to extract data
              from its database that would be useful to the defense. That
              argument is a non-starter. E.g., 

 [United States v. Morris, 

,] at 1168-70 [(7th Cir. 1996)]. “We find the proposed
              extension of Brady difficult even to understand. It implies that
              the state has a duty not merely to disclose but also to create
              truthful exculpatory evidence.” Gauger v. Hendle, 

 (7th Cir. 2003), overruled on other grounds by
              Wallace v. City of Chicago, 

 (7th Cir. 2006). “The
              failure to create exculpatory evidence does not constitute a
              Brady violation.” United States v. Alverio–Melendez, 

 (1st Cir. 2011); see also United States v. Monroe, 

, 1011-12 n.2 (9th Cir.1991). As it happened, the
              government for its own purposes ran such a program during the
              trial and having done so, as we know, promptly turned over the
              results to the defendant because they were potentially
              exculpatory. It had no duty to go further and conduct the
              defense’s investigation for it.

                     It may be helpful to distinguish between patent and
              latent exculpatory evidence. Patent exculpatory evidence is
              evidence that is exculpatory on its face; an example would be
              a confession by Suddoth, in the possession of the FBI, in which
              he took full responsibility for the fraud and described Gray as
              an innocent whom he had gulled. Such evidence is Brady
              material. Latent exculpatory evidence is evidence that requires
              processing or supplementation to be recognized as
              exculpatory. It is illustrated by the timestamp data in this case,
              the exculpatory character of which was unknown and
              unknowable until EDS wrote and ran the program that
              extracted the data from its database.

                     To charge prosecutors with knowledge of exculpatory
              evidence buried in the computer databases of institutions that
              collect and store vast amounts of digitized data would be an


                                               17
             unreasonable extension of the Brady rule. The courts, rightly
             in our view, have refused to make it. The government is not
             “obliged to sift fastidiously” through millions of pages
             (whether paper or electronic). United States v. Warshak, 

 (6th Cir. 2010). It is “under no duty to direct a
             defendant to exculpatory evidence [of which it is unaware]
             within a larger mass of disclosed evidence.” United States v.
             Skilling, 

 (5th Cir. 2009), vacated in part on
             other grounds, –– U.S. ––, 

, 

             (2010); cf. United States v. Joseph, 

 (3d
             Cir. 1993).

United States v. Gray, 

 (7th Cir. 2011).

[¶47] That said, commentators also increasingly recognize that electronic data may
complicate a government’s Brady obligations. See Comment, Does Brady Have Byte?
Adapting Constitutional Disclosure for the Digital Age, 50 Colum. J. L. & Soc. Probs. 97,
116-17 (Fall 2016) (“Practitioners, scholars, and judges alike are grappling with the
repercussions of a digital discovery regime for criminal litigation. Their concern centers
on the recognition that the mechanics of Brady doctrine, established in an age of paper
discovery, do not align with the demands of electronic discovery.”) (footnotes omitted).
Neither Mr. Byerly nor the State has argued the question of a prosecutor’s Brady
obligations with authority that is specific to the unique nature of electronic data, and
without full briefing, we are reluctant to define those obligations.

[¶48] We therefore leave that question for another day and instead proceed to the prejudice
prong. See Dockter, ¶ 18, 

 (noting it was questionable whether information
was suppressed and concluding the question need not be addressed because defendant had
not shown a reasonable probability the result would have been different); Hicks v. State,

, 

 (Wyo. 2008) (noting uncertainty in whether
information could be considered suppressed and therefore resolving question on materiality
prong).

C.    Materiality of Information in Exhibit A Download

[¶49] Because we have concluded that the Exhibit B and C downloads were not
suppressed, we need not address the materiality of the information contained in those
downloads. For clarity and completeness, however, we will list each item of information
that Mr. Byerly identifies as material to his defense. For those items drawn from Exhibit
B or C, we will so indicate and omit any discussion of their materiality.




                                             18
1.     Text Message re Jaw Pain

[¶50] The first item Mr. Byerly points to is a January 7, 2016, text message from Ms.
Pickerill to a friend, which stated: “I ended up having an emergency root canal yesterday
as the crack in my tooth is what has been causing all of this pain. I thought it was an ear
infection.”

[¶51] This relates to the ear and jaw pain Ms. Pickerill experienced after the October 11,
2015 incident charged in Count 5 and for which Mr. Byerly was convicted of aggravated
assault and battery. Mr. Byerly argues this item could have been used to cross-examine
Ms. Pickerill because she testified that she thought her jaw pain was caused by the blow
across her face, not by an ear infection. He contends the claim of jaw pain is particularly
suspect because she never reported it to Dr. Trott, the ENT physician who treated her the
day after the incident.

[¶52] We disagree that this message would have had a material impact on the cross-
examination of Ms. Pickerill. That she wondered if the jaw pain she was experiencing
three months after the October incident might be related to an infection does not mean that
she could not also have believed her earlier persistent jaw pain was caused by the blow to
her face. Moreover, we do not agree that the report of jaw pain is missing from Dr. Trott’s
notes. Dr. Trott saw Ms. Pickerill on October 12, 2015, a day after the incident alleged in
Count 5, and he diagnosed a “small inferior TM [tympanic membrane] perforation with
bruising of TM.” However, a little over a month later, Dr. Trott’s notes report (emphasis
added): “Seen about 1 month ago with left TM perforation following altercation with
boyfriend. Also had jaw pain. She is continuing to have ear and jaw pain, bilateral, but
L>R.”

[¶53] Ms. Pickerill’s testimony that she thought her jaw pain was caused by the October
11 incident was consistent with what she reported to Dr. Trott. Moreover, Ms. Pickerill’s
testimony and that of her treating physicians was not the only evidence to support Count
5. The record also contains evidence of Mr. Byerly’s conduct in the days following the
Count 5 incident. He sent emails in the days after the incident, in which he stated, “I am
ashamed that we got in a fight n u got hurt;” “I feel like shit, completely sick about our
fight especially you getting hurt;” “yes i am concerned abt your hearing of course. from
my research it shows you can heal but it is more like 3 months;” “i truly apologize for a[n]y
and all hurts ever inflicted;” and “please forgive me Michele I am soo very sorry.” He
also, on October 16, 2015, signed up to take domestic abuse classes.

[¶54] Against the evidence supporting Count 5, and the notes of jaw pain in Dr. Trott’s
notes, we cannot find a reasonable probability that cross-examination of Ms. Pickerill with
her January 7, 2016 text message would have changed the outcome of Mr. Byerly’s trial
on Count 5.



                                              19
2.     Text Messages re Photos of Ms. Byerly’s Injuries

[¶55] The next item Mr. Byerly points to are Ms. Pickerill’s text messages seeking help
to print photos stored on her iPhone onto photo quality paper because they print too dark
on regular paper, as well as a response that she could try a shop in town where they can
print from the phone and lighten the photo using PhotoShop. These text messages are
contained in Exhibit C and were not suppressed.

3.     Text Messages re Going to Bars and Drinking on January 20, 2016

[¶56] Mr. Byerly next cites to a series of text messages between he and Ms. Pickerill in
which they discuss their plans for the evening of January 20, 2016, which was the date of
the incident at the Mangy Moose that led to Count 8 (domestic battery) and Count 9
(strangulation of a household member). The messages between them discussed that she
was going to a bar with friends and would then meet Mr. Byerly at the Moose. He argues
that the messages are material to impeaching Ms. Pickerill because they show that she was
in control of the events that evening and he was following her lead. We disagree.

[¶57] First, we fail to see how these text messages could have been unknown and a
surprise to Mr. Byerly since he was a party to them. Second, they are entirely consistent
with Ms. Pickerill’s testimony that she went first to one bar with friends and then met Mr.
Byerly at the Moose. Third, they do not establish that she was in control once she met up
with Mr. Byerly and after they left the bar.

4.     Text Messages re Timing of Events on January 20, 2016

[¶58] Mr. Byerly next points to text messages that concern the timing of the events on
January 20, 2016. Specifically, he cites Ms. Pickerill’s text message that evening to a
friend, in which she gave him and his wife permission to stay another night at the house
where she was caretaking and told him she would be there with Mark. He argues that the
evidence establishes that nearly two hours after her arrival at the Moose, she was saying
she would be going home with him, making it useful for cross-examination. We disagree
that cross-examination on the evidence would have had a material impact.

[¶59] First, the messages do not establish the definitive timeline Mr. Byerly suggests. It
shows a text message from Ms. Pickerill to Mr. Byerly at 5:35 p.m. stating that she is on
her way, not that she had arrived at or was in the bar, and then at 7:11 p.m., the text to her
friend. In any event, regardless of the timing of when Ms. Pickerill arrived at the bar and
how much time passed before her interaction with Mr. Byerly deteriorated, there were two
other witnesses who testified to the tension between Ms. Pickerill and Mr. Byerly while
they were in the bar. Kim Trantham testified:




                                               20
              Q.    And when you say you observed him being aggressive
              can you explain what made you think that?

              A.    He was standing really close to Michele, I can’t – I don’t
              know if he was grabbing her. I think he was grabbing her,
              holding her arms. And he was red and angry and that’s why I
              thought . . .

Joshua Riggs testified:

              Q.     Do you recall anything in particular about that evening?

              A.     From what I remember I met Kim, she had been
              working. And we met up and we went upstairs and at one point
              I had my back to Mark and Michele and I didn’t even realize
              they were there until I saw the look on Kim’s face and she was
              basically saying, you’ve got to go stop this.

                      And I turned around and Mark was in her face yelling
              at her, just being belligerent. And so I walked over and I said
              – I asked him to calm down, you know, because it looked – he
              was getting really red in the face and I was worried something
              was going to happen. Mostly I wanted to check in on Michele.

[¶60] Finally, Ms. Pickerill did not testify definitively to when she arrived at the bar or
how long she stayed at the bar. She testified that she believed she arrived shortly before
7:00, and estimated that she left before 8:00. Discrepancies in that timing when testified
to over eighteen months after the fact were unlikely to have the impact of the witness
testimony concerning the interactions in the bar, and we see no reasonable probability that
the cross-examination would have changed the outcome on the charges related to that
evening.

5.     Additional Text Messages re January 20, 2016

[¶61] Mr. Byerly points to several other text messages that relate to the events on January
20, 2016. The first is a text message in Exhibit A that he sent Ms. Pickerill late the evening
of January 20, 2016, in which he berates her for causing their problems and tells her she
needs therapy. He argues that the message shows that he was the one that wanted to break
things off after being mistreated by her. We again presume that this message was not new
information to Mr. Byerly since he sent the message himself. Moreover, numerous emails
from Mr. Byerly to Ms. Pickerill were admitted into evidence and those showed that in the
days following the January 20, 2016 incident, he repeatedly asked her to be with him and



                                              21
asked her to ignore her friends’ advice to the contrary. We do not see that the cited message
from Mr. Byerly would have materially affected his cross-examination of Ms. Pickerill.

[¶62] Mr. Byerly also points to Exhibit A for the lack of text messages from Ms. Pickerill
concerning the incident in the parking lot. He contends that this is evidence that nothing
happened that evening and that her distress and report to law enforcement instead resulted
from her intoxication and anger at him for breaking up with her. This again ignores the
other evidence in the record. As indicated above, Mr. Byerly’s own emails in the days
after the incident showed that he wanted Ms. Pickerill to be with him and had not broken
up with her. Additionally, while Ms. Pickerill may not have sent text messages after the
incident, two separate couples who were staying in the home where she was staying
testified to her being distraught after the incident and recounting the same story of what
happened. We cannot find that the lack of text messages would have had a material effect
on the defense.

[¶63] The final evidence Mr. Byerly points to that he claims would have been helpful to
his defense against the January 20 charges was a text message from one of the persons who
testified concerning Ms. Pickerill’s demeanor after the incident. The text message stated
they were headed to dinner and getting drunker. The text message Mr. Byerly cites was
contained in Exhibit C and was not suppressed.

6.     Evidence re Protection Order Violation and Witness Intimidation

[¶64] Mr. Byerly next point to a series of text messages that he claims were material to
Counts 10, 11, and 12. Each of the messages was drawn from Exhibit B or Exhibit C, and
therefore none of them were suppressed.

[¶65] We recognize that we must consider the cumulative effect of the allegedly
suppressed evidence on our confidence in the verdict, as opposed to an item-by-item
consideration of the evidence. Kerns v. State, 

 (Wyo. 1996). Even
considered in that light, we are unable to find that Mr. Byerly’s defense was prejudiced by
the State not creating and producing Exhibit A before trial.

IV.    Ineffective Assistance of Counsel

A.     Standard of Review and Governing Law

[¶66] The district court denied Mr. Byerly’s W.R.A.P. 21 motion for a new trial after an
evidentiary hearing on his numerous claims of ineffective assistance of counsel. Our
standard for reviewing that ruling is as follows:

                     An appeal of an ineffective assistance of counsel ruling
              presents mixed questions of law and fact. Miller v. State, 2018


                                              22
              WY 102, ¶ 13, 

 (Wyo. 2018) (quoting
              Worley v. State, 

, 

 (Wyo.
              2017)). We review the district court’s conclusions of law de
              novo and defer to its factual findings unless they are clearly
              erroneous. 

 “A finding is clearly erroneous when, although
              there is evidence to support it, the reviewing court on the entire
              evidence is left with the definite and firm conviction that a
              mistake has been committed.” Miller, ¶ 13, 

              (quoting Cowboy’s LLC v. Schumacher, 

, ¶ 10,
              

 (Wyo. 2018)).

Wall v. State, 

, ¶ 38, 

 (Wyo. 2019).

[¶67] Mr. Byerly asserts numerous claims of ineffectiveness. To prevail on those claims,
he must show that his counsel “rendered constitutionally deficient performance” and that
absent that deficiency, “a reasonable probability exists that [he] would have enjoyed a more
favorable verdict.” Larkins v. State, 

, ¶ 62, 

 (Wyo. 2018)
(citing Strickland v. Washington, 

, 

, 

 (1984)).

              To show that trial counsel’s performance was constitutionally
              inadequate, the defendant must demonstrate that the attorney’s
              performance was substantially below that of a reasonably
              competent attorney. Bruckner v. State, 

, ¶ 15, 

 (Wyo. 2018). We “evaluate[ ] counsel under
              the circumstances existing at the time of the challenged act or
              omission and from the perspective available at the time of the
              challenged act or omission.” Id. at ¶ 15, 

.
              Because a defendant must establish both prongs, a court can
              decide an ineffective assistance claim on the prejudice prong
              without considering the deficient performance prong.
              Strickland, 

, 

.

Wall, ¶ 39, 

 (quoting Larkins, ¶ 62, 

).

B.     Analysis of Mr. Byerly’s Claims

[¶68] Between his headings and subheadings, Mr. Byerly asserts fourteen claims of
ineffectiveness. We reject all fourteen.




                                               23
1.     Failure to Obtain Evidence in Possession of the State

[¶69] Mr. Byerly first claims trial counsel was deficient in failing to obtain the downloads
contained in Exhibits A, B, and C, which were the subject of his Rule 33 motion. With
respect to the downloads contained in Exhibit A, we have found that Mr. Byerly’s defense
was not prejudiced by not having that information. We therefore resolve this aspect of the
claim on the prejudice prong, and we need not address whether trial counsel was deficient
in failing to pursue the information in Exhibit A. Wall, ¶ 39, 

 (“Because a
defendant must establish both prongs, a court can decide an ineffective assistance claim on
the prejudice prong without considering the deficient performance prong.”).

[¶70] With respect to the downloads in Exhibits B and C, the district court made the
following findings:

              23.     With respect to the Later-Disclosed Data, trial counsel
              was provided at the May 22 hearing with a report from the
              Teton County Sheriff’s Office that showed two pieces of
              evidence: a phone interview with a witness [name omitted] and
              a CD [thumb drive] of data from some phones. Trial counsel
              testified that she did not recall seeing that report prior to trial
              but that perhaps her private investigator did. She testified that
              she relies on her investigator, Mr. Dugan, to review all
              evidence for exculpatory material and then discuss the results
              of his review with her. In this case, her investigator billed her
              for 149 hours of work interviewing witnesses, reviewing
              discovery received from the State, and reviewing what
              Defendant and his previous counsel provided to trial counsel.
              She testified that Mr. Dugan also billed Mr. Byerly directly for
              additional hours of work.

                                           ****

              28.     The Court finds that it was reasonable for trial counsel
              to rely on her investigator to review discovery material for
              exculpatory evidence. In this case, it was a reasonable
              professional judgment to hire an assistant, i.e., the investigator,
              to assist in reviewing the voluminous discovery materials.

[¶71] The district court essentially concluded that although trial counsel did not herself
request and review the Exhibit B and C downloads, the defense team had them and they
were reviewed. Mr. Byerly does not directly address this finding, but he contends it would
have been impossible for the defense to have had the downloads before trial because the



                                               24
special prosecutor did not know of the thumb drive’s existence until after the trial. We
disagree.

[¶72] The special prosecutor took over the case against Mr. Byerly on March 20, 2017,
after the Exhibit B and C downloads were done and after the February 16, 2017 letter to
trial counsel informing her of the thumb drive containing the downloads. For whatever
reason, the thumb drive was not in the files that were given to the special prosecutor, and
he therefore did not know of it. It does not follow, however, that trial counsel either herself
or through her investigator did not receive the downloads before the special prosecutor’s
appointment, and the record shows that the defense team in fact had and reviewed the
downloads.

[¶73] First, as the district court found, trial counsel did not recall the thumb drive that
contained the December 2016 downloads, but she relied on her investigator to review
material provided in discovery and to inform her of important items and exculpatory
information. The record shows that trial counsel’s investigator worked nearly two hundred
hours on the case, and trial counsel also testified to reviewing hundreds of pages of emails.
Trial counsel also testified concerning the various downloads:

              Q.    Okay. Did you see any text or any text messages that
              were contained in that extraction report?

              A.     So, typically when you get an extraction report it should
              have everything. Every photograph, even the GPS markings
              where those photographs were taken. Dates, times, texts,
              anything that came through that phone.

                     Mr. Byerly and I had discussed and he pointed out as
              well when I took over the case that it appeared that numerous
              texts were not part of that download.

                                           ****

              Q.     Did you – did you see any web history on that extraction
              report?

              A.     I don’t know if it was memes and gifs or if it was web
              history, I’d have to go back and look at that report. I wasn’t
              looking for Ms. Pickerill’s general email searches. What I was
              looking for was information between and conversations
              between Mr. Byerly and Ms. Pickerill.

              Q.     Okay.


                                               25
A.     So I don’t remember specifically web searches.

Q.    Okay. And did you ever make a request for the
underlying backup file from that phone?

A.     When that request was made, it was made after Mr.
Byerly’s trial. I believe you have the email and you submitted
those as exhibits already as part of your motion.

Q.     Okay. So you did end up requesting that backup file?

A.      I don’t know if that’s a backup file. I’m not familiar
with the .tar file. After trial Mr. Byerly had spoken with some
additional experts who were then requesting the .tar file. Prior
to trial we had engaged an expert, I believe for the recording.
We had discussed at length experts on the telephone portions.
Mr. Byerly was not interested in hiring an expert for the
telephone portions at that time. I did not hire one on his behalf.

       So, at the time the .tar file was requested, which I’m not
familiar with, that was done after trial after Mr. Byerly had
spoken with some additional person.

Q.     Okay. And did you receive that backup file then?

THE COURT:            I’m sorry, pardon my interruption. Mr.
Byerly was not interested in hiring experts on the phone issue,
can you clarify what that means? Are you talking about the
extraction report on the victim’s phone?

THE WITNESS:         Throughout working with Mr. Byerly and
in numerous conversations that he had with me and my
investigator he was very concerned about the phone, whether
or not photographs on the phone had been manipulated,
whether or not text messages were missing. He was also very
concerned about an audio recording that we had that we
successfully kept out of the trial proceedings.

       And so the idea of hiring an expert was something that
we discussed quite a lot. I’m not an expert on the phones. Mr.
Byerly had pretty substantial knowledge, but he didn’t qualify
as an expert and I wasn’t willing to call him to testify to those


                                26
                things. An expert was never hired and we moved forward with
                just Mr. Byerly’s request later on.

[¶74] It is apparent from trial counsel’s testimony that the defense team had the later-
produced data downloads, those found in Exhibits B and C, and that they reviewed and
discussed the information.4 That is further evidenced by trial counsel’s use of evidence
from the downloads to cross-examine Ms. Pickerill. Trial counsel prefaced her cross-
examination with questions concerning Ms. Pickerill’s consent to a search of her cell
phone, and then when she moved for admission of the exhibit, she explained, “They were
provided by the State as part of the cell phone dump.”

[¶75] Based on the record, we find no clear error in the district court’s finding that trial
counsel obtained the data downloads in Exhibits B and C, and Mr. Byerly has therefore
failed to show that counsel was ineffective.5

2.      Failure to Object to State Exhibits

[¶76] Mr. Byerly’s second claim is that trial counsel was ineffective in failing to object to
a number of State exhibits on foundation and chain of custody grounds. In support of this
claim, he lists a string of exhibits by number and makes a conclusory argument concerning
best evidence, with no citation to or discussion of relevant authority. Because this claim is
not supported by cogent argument, we do not consider it. Osban, ¶ 7 n.2, 

4
  The record contains evidence of only two data downloads, the one that took place in February 2016 without
the encryption password, and the one that took place in December 2016 with the encryption password. The
February 2016 download resulted in the .tar file with otherwise no accessible data. It is therefore reasonable
to assume that the downloads in trial counsel’s possession were the subsequent December 2016 downloads
that later became known as Exhibits B and C.
5
  Mr. Byerly limits his claim to trial counsel’s alleged failure to obtain the data downloads and makes no
claim that trial counsel was ineffective in her evaluation or use of the data. Although that is the case, Mr.
Byerly’s allegation of photo manipulation permeates his briefing, so we will take this opportunity to address
the text messages he contends support his allegation. The messages were sent the day before the hearing on
Ms. Pickerill’s application for a protection order. She wrote to her daughter and to a friend and asked if
they could print the photographs from her telephone to photo quality paper because they came out too dark
on regular paper. Her friend responded that she should go to a shop in town and “just walk in w your phone
& they can tell you how to send them to them, run them in PhotoShop to work in the lighting & print . . .
you best hurry tho-they might close by 6.” We fail to see that cross-examination on this front would have
affected the verdict. First, the conversation was fairly innocuous, particularly in light of the photographs
admitted into evidence at trial. The photographs were not especially clear or graphic, in contrast to what
one might expect with photo manipulation. More importantly, Mr. Byerly was acquitted of the charge to
which the photographs of bruising on Ms. Pickerill’s arms related, so the cross-examination obviously
would not have affected the verdict on that count. As to the remaining two photographs, they showed
redness on Ms. Pickerill’s face and were admitted as evidence of the October 2015 aggravated assault and
battery charge. Given the other evidence on that count, including the medical finding of a perforated
eardrum the day following the incident and Mr. Byerly’s email apologies both for the fight and that she got
hurt, we cannot see that cross-examination on the conversation between Ms. Pickerill and her friend would
have yielded a different verdict.


                                                      27
n.2 (“An appellant is required to present this court with relevant authority and cogent
argument. It is not enough to identify a potential issue with the expectation that this court
will flesh out the matter from there. The appellant, at a minimum, must attempt to relate
the rule of law he depends upon to the facts of his case.”).

3.     Failure to Seek Sanction of Witness Exclusion and Object to Treatment Note

[¶77] Mr. Byerly next claims that trial counsel was ineffective in failing to seek exclusion
of Dr. Josie Wittner’s testimony for her failure to comply with a defense subpoena for
records. He further claims that trial counsel should have objected to her treatment notes
on hearsay grounds. Mr. Byerly acknowledges that Dr. Wittner’s testimony and notes
related to Count 1, for which he was acquitted, but he argues: “The prejudicial cumulative
impact of each additional unnecessary witness for the State was to essentially run out the
clock, take time and energy from the jury that Mr. Byerly could have used to present
additional witnesses on his own behalf.”

[¶78] Mr. Byerly cites to nothing in the record to suggest that the State put on witnesses
to run out the clock or that he was precluded from putting on witnesses because of time
constraints. Nor is there anything to suggest that the jury lacked the energy or time to
consider each charge carefully. It deliberated from 10:20 a.m. on the fifth day of trial until
7:13 that evening, and it returned a verdict of not guilty on six of the twelve counts.
Because Mr. Byerly has not shown he was prejudiced by Dr. Wittner’s testimony and
report, we need not consider this claim further.

4.     Failure to Limit or Exclude Objectionable Testimony by Victim

[¶79] Mr. Byerly next claims that Ms. Pickerill’s testimony was “replete with inadmissible
statements” and that trial counsel was ineffective in failing to object. In support of his
claim, he directs us to the Rule 21 motion he filed with the district court, and he otherwise
provides no legal analysis. Because he does not support his claim with cogent argument,
we do not consider it. Davis, 

 (arguments supported only by reference to
trial briefs will not be considered); Osban, ¶ 7 n.2, 

 n.2.

5.     Failure to Object to Expert Testimony

[¶80] Mr. Byerly next claims trial counsel was ineffective in failing to object to expert
testimony that exceeded the scope of the State’s pretrial designation. Mr. Byerly does not
support this claim with cites to the relevant parts of the record or with any legal analysis,
and we therefore do not consider it. Osban, ¶ 7 n.2, 

 n.2.




                                               28
6.     Failure to Object to Testimony by Other State Witnesses

[¶81] Mr. Byerly next claims trial counsel was ineffective in failing to object to hearsay
and speculation in the testimony of other State witnesses. In support of this claim, he again
offers no legal analysis or record cites and instead directs us to his Rule 21 motion filed
with the district court. Because he does not support his claim with cogent argument, we
do not consider it. Osban, ¶ 7 n.2, 

 n.2; Davis, 

.

7.     Failure to Seek Admission of Victim’s Prior Statements into Evidence

[¶82] Mr. Byerly next claims that trial counsel was ineffective in failing to seek admission
of the transcript of Ms. Pickerill’s testimony in the protection order hearing; her written
statement to law enforcement; and her recorded interview with law enforcement. With
respect to prejudice, he contends:

              The most material element of the civil protection order hearing
              transcript to Mr. Byerly’s defense was the statement by Ms.
              Pickerill that on January 20th, 2016, Mr. Byerly was “hovering”
              over her as she was in the snowbank in the parking lot of the
              Mangy Moose, not being actually touched or held down. (T.T.
              p. 459, L.2 – p. 460, L.7). That is a critical distinction with
              respect to Count 9 and it is reasonable to think that had the jury
              been able to reference the transcript of that hearing during their
              deliberations, that distinction would have been more evident
              and would have provided the basis for Mr. Byerly to be
              acquitted of Count 9.

[¶83] Mr. Byerly provides no analysis of the admissibility of the three items he contends
should have been admitted, and he provides no cites to where in the record the items can
be found. Moreover, even if the items had been admitted, they are testimonial statements
and as such would not have been permitted to go to the jury room during deliberations.
Bogard v. State, 

, 

 (Wyo. 2019) (Davis, C.J.,
concurring); see also Warner v. State, 

 (Wyo. 1995). For these reasons,
we do not consider this claim any further.

8.     Failure to Have Entire Bohan Interview Played

[¶84] When Tim Bohan met with law enforcement concerning his December 2016
statement to Ms. Pickerill, in which he warned her to drop the charges against Mr. Byerly
or else, he admitted to making the statement to her and that he had done so at Mr. Byerly’s
request. At trial, Mr. Bohan recanted and testified that Mr. Byerly did not ask him to
deliver the message. In response, the State called Detective Sachse, who had conducted
the recorded interview of Mr. Bohan. Detective Sachse testified to what Mr. Bohan told


                                               29
him, and then the State played a portion of the recorded interview in which Mr. Bohan can
be heard saying that Mr. Byerly asked him to deliver the message to Ms. Pickerill. Trial
counsel did not ask that the entire recorded interview be played for the jury, and Mr. Byerly
points to that decision as his next claim of ineffectiveness.

[¶85] In support of his claim, Mr. Byerly cites our decision in Fennell v. State, 

, 

 (Wyo. 2015), where we held that trial counsel’s failure to ask
that audio tapes of the controlled buys at issue be played in their entirety was ineffective
assistance of counsel. In Fennell, we reached that conclusion because the tapes would have
been helpful in refuting some of the prosecution’s assertions. 

 In Mr. Byerly’s case,
though, we agree with trial counsel that playing the remainder of the Bohan interview
would have done more harm than good.

[¶86] Trial counsel testified:

                     I did ask Mr. Sachse very clearly how long the interview
              was and was very specific that the only time Mr. Bohan said
              Mark sent this message was the one time that was played and
              all other times he adamantly said he did not and Detective
              Sachse agreed with me. That seemed to me a much stronger
              Tim Bohan to present than letting them listen to an interview
              where I think you just feel sorry for Mr. Bohan, even more than
              they already did. That he’s trying not to get his friend in
              trouble.

                     My concern with the interview is that Mr. Bohan
              realized he did something that was getting Mark in trouble and
              it sounds like he’s backpedaling to a large degree. As much as
              I know Mr. Byerly thinks he hears over and over again that Tim
              Bohan says no I didn’t, no I didn’t, no I didn’t, I felt it was
              much stronger to have him say that word for word to the jury
              and not get into any of the nuances of the interview where he
              sounds like he’s trying to help a friend from getting in trouble.

[¶87] Counsel is entitled to “wide latitude” in making “tactical decisions.” Winters v.
State, 

, ¶ 53, 

 (Wyo. 2019) (quoting Strickland, 

, 

). Additionally, we approach claims of ineffectiveness with “a strong
presumption that counsel rendered adequate assistance and made all significant decisions
in the exercise of reasonable judgment.” Winters, ¶ 12, 

 (quoting
Schreibvogel v. State, 

, 

 (Wyo. 2010)). Having listened
to Detective Sachse’s interview of Mr. Bohan, we find that counsel exercised more than
reasonable judgment in not asking that the jury be allowed to hear the entire interview.



                                              30
[¶88] We note that Mr. Byerly does not cite to the interview itself in his argument, but
instead cites to descriptions of the interview from the Rule 21 hearing. Having listened to
the interview, we find that the descriptions do not accurately portray the remainder of the
interview, and we are at a loss to understand why Mr. Byerly would want the jury to hear
the interview in its entirety. First, while Mr. Bohan did deny that Mr. Byerly used firearms
on hunting trips with him, we did not hear him deny that Mr. Byerly asked him to pass
along his message to Ms. Pickerill. The interview lasted about twenty-five minutes, and if
there was a denial in there, we question whether a jury would have caught it. Moreover,
the interview contained a number of statements the admission of which, if not error,
certainly would have been damaging to the defense, including:6

        --Detective Sachse’s question of why Mr. Bohan believes Mr. Byerly would ask
        him to deliver the message in violation of the protective order, and Mr. Bohan’s
        response that Mr. Byerly is desperate, scared, and hating life right now;

        --Mr. Bohan’s statement that Mr. Byerly won’t own up to anything;

        --Mr. Bohan’s statement that Ms. Pickerill shared other incidents with him that he
        had never heard about and Detective Sachse’s response that that is not unusual and
        that it is common for victims of trauma to keep remembering additional incidents
        as time passes;

        --Detective Sachse’s statement that Mr. Byerly won’t man up and take
        responsibility;

        --Mr. Bohan nodding and agreeing with Detective Sachse that Mr. Byerly took
        advantage of him;

        --Mr. Bohan’s statement that he should have talked to a lawyer before speaking with
        Ms. Pickerill; and

        --Detective Sachse’s statement that he knows of no lawyer that would have advised
        Mr. Byerly to have his friend pass a message to Ms. Pickerill.

[¶89] We therefore find no ineffectiveness in trial counsel’s decision not to ask that the
jury hear the entire Bohan interview.




6
 These are not all the statements that we find would have been damaging to the defense, and these are not
direct quotes but rather a close paraphrasing.


                                                    31
9.     Failure to Object to Vouching Statements by Witnesses and Prosecutor

[¶90] Mr. Byerly next claims trial counsel was ineffective in failing to object to the
vouching comments that we addressed in our earlier discussion of his prosecutorial
misconduct claim. Having found vouching in only one comment by the prosecutor and no
prejudice resulting from that comment, we need not address whether trial counsel was
deficient in not objecting and moving to have the remark stricken and the jury instructed
to disregard it.

10.    Failure to Call Witnesses Favorable to the Defense

[¶91] Mr. Byerly next points to the fact that trial counsel filed a pretrial memorandum that
listed thirty-two potential defense witnesses, but she called only two witnesses. Based on
that, he claims trial counsel was ineffective in failing to call additional witnesses.

[¶92] With regard to trial counsel’s decision not to call certain witnesses, we have said:

                     The charge that a defendant was denied effective
              counsel because his attorney did not call witnesses has often
              been raised. The decision not to call witnesses is a strategic
              choice. Amin [v. State,] 811 P.2d [255,] 261-62 [(Wyo. 1991)];
              Laing v. State, 

 (Wyo. 1987). In order to
              successfully show ineffective assistance of counsel, the
              appellant must present the facts about which the proposed
              witnesses would have testified. Campbell [v. State,] 

 [(Wyo.1986)]. The decision whether to call witnesses is
              normally within the judgment of counsel and will rarely be
              second-guessed through appellate hindsight. State v. Onishi, 

, 

 (1981).

Brock v. State, 

, 

 (Wyo. 2012) (quoting Eustice v.
State, 

 (Wyo. 2000)).

[¶93] Mr. Byerly does not identify the witnesses that should have been called or the facts
to which they would have testified and has thus failed to show ineffectiveness in trial
counsel’s decision to limit the number of defense witnesses.

11.    Failure to Introduce Defense Photographs

[¶94] Mr. Byerly next claims that defense counsel was ineffective in failing to have a
strategy to introduce photographs of his injuries. He does not offer an available strategy,
and he supports this claim with only a reference to his Rule 21 motion. We therefore do
not consider the claim further. Davis, 

.


                                              32
12.     Failure to Adequately Investigate or Prepare for Trial

[¶95] Mr. Byerly next claims that defense counsel was ineffective in failing to investigate
and prepare for trial. In support of this claim, he cites the failure to obtain the data
extractions from Ms. Pickerill’s electronic devices, the failure to interview the bartender at
the Mangy Moose, the failure to interview a potential witness named Brian Rutter, and the
failure to discover that one of the seated jurors had a social relationship with Ms. Pickerill
and Mr. Bohan.7

[¶96] Regarding claims of ineffectiveness based on a failure to investigate or interview
witnesses, we have said:

                        A claim of ineffective counsel based on a failure to
                interview witnesses is reviewed as a claim of failure to conduct
                a reasonable investigation. See Duke v. State, 

, 

 (Wyo. 2004) (analyzing Duke’s claim that
                counsel failed to interview any of the State’s witnesses as a
                failure to make reasonable investigation); Gist v. State, 

 (Wyo. 1987) (“The failure to pursue an interview
                of Roger Gist constituted an abrogation of counsel’s duty to
                Steve Gist to conduct a reasonable investigation . . . .”).
                “Counsel has a duty to make reasonable investigations or to
                make a reasonable decision that makes particular
                investigations unnecessary.” Duke, ¶ 55, 

. We
                “assess[] counsel’s performance by considering all of the
                circumstances existing at the time counsel made the
                investigative decision and appl[y] a heavy measure of
                deference to counsel’s judgments in this regard.” 

 “[A]n
                appellant cannot prove ineffective assistance of counsel for
                failure to investigate ‘where an appellant fails to identify the
                favorable evidence or witnesses that additional investigation
                would have revealed.’” Brock v. State, 

, 

 (Wyo. 2012) (emphasis added) (quoting Asch v.
                State, 

, 

 (Wyo. 2003)).

Winters, ¶ 46, 

.

[¶97] Concerning the extent of the defense team’s investigation and preparation for trial,
trial counsel testified:

7
 We addressed the alleged failure of trial counsel to obtain data extractions from Ms. Pickerill’s electronic
devices in one of Mr. Byerly’s earlier ineffectiveness claims and will not do so again here.


                                                      33
              When I look through my records I have over 243 pages of notes
              of interactions with Mr. Byerly. I spent 199.03 hours through
              sentencing on his case.

                      I would venture to guess that there was basically not a
              day that went by that he wasn’t a part of my life once I took
              this case. And I also hired an investigator to both counsel him
              and work with him. Mr. Dugan invoiced me for 149 hours and
              there was an additional 50 hours that he spent and told me that
              he did not ask to have be repaid.

[¶98] Concerning the alleged failure to interview the potential witnesses identified in Mr.
Byerly’s claims, trial counsel testified:

              Q.     All right. Move on here to some of the – kind of come
              back to some, I guess, best way I can describe it discovery
              issues. For instance, an issue initially arose with a potential
              juror on the list, Brian Rutter. Do you recall that?

              A.     From your motion, I do.

              Q.    Okay. And there was an indication that – well, I think
              everyone agreed that Mr. Rutter had in fact been in the Mangy
              Moose on January 20th. Does that sound correct to you.

              A.     I think that’s what he reported. I mean I wasn’t there.

              Q.     Fair enough. And do you recall the state saying that he
              had in fact been interviewed about that?

              A.     I do.

              Q.      Okay. Do you recall Mr. Rutter was actually on the
              state’s witness list?

              A.     I do. Mr. Byerly pointed that out to me, in fact.

              Q.     Okay. Do you recall ever seeing a report of that
              interview with Mr. Rutter?

              A.     No, I did not.



                                               34
              Q.     Did it ever occur to you when the state said we
              interviewed him and talked to him about what he saw and
              didn’t think it would help our case, did that ever make you
              think perhaps he could help yours?

              A.     All that meant to me was that he hadn’t seen anything.
              And, again, in investigations – I think you bring it up with like
              the bartender – sometimes you need to stop when you’re ahead.
              If someone told the cops they didn’t see anything, I’m not
              going to be the one to ask them to reconsider if they really did.

                     And so with both of those – and we did on cross about
              The Mangy Moose at length that nobody saw anything happen,
              that was well testified to on the stand.

[¶99] Concerning the defense team’s investigation and preparation for jury selection, trial
counsel testified:

              Q.     Did you ever learn from the prosecutor who the very
              good friends with Ms. Pickerill were on the jury panel?

              A.     I didn’t learn that from Mr. Dunlap, but that was
              reviewed with Mr. Byerly. So, when we got the jury lists and
              the questionnaires I emailed that to Mr. Byerly, I emailed it to
              Dan Dugan, and I emailed it to Terry Vaughan [the defense
              team’s body language expert]. All of us went through it to see
              if we knew someone, didn’t know someone and we actually
              had a running spread sheet.

                     I don’t know if Mr. Byerly ever asked us specifically,
              where we would [mark] red for good, green for bad or vice
              versa and yellow for let’s do a background check and see what
              we can find out about this person.

                     So, I didn’t learn that information from Mr. Dunlap. I
              learned from Mr. Byerly that we were probably going to have
              a very contested panel of jurors that knew both of them very
              well because of their length of time in the community. And we
              discussed each of the jurors that was on that list as potential
              reasons for bias and why they should be discussed.

[¶100] We find nothing unreasonable in the scope of the defense team’s investigation and
preparation for jury selection and trial. Giving due deference to trial counsel’s tactical


                                              35
decisions, we also find that the decisions regarding which witnesses to interview were
reasonable. In any event, Mr. Byerly makes no effort to show how he was prejudiced by
the failure to interview the two identified witnesses, so his ineffectiveness claim fails on
both prongs.

[¶101] With respect to the seating of a juror whom Mr. Byerly claims had a social
relationship with Ms. Pickerill and Mr. Bohan, Mr. Byerly again makes no effort to show
prejudice. The claim concerns a juror who, during a break in Ms. Pickerill’s direct
examination, reported having met Ms. Pickerill on one occasion and knowing Mr. Bohan
through another friend. He did not know Mr. Bohan’s last name and was unsure if the
“Tim” being discussed was the same one. After the juror confirmed that he had never
discussed the case with either one, neither party requested his removal. Because Mr.
Byerly has not shown that he was prejudiced by failure to challenge this juror, we do not
consider the claim further.

13.    Trial Counsel’s Disparaging Comments During Opening Statement

[¶102] During trial counsel’s opening statement, she said, “I’ll be frank with you, my
client’s not an angel. He’s a womanizer. He’s a recovering alcoholic. And I’m sorry to say
he’s not my most favorite person on the planet.” Mr. Byerly claims trial counsel was
ineffective in making these comments.

[¶103] Trial counsel testified that before trial, she worked with a body language expert,
who expressed concerns that “because of Mr. Byerly’s presence the jury was not going to
care for him and therefore not care for anything that came from the defense attorney or his
side.” She further testified that she talked extensively with Mr. Byerly about the opening
statement, and they had meetings with the investigator and the body language expert about
making the comments. She stated that she understood Mr. Byerly did not like the
comments, but that he deferred to her judgment. Trial counsel explained her strategy in
including the comments:

              [A]s I explained to him, my strategy was that I wanted to air
              the dirty laundry first. . . .

                     I wasn’t – I didn’t know if Michelle was going to get up
              here and try to say, you know, he’s out with all these women
              cheating on me. And there was a lot of alcohol on both parts
              here. So, my strategy in saying that was no one ever thinks a
              defense attorney is going to tell them the truth. The perception
              from the jury is that defense attorney is going to hide
              everything I really need to see and they’re going to look to Mr.
              Dunlap for the authority on what’s real. And the strategy in



                                              36
              that was to come out and say, no, our side is telling you the
              truth. I’m going to be real up front with you in the beginning.

[¶104] Giving the required deference to trial counsel’s tactical decisions, and considering
the circumstances, we find nothing unreasonable in counsel’s approach to the opening
statement.

14.    Failure to File Motions for Judgment of Acquittal and New Trial

[¶105] For his final ineffectiveness claim, Mr. Byerly contends that trial counsel was
deficient in failing to file a motion for judgment of acquittal and a motion for new trial.
We will address each claim separately.

a.     Motion for Judgment of Acquittal

[¶106] Concerning motions for judgment of acquittal, we have said:

                     In reviewing the denial of a motion for judgment of
                     acquittal, we examine and accept as true the evidence of
                     the prosecution together with all logical and reasonable
                     inferences to be drawn therefrom, leaving out entirely
                     the evidence of the defendant in conflict therewith.
                     A motion for judgment of acquittal is to be granted only
                     when the evidence is such that a reasonable juror must
                     have a reasonable doubt as to the existence of any of the
                     essential elements of the crime. Or, stated another way,
                     if there is [sufficient] evidence to sustain a conviction
                     of the crime, the motion should not be granted. This
                     standard applies whether the supporting evidence is
                     direct or circumstantial.
                     Butcher v. State, 

, 

                     (Wyo. 2005).

              Bruce v. State, 

, ¶ 52, 

 (Wyo.
              2015). In other words, “[o]ur duty is to determine whether a
              quorum of reasonable and rational individuals would, or even
              could, have come to the same result as the jury actually did.”
              Wilkerson v. State, 

, 

              (Wyo. 2014) (citations omitted).

Kite v. State, 

, ¶ 35, 

 (Wyo. 2018) (quoting Pearson v. State,

, 

 (Wyo. 2017)).


                                             37
[¶107] In arguing trial counsel should have moved for a judgment of acquittal, Mr. Byerly
does not adhere to the manner in which such a motion would have been considered by the
district court. Instead of accepting the State’s evidence as true, including all of Ms.
Pickerill’s testimony, and giving it all logical and reasonable inferences, as the district court
would have done had it ruled on such a motion, he dissects the State’s evidence, points to
inconsistencies, and argues against the credibility of the evidence. Because he has not
applied the standard that would have governed a motion for judgment of acquittal, he has
not shown any deficiency in trial counsel’s decision not to file the motion.

b.     Motion for New Trial

[¶108] In support of his claim that trial counsel was ineffective in failing to file a motion
for new trial, Mr. Byerly cites our decision in Ken v. State, 

, 

(Wyo. 2011). His reliance on Ken is misplaced. In that case, we found ineffective
assistance not because trial counsel failed to move for a new trial but because he filed an
untimely motion.

              The parties in the present case stipulated that defense counsel
              filed the motion for new trial after the time for filing such a
              motion had expired. While a motion for new trial is not
              required in every case, in cases where one is filed it must be
              filed within the time permitted by the rules. Not filing a new
              trial motion within the time permitted constitutes a failure to
              exercise the customary skills and diligence that a reasonably
              competent attorney would exhibit under similar circumstances
              and is a dereliction of an attorney’s obligation to provide his
              client with the type of performance required by the Sixth
              Amendment.

Ken, ¶ 29, 

 (emphasis added).

[¶109] We found prejudice in Ken because, in ruling on the defendant’s Rule 21 motion,
the trial court found that it would have granted the motion for a new trial had it been timely
filed. Ken, ¶ 31, 

. In Mr. Byerly’s case, we do not have an untimely filing
of a new trial motion, and the district court gave no indication in its Rule 21 ruling that it
would have granted such a motion.

[¶110] Mr. Byerly’s argument does not otherwise support his ineffectiveness claim. He
does not simply argue the weight of the evidence. He also intertwines argument about
additional claimed deficiencies in trial counsel’s performance. For example, he suggests
counsel was deficient for failing to object to the evidence in support of conviction, conduct
proper cross-examination, limit or restrict evidence as improper expert testimony, and for


                                                38
failing to recognize disconnects in evidence and failing to pin down where certain offenses
occurred. All of these arguments are unsupported by any type of ineffectiveness analysis
or citation to authority, and with only limited citation to the record as opposed to improper
citation to his Rule 21 filings. We are unwilling to wade through the confusion created by
this approach and the failure to properly structure the argument for our resolution. See
Bohling v. State, 

, 

 (Wyo. 2017) (“We decline to
consider this issue. It is vague and undefined and, to the extent we can decipher the
argument, it is not supported by any cogent argument or authority.”) (quoting Willey v.
Willey, 

, 

 (Wyo. 2016)). We therefore reject Mr.
Byerly’s claim that trial counsel was ineffective in failing to move for a new trial.

V.     Joinder of Claims for Trial

[¶111] Mr. Byerly contends that the district court erred in joining Counts 11 and 12 with
the earlier charges for trial. Because he did not object to the State’s motion to join or to
the court’s order joining the charges for trial, he has waived appellate review of the order,
and we do not consider the claim. See Rodriguez v. State, 

, ¶ 27, 

 (Wyo. 2019) (citing Cox v. State, 

 (Wyo. 1998)) (appeal
waived by failure to file pretrial motion to sever offenses).

VI.    Denial of Daubert Hearing

[¶112] Mr. Byerly contends that the district court erred in denying his request for a Daubert
hearing on the State’s domestic violence expert. In support of this argument, he cites only
to the Daubert two-part test for admissibility of expert testimony and our adoption of that
approach. He otherwise offers no legal analysis of his claim with proper citation to the
record. We therefore do not consider his argument. Osban, ¶ 7 n.2, 

 n.2
(“An appellant is required to present this court with relevant authority and cogent
argument. It is not enough to identify a potential issue with the expectation that this court
will flesh out the matter from there. The appellant, at a minimum, must attempt to relate
the rule of law he depends upon to the facts of his case.”).

VII.   Cumulative Error

[¶113] Mr. Byerly does not support his cumulative error argument with cogent argument.
In any event, we found only one trial error in the single incident of prosecutorial
misconduct, and no prejudice from the comment. We therefore have no need to undertake
a cumulative error analysis.

[¶114] Affirmed.




                                              39
BOOMGAARDEN, Justice, specially concurring, in which KAUTZ, Justice, joins.

[¶115] I agree with the majority that the convictions should be affirmed. I write separately
because I disagree with the majority’s conclusion that the prosecutor violated a clear and
unequivocal rule of law in a “clear and obvious, not merely arguable way” when he thanked
the victim for her testimony on direct examination, stating: “Ms. Pickerill, I know it’s been
a very long day and I know this is hard to go back through. I appreciate your candor and
your diligence.” This conclusion suggests that if a word—in this case “candor”—can be
defined to include “honesty,” then a prosecutor’s use of that word constitutes vouching.
Our precedent requires that we consider a prosecutor’s statement in context before
concluding that it amounts to improper vouching.

[¶116] The majority focuses on the fact that the word “candor” may mean “honesty,”
apparently defining that word in the light most favorable to Mr. Byerly. As the majority
acknowledges, however, “candor” supports a broader definition. Black’s Law Dictionary
defines “candor” as “[t]he quality of being open, honest, and sincere; frankness;
outspokenness.” Black’s Law Dictionary 255 (11th ed. 2019). The Merriam Webster
Dictionary defines it as “frankness, outspokenness.” The Merriam Webster Dictionary 70
(2005). The word “frank” means “marked by free, forthright, and sincere expression.” Id.
at 197. And “outspoken” means “direct and open in speech or expression.” Id. at 353.
The online version of that same dictionary defines “candor” as “unreserved, honest, or
sincere expression” and “freedom from prejudice or malice.” Merriam-Webster,
https://www.merriam-webster.com/dictionary/candor (last visited Dec. 10, 2019).

[¶117] Prosecutors may not personally vouch for the credibility of witnesses because,
among other reasons not relevant here, “the prosecutor’s opinion carries with it the
imprimatur of the Government and may induce the jury to trust the Government’s judgment
rather than its own view of the evidence.” United States v. Young, 

, 18–19, 

, 

 (1985) (citation omitted); Williams v. State, 

, 

 (Wyo. 2002). We should not deem this rule to be violated simply
by virtue of the prosecutor’s word choice. Nor should we extend this rule to preclude a
prosecutor’s use of any word or phrase that might connote “honesty.” We must instead
consider the meaning of any given word or phrase in the context in which it was used in
order to determine whether a prosecutor “personally vouch[ed] for” the victim’s credibility.
See, e.g., Dixon v. State, 

, ¶ 49, 

 (Wyo. 2019) (“Read in
context, however, it is evident the statements do not invade the province of the jury.”);
Larkins v. State, 

, ¶ 95, 

 (Wyo. 2018) (citations omitted)
(“When a defendant asserts that the State committed prosecutorial misconduct, we review
the entire argument, and do not isolate discrete parts of the argument that may be taken out
of context.”); King v. State, 

, ¶ 11, 

 (Wyo. 2018) (citations
omitted) (“Where the prosecutorial misconduct claim is one of improper argument, we are
required to consider the challenged statement in the context of the entire closing
argument.”); Buszkiewic v. State, 

, ¶ 19, 

 (Wyo. 2018)


                                              40
(citations omitted) (“[I]n evaluating whether a prosecutor actually expressed her personal
beliefs or opinions to the jury, we have to consider the statements in context.”); Black v.
State, 

, 

 (Wyo. 2017) (“Certainly, counsel should
have chosen his words more carefully, but in context his statements were not personal
attacks on defense counsel.”).

[¶118] Certainly, as “a minister of justice,” the prosecutor had no reason to thank this
particular witness nor comment on the nature of her testimony. Wyoming Rule of
Professional Conduct 3.8, Comment 1. His statement to Ms. Pickerill does not warrant a
stamp of approval. After reviewing Ms. Pickerill’s direct examination in context, however,
I cannot conclude that the prosecutor clearly and obviously commented on Ms. Pickerill’s
truthfulness. Rather, in this single instance, after questioning the victim-witness, the
prosecutor arguably thanked Ms. Pickerill, not for her honest testimony, but rather for her
frank and outspoken testimony because she had just testified at length about some very
personal and difficult matters concerning her relationship with Mr. Byerly.8 In this context,
the prosecutor’s statement did not create an overt risk that the jury would trust the
prosecutor’s judgment rather than its own assessment of the evidence and the victim’s
credibility. Accordingly, it cannot be said that the prosecutor violated the vouching rule in
any clear and obvious way.




8
 This interpretation is bolstered by the testimony of Mr. Byerly’s trial counsel at the W.R.A.P. 21 hearing.
When asked whether he objected to the prosecutor’s statement, Mr. Byerly’s trial counsel responded:

                I did not. And I don’t believe that when I heard candor -- I see that you’re
                trying to argue that has to go with truthfulness, that’s the definition of
                candor. My impression was simply that he was thanking her for the details
                she provided. But I’ll leave that to the judge to interpret.

Trial counsel heard the prosecutor’s statement first-hand, in context.


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