James Neil Todd v. The State of Wyoming

Opinion

THE SUPREME COURT, STATE OF WYOMING

2026 WY 92

APRIL TERM, A.D. 2026

August 18, 2026

JAMES NEIL TODD,

Appellant (Defendant),

v. S-25-0310

THE STATE OF WYOMING,

Appellee (Plaintiff).

Appeal from the District Court of Campbell County The Honorable Thomas T.C. Campbell, Judge

Representing Appellant:

Office of Public Defender: Patricia L. Bennett, State Public Defender;* Kirk A. Morgan, Chief Appellate Counsel; Dina F. Hardwick, Assistant Appellate Counsel. Argument by Ms. Hardwick.

Representing Appellee:

Keith G. Kautz, Attorney General; Jenny L. Craig, Deputy Attorney General; Kristen R. Jones, Senior Assistant Attorney General; Alex Wendlandt, Assistant Attorney General. Argument by Mr. Wendlandt.

*An Order substituting Patricia L. Bennett for Brandon Booth was entered on April 15, 2026.

Before BOOMGAARDEN, C.J., and GRAY, FENN, JAROSH, and HILL, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

FENN, Justice.

[¶1] A jury convicted James Neil Todd of one count of attempted sexual exploitation of a child. On appeal, Mr. Todd argues the evidence was insufficient to support his conviction and the district court erred when it declined to give his proposed jury instruction defining the term lascivious. We affirm.

ISSUES

[¶2] Mr. Todd raises two issues, which we rephrase as follows:

I. Did the State present sufficient evidence at trial to support Mr. Todd’s conviction for attempted sexual exploitation of a child?

II. Did the district court abuse its discretion when it declined to give Mr. Todd’s proposed jury instruction defining the term “lascivious”?

FACTS

[¶3] On February 28, 2024, KF was shopping at Walmart with her infant daughter and five-year-old son, TF. TF needed to use the restroom, so KF took him to the nearest one, which happened to be located at the back of the store. KF waited outside while TF went into the men’s restroom. Approximately 10–20 seconds later, an older man, later identified as Mr. Todd, went into the men’s restroom. A Walmart associate entered the restroom approximately 30 seconds after Mr. Todd. Mr. Todd exited the restroom first. TF came out of the restroom a few seconds later and told KF that Mr. Todd had asked TF if he wanted to touch Mr. Todd’s “wiener.”

[¶4] After TF told KF what happened in the restroom, she sought the assistance of a Walmart manager. Acting on the manager’s advice, KF called 911. KF told the dispatcher what TF said happened in the restroom. While on the phone with 911, KF attempted to find Mr. Todd and keep him from leaving the store until the police arrived. When she found Mr. Todd, she confronted him saying: “You, you were the one who asked my son to touch your wiener in the bathroom.” Mr. Todd denied the allegations, saying he had just been in the restroom “pissing.” Mr. Todd then “sped walk[ed] away,” went to the selfcheckout on the opposite side of the store, paid for his items, and left.

[¶5] KF asked the manager to follow Mr. Todd out of the store, so she could relay any helpful information to law enforcement. The manager saw Mr. Todd get into a vehicle. Mr. Todd’s vehicle information was conveyed to law enforcement. Officers quickly located Mr. Todd’s vehicle and pulled him over.

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[¶6] When the officers explained why they had pulled him over, Mr. Todd denied ever asking TF to touch his penis, and he claimed the child may have misunderstood what occurred in the restroom. Mr. Todd stated he had walked into the restroom with his penis exposed prior to entering a stall, and the child may have seen it. Mr. Todd explained he had pulled his penis out of his pants because he needed to urinate urgently, and he did not want to soil his pants. He initially walked into one of the stalls, but decided it was not sanitary enough to use, backed out while still holding his penis, and walked to a urinal. While he was walking to the urinal, he saw a young child standing near the sink. He looked at the child, while still holding his exposed penis, and said something like “[H]ow’s it going?” or “[W]hat’s up?” Mr. Todd then used a urinal and left the restroom. Mr. Todd said he had an operation three years earlier that caused him to have a condition where when he needed to urinate, he would have to go immediately. However, Mr. Todd also stated he had not had the opportunity to use the restroom when he got off work, and even though he had been holding his bladder for approximately 45 minutes, he did not use the restroom immediately upon arriving at Walmart. Mr. Todd told the officer he wanted to use a stall instead of a urinal because he was afraid of a child seeing him exposed in the bathroom and making false allegations, which had happened to some of his friends in the past.

[¶7] When another officer interviewed TF at Walmart, the child informed him that he was approached by an older gentleman who had his penis in his hand, and the man asked TF if he wanted to “touch it.” TF told the officer he had said, “No thanks” to Mr. Todd. The officer also spoke with the Walmart associate who had been in the bathroom during part of the incident. The associate told the officer he saw a man and a child in the restroom, near the urinals. The associate was not paying much attention because he was on his phone. The associate thought the man and boy were related because they were standing close together. He told the officers he did not see anything unusual or illegal. Because of the statements Mr. Todd made to the officers who performed the traffic stop, the officers who responded to Walmart inspected the condition of the bathroom; they did not find either stall to be unusable due to “cleanliness issues.”

[¶8] The State charged Mr. Todd with one count of attempted sexual exploitation of a child. Specifically, the State alleged Mr. Todd did “knowingly attempt, cause, induce, entice or coerce a child to engage in, or be used[] for[,] explicit sexual conduct, to wit: exposed his penis and asked [TF], a child under 18 years of age, if he wanted to ‘touch it[.]’” A three-day jury trial was held beginning on May 20, 2025. The jury found Mr. Todd guilty of this charge. The district court sentenced Mr. Todd to five–eight years in prison, suspended in lieu of a split-sentence of 365 days in jail and three years of supervised probation. This appeal timely followed.

DISCUSSION

I. The State presented sufficient evidence to sustain Mr. Todd’s conviction.

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[¶9] “When reviewing whether the State presented sufficient evidence to support a conviction, ‘we determine whether a jury could have reasonably concluded each of the elements of the crime was proven beyond a reasonable doubt.’” Mayeux v. State, 2026 WY 43, ¶ 22, 587 P.3d 535, 542 (Wyo. 2026) (quoting Thunder v. State, 2023 WY 74, ¶ 7, 533 P.3d 175, 177 (Wyo. 2023)). “In making this determination, we examine the evidence in the light most favorable to the State, disregard any evidence favorable to the defendant that conflicts with the State’s evidence, and do not reweigh the evidence or reconsider the credibility of the witnesses.” Id. To the extent the resolution of this case involves a question of statutory interpretation, we apply a de novo standard of review. Id. at ¶ 14, 587 P.3d at 540 (citing Bernal-Molina v. State, 2021 WY 90, ¶ 8, 492 P.3d 904, 907 (Wyo. 2021)). “In interpreting a statute, ‘we seek the legislature’s intent as reflected in the plain and ordinary meaning of the words used in the statute,’ giving effect to every word, clause, and sentence.” Id. (quoting Bernal-Molina, ¶ 13, 492 P.3d at 908).

[¶10] Mr. Todd asserts “[t]he State’s main theory depended on proving that Appellant’s conduct constituted a lascivious exhibition of his genitals within the statutory definition of explicit sexual conduct[,]” and the evidence was insufficient to show “a brief, non-erect exposure in a public restroom” met this definition. The State asserts it “did not have to prove [Mr.] Todd performed a lascivious exhibition of his genitals because the charge included alternative methods of committing the crime, such as masturbation, and evidence that is sufficient to constitute either is sufficient.”

[¶11] Both Mr. Todd’s argument, and to a lesser degree the State’s argument, are flawed because they focus on whether the exhibition of Mr. Todd’s genitals was lascivious. Instead, the question this Court must decide is whether the type of conduct Mr. Todd attempted to entice or induce TF to “engage in” or “be used for” meets the statutory definition of explicit sexual conduct. See Craft v. State, 2012 WY 166, ¶¶ 10–18, 291 P.3d 306, 309–11 (Wyo. 2012) (evaluating whether the photos the defendant induced the victim to send him amounted to a lascivious exhibition of the child’s genitals or pubic area within the definition of explicit sexual conduct)1; Adams v. State, 2005 WY 94, ¶¶ 10–13, 117 P.3d 1210, 1215 (Wyo. 2005) (discussing whether the evidence established the defendant intended to entice or encourage a minor to engage in explicit sexual conduct). Under the plain language of the statute, “[a] person is guilty of sexual exploitation of a child if, for any purpose, he knowingly . . . [c]auses, induces, entices or coerces a child to engage in, or be used for, any explicit sexual conduct[.]” Wyo. Stat. Ann. § 6-4-303(b)(ii) (2023) (emphasis added). Explicit sexual conduct is defined as: “actual or simulated sexual intercourse, including genital-genital, oral-genital, anal-genital or oral-anal, between

1 In Craft, the defendant sent the victim a picture of his exposed penis. 2012 WY 166, ¶ 7, 291 P.3d at 309. However, that conduct did not form the basis for the sexual exploitation charge. Rather, it was the pictures the defendant enticed the victim to send to him that resulted in him being charged with sexual exploitation of a child under Wyoming Statute § 6-4-303(b)(i). Id. at ¶ 10, 291 P.3d at 309.

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persons of the same or opposite sex, bestiality, masturbation, sadistic or masochistic abuse or lascivious exhibition of the genitals or pubic area of any person[.]” Wyo. Stat. Ann. § 6- 4-303(a)(iii). To convict a defendant under this statute, the State must prove the accused caused, induced, enticed, or coerced a child to “engage in” or “be used for” one or more of the acts that fall within the definition of explicit sexual conduct.

[¶12] From the beginning of this case, the State has alleged Mr. Todd asked TF to touch Mr. Todd’s exposed penis. At the jury instruction conference, the State reiterated its theory of the case involved allegations that Mr. Todd asked TF to touch Mr. Todd’s penis, which the State believed could fall under either lascivious exhibition, sadistic abuse, or attempted masturbation. During closing arguments, the State said:

Now let’s go to the very heart of this. The allegation of this case, and you heard it from [TF’s] mouth, is that he saw a man’s wiener and that that man whom has been identified in this courtroom, asked him whether he wanted to touch his penis. The State submits that that is a substantial step towards committing the crime of enticing that child to engage in explicit sexual conduct. I could have charged this without the attempt, but you heard from [TF], he said “No.” So he may have enticed him too, [sic] but [TF] didn’t engage is what he told you. So he attempted to entice a child. That’s what we have here. An attempt to knowingly entice a child for any reason to engage in explicit sexual conduct.

On appeal, the State again argues this conduct falls within the definition of masturbation, which is specifically included in the statutory definition of explicit sexual conduct.

[¶13] The word masturbation is not defined in Wyoming Statute § 6-4-303(a). When a term is not defined in a statute, we assume the legislature did not mean for the term to have a specialized meaning, and we apply its common definition. Schuerman v. State, 2022 WY 160, ¶ 15, 522 P.3d 145, 149 (Wyo. 2022) (citing Bernal-Molina, 2021 WY 90, ¶ 17, 492 P.3d at 909; Marfil v. State, 2016 WY 12, ¶ 25, 366 P.3d 969, 975–76 (Wyo. 2016)). The American Heritage Dictionary defines “masturbation” as: “[e]xcitation of one’s own or another’s genital organs, usually to orgasm, by manual contact or means other than sexual intercourse.” Masturbation, The American Heritage Dictionary of the English Language (5th ed. 2022), https://www.ahdictionary.com/word/search.html?q=masturbation.

[¶14] When reviewing the sufficiency of the evidence, we assume the jury believed only the evidence adverse to the defendant because they found the defendant guilty beyond a reasonable doubt. Aune v. State, 2024 WY 137, ¶ 23, 560 P.3d 910, 916 (Wyo. 2024) (quoting Munoz v. State, 2024 WY 103, ¶ 8, 556 P. 3d 238, 240 (Wyo. 2024)). Therefore, we assume the jury believed TF’s testimony that Mr. Todd asked the child to touch his

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exposed penis. Based on this evidence, the jury could reasonably have found Mr. Todd tried to cause, induce, or entice TF to excite Mr. Todd’s genital organs through manual contact. Had TF done so, this would have constituted masturbation, which falls within the statutory definition of explicit sexual conduct. Wyo. Stat. Ann. § 6-4-303(a)(iii).

[¶15] Although we need not decide if Mr. Todd committed a lascivious exhibition of his genitals, the exposure of his genitals is not completely irrelevant to the charge in this case. Because TF declined Mr. Todd’s request, the State charged Mr. Todd with attempting to commit sexual exploitation of a child. Wyoming Statute § 6-4-303 does not separately criminalize an attempt to commit the crime of sexual exploitation of a child, so the general attempt statute, Wyoming Statute § 6-1-301 (2023), applies. Adams, 2005 WY 94, ¶¶ 11– 12, 117 P.3d at 1215. To prove attempted sexual exploitation of a child, the State had to show Mr. Todd: 1) had the intent to commit the crime of sexual exploitation of a child; and 2) he did any act that was a substantial step toward committing that crime. Wyo. Stat. Ann. § 6-1-301(a)(i). “A ‘substantial step’ is conduct which is strongly corroborative of the firmness of the person’s intention to complete the commission of the crime[.]” Id. In this case, the evidence shows Mr. Todd performed a substantial step toward committing sexual exploitation of a minor by exposing his penis and asking TF to touch it. Although the State had to prove Mr. Todd took a substantial step, which in this case was the exposure of his genitals, it did not have to prove that such an exposure constituted a lascivious exhibition. Mr. Todd’s exposure was part of his attempt to entice TF to engage in masturbation, which does fall within the definition of explicit sexual conduct.

[¶16] The State presented sufficient evidence to establish Mr. Todd took a substantial step toward causing, inducing, or enticing a child to engage in or be used for explicit sexual conduct, namely, masturbation. The State presented sufficient evidence to sustain Mr. Todd’s conviction for attempted sexual exploitation of a child.

II. The District Court did not abuse its discretion by declining to give Mr. Todd’s proposed jury instruction defining the term “lascivious.”

[¶17] Mr. Todd asserts the district court’s “refusal to define ‘lascivious’ as it describes ‘exhibition’ . . . constitutes an independent instructional error.” He asserts the district court was required to instruct the jury on the ordinary, common dictionary definition of lascivious in relation to exhibition this Court “adopted” in Craft, 2012 WY 166, ¶ 14, 291 P.3d at 310. This argument is premised on Mr. Todd’s mistaken assumption that the State was required to establish he engaged in a lascivious exhibition of his genitals before it could convict him of attempted sexual exploitation of a child. As discussed above, the State was not required to make such a showing.

[¶18] Although there were no allegations that Mr. Todd attempted to get TF to engage in or be used for a lascivious exhibition of the child’s genitals or pubic area, both the State and Mr. Todd sought to keep lascivious exhibition in the jury instruction defining explicit

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sexual conduct when other terms, like bestiality, were removed from that definition during the jury instruction conference. The district court left lascivious exhibition in the definition of explicit sexual conduct at the request of both parties. Mr. Todd asserts the district court was then required to further define lascivious “as it described exhibition,” and declining to give his proffered instruction defining that term amounted to “a failure to define an essential element . . . under binding precedent . . . .” We conclude the district court was not required to give Mr. Todd’s proffered instruction.

[¶19] We review the district court’s decision to refuse Mr. Todd’s proffered instruction for an abuse of discretion. Bernal-Molina, 2021 WY 90, ¶ 8, 492 P.3d at 907 (citation omitted). “We will not reverse if the instructions correctly stated the law and collectively covered the relevant issues.” Id. “Because the purpose of jury instructions is to provide guidance on the applicable law, prejudice results when the instructions confused or misled the jury.” Id. (citation omitted). “Words in jury instructions are to be given their plain and ordinary meaning unless otherwise indicated. When terms in a jury instruction are to be given their plain and ordinary meaning, there is no need to supply a definition.” McEuen v. State, 2017 WY 15, ¶ 27, 388 P.3d 779, 785 (Wyo. 2017) (citation modified). While not required, a trial court has the discretion to define a term or phrase for the jury even though it does not have “a definite, technical meaning under the law which is different from the ordinary meaning.” Bernal-Molina, ¶ 18, 492 P.3d at 910 (quoting Lane v. State, 12 P.3d 1057, 1062 (Wyo. 2000)). “[W]hen reviewing claims of error involving jury instructions, the district court is afforded significant deference.” Dougherty v. State, 2016 WY 62, ¶ 14, 373 P.3d 427, 432 (Wyo. 2016) (citation omitted).

[¶20] In this case, the district court considered giving Mr. Todd’s proposed instruction, which was based on the definition of lascivious that was used by this Court in Craft when determining whether the State presented sufficient evidence to show the exhibition at issue in that case fell within the conduct prohibited by Wyoming Statute 6-4-303(b)(i). 2012 WY 166, ¶¶ 14–18, 291 P.3d at 310–11. However, in this case, the district court believed giving that definition could confuse the jury and ultimately concluded it was unnecessary. We agree.

[¶21] Although we used the definition offered by Mr. Todd in Craft, we did not say such a definition should or must be given in future cases. Id. In the years since our decision in Craft was issued, the legislature has not amended Wyoming Statute § 6-4-303 to give lascivious a technical meaning. Because the term remains undefined, it is still to be given its plain and ordinary meaning. McEuen, 2017 WY 15, ¶ 27, 388 P.3d at 785. There was no need for the district court to supply a definition, even one that had previously been used by this Court in another case. See, e.g., Lane, 12 P.3d at 1062 (“Although some trial courts may choose to define [a] phrase in their instructions to juries, [when] it is not an essential element that has a definite, technical meaning under the law which is different from the ordinary meaning . . . the trial court [i]s not required to define it.”).

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[¶22] Because the legislature has provided no indication that lascivious requires any special definition, Mr. Todd failed to show the district court abused its discretion when it declined to give an instruction defining that term.

CONCLUSION

[¶23] The State presented sufficient evidence to sustain Mr. Todd’s conviction for attempted sexual exploitation of a child. The district court did not abuse its discretion by declining to give Mr. Todd’s proffered jury instruction defining the term lascivious. Affirmed.