by Angus M. Thuermer, Jr.
The judge in an upcoming corner-crossing criminal trespass trial decided Thursday to limit the use of, but not bar entirely, a body-cam video that shows law officers discussing with a ranch manager potential charges against four Missouri hunters.
Prosecutors sought to prohibit playing the video for the jury, saying the officers were discussing aspects and interpretations of trespassing laws that are the province of the court alone. Carbon County Circuit Court Judge Susan Stipe agreed to part of that request.
Four Missouri hunters have pleaded not guilty to the trespass charges and contend they stepped from one piece of public land to another — at the intersection of two public and two private sections — without setting foot on private property. The case involves the checkerboard pattern of land ownership in parts of Carbon County where private and public land are interspersed.
The cases hinge on whether a person passing through the airspace above a private piece of land is trespassing, and their outcomes may impact public access to millions of acres of public land in the West.
Stipe agreed Thursday that playing the entire 16-minute video would not be allowed and that the discussion on it “would likely not be useful to the jurors.” But portions of it could be used by defense attorneys, Stipe said, if they want to employ it to challenge witness statements given by law-enforcement.
Essentially, if the video contradicts what officers testify to in court, defense attorneys could play relevant portions of it to challenge the officers’ statements in front of the jury.
The video is “not going to be played unless certain portions are necessary in impeachment,” Stipe said during a two-hour motions hearing in Rawlins.
Attorneys will confer again Monday regarding jury instructions and other unsettled elements of the case before it is presented at a trial scheduled to begin Wednesday. Lawyers at Thursday’s motions hearing did not discuss any potential delay of the trial. The judge had mulled a delay last week saying she worried that a related civil suit in federal court might undermine the criminal trespass case before her.
Eshelman on witness list
The trial against Phillip G. Yeomans, Bradly H. Cape, John W. Slowensky and Zachary M. Smith is scheduled to begin in Rawlins starting Wednesday. The case is based on an incident in 2021. Three might face an alternative charge of trespassing to hunt involving a similar alleged corner-crossing incident in 2020.
The court has set aside two days for the matter. Criminal trespass carries a penalty of up to $750 and six months in jail upon conviction.
[The video is] not going to be played unless certain portions are necessary in impeachment.
Carbon County Circuit Court Judge Susan Stipe
The men are charged with trespassing on the ranch owned by Iron Bar Holdings and Fred Eshelman, a North Carolina resident, businessman, conservationist, philanthropist and donor to conservative political causes who made millions in the pharmaceutical business. Eshelman is listed as a potential witness, according to discussion at Thursday’s hearing.
He could testify to ownership of the Elk Mountain Ranch, a legal element that Stipe called “hurdle number-one” in the prosecution’s case against the hunters. But establishing that ownership typically requires testimony from someone other than the owner himself, Stipe said.
She agreed to allow Eshelman’s attorney, Gregory Weisz, to present evidence of ownership, boundaries and easements if he limits his testimony to those topics and not interpretations of trespass laws. Weisz also represents Eshelman in the parallel civil suit in federal court.
All the attorneys involved could instead agree to stipulate that Iron Bar and Eshelman own the property in question, Stipe said.
Attorneys debated several other aspects of the trial, including whether the jury would be considering a specific incident of alleged trespassing or the defendants’ numerous actions over a period of days — perhaps even over two years — and at different locations. Defense attorney Patrick Lewallen said the prosecution’s quest to allege trespass across a broad geographic range and expansive period was a “shotgun approach” that would allow “a potential of 280 combinations” of circumstances to reach a potential conviction.
Stipe told prosecutors they had to limit their case, at this time, to one incident.
Attorneys also sparred over what’s known as Rule 404(b) — the use of a defendant’s previous “crimes, wrongs or acts” — to establish the defendant’s character. Prosecutors could bring up, for example, allegations that three of the four defendants corner-crossed in the same area in 2020.
Stipe and the attorneys did not resolve all the issues Thursday. Some of the many machinations could play out at the conference Monday. Many could be settled only during the trial as they may arise, the judge indicated.
The jurors should be given full view of this video as it’s so damning and telling of the attitude of these rich landowners and their flunky staff. This will be good grounds for appeal if need be but doubt it will be needed when a common sense Wyoming jury laughs these out of state landowners back to Timbuktu.
Woody had it right when he penned This land is your land.
It is unreasonable for private landowners to prevent access to property owned by all U S citizens. Stop the Steal.
There is no criminal trespass here. “A person is guilty of criminal trespass if he enters or remains on or in the land or premises of another person, knowing he is not authorized to do so.” Regardless of whether the air above constitutes the “land or premises” of the so-called “rancher,” or even whether it was “entered,” the knowledge element is quite apparently missing. The mere fact that there is a legitimate dispute as to what is permitted in corner crossing defeats the criminal charge. If it is reasonably possible that the hunters believed they were authorized to corner cross in the manner they did, without setting foot on the property, then the State’s proof of the element that each hunter knew he was unauthorized to do so fails. Without that element there is no criminal trespass.
Not only that, when a landowner tried, as here, to enlist a pliable prosecutor in using Wyoming’s criminal trespass statute to gain an advantage, the Tenth Circuit Court of Appeals threw out the conviction and explicitly ruled that Wyoming’s criminal trespass statute cannot be used to gain an advantage in a civil dispute over property rights. United States v. Miller, 659 F.2d 1029, 1030 (10th Cir. 1981). The court explicitly prohibited such shenanigans. Isn’t that exactly what is going on here.
Unless there is some undisclosed evidence that these hunters believed all along that what they were doing was unauthorized (and that is dispelled by what they did, how they did it, and even by how law enforcement responded –which makes the video evidence of the exchange relevant), I am at a loss to explain why this case was brought and how it got this far. The very notion that they “concocted a plan” to avoid a fence (if there was one) in a manner that avoided touching the “rancher’s” property, thereby avoiding what they knew was unauthorized, exonerates them completely.
Regardless of how the access rights issues are interpreted and ultimately determined, it is plain wrong to charge individuals with crimes –threatening their very liberty in these circumstances. No one should have to suffer the expense, indignity, and yes, fear of fine and imprisonment, over what the correct interpretation of the corner crossing rule ought to be. Finding the correct legal answer in these circumstances is the exclusive domain of civil dispute litigation.
Perhaps it is time to make a designated crossing path in these corners with the signage paid for jointly by ranchers and hunting groups.
If the ranch owns the air above it could mean the ranch could sue airlines for trespassing also. There are laws preventing blockage of access to public land. These hunters did no damage to the ranch. This lawsuit should have been thrown out from the beginning. The hunters should win and get to sue the ranch for legal fees and time for lost wages. If they loose it mesns the judge was bought off.
Mr. Travitz,
How do you know there were no damage’s?
Mr. Hill. What physical damages could there really be from crossing a fence? Little stretched wire? Old fence post busted off? Foot prints in the dirt? Now that said. I doubt the feild Forman and wildlife officers walked in like the hunters did. Cattle do far more damages to stream beds and over grazing then hunters do. Also if I am not mistaken the cattle are to be off the grazing rights by Labor Day I believe. That is NEVER ENFORCED by Division of Wildlife or Feds. And should be. The agency’s do flyovers over game count on regular bases. Enforce that issue.
I fail to understand how landowners who most likely lease these large tracks of land from the BLM can not allow the public to gain access to THEIR LAND. The lease system was set up in the early to mid 1900s and is nothing but a cash cow for those holding the leases.. There is no competitive bidding allowed, the rent fees are ridiculously low, and most ranchers have held the leases for many decades if not more and the lease is transferred when the property is sold….. Time to stop this abuse of the public by this practice…. At the very minimum there should be a provision in the lease that allows a public right of away on the private property that is in proximity to the public land.. Public land policy should reflect best use of the land in ALL OF THE PUBLICS INTERESTS.. The rancher can lease the land and the public can access the public land……that is fair and reasonable.
So if we fly over the private property does that mean we are also trespassing? If the rancher is saying that he owns the air space above his land he better be going after the big airlines!
If an individual did not own the airspace above their property, buildings, fences, flag poles etc. could not be erected, nor could you plant a tree.
Federal law and State of Wyoming Statute both give landowners the ownership of the airspace above their property “up to the right of flight”.
I am at a loss to understand this. Surely the land owner whose land was stepped over does not own the air, but that sure sounds like the basis of this lawsuit if the hunters did not step on the land itself. How can they keep people from going on public land? I neither hunt nor ranch, but I do have neighbors where I live and never had an argument over who owns the land that the property line is on.
I have always felt this private/public land issue should be settled in court and hopefully in favor of the tax paying hunters. I have an aquantince in Wyoming that purchased a parcel of land that included BLM land in closed in the parcel and unavailable to the public. Not right!
Of course the defense does not want the jurors to know, the character of his clients…good grief.
It’s an important fact to understand these hunters were fully aware they could not cross -through- the fence, so they concocted a plan to go over the fence.
There’s no fence
Mr. Holman,
There absolutely is a fence, with No Trespassing signs attached to the posts. Regardless of fence or boundary , in Wyoming it’s the sportsman to know where they are at, it’s the law.
There are metal posts driven in the ground with a sign but there’s no fence.
Hunters “concocted” a plan? Good grief, Brad Hill, they never once physically touched the ground. You’ve tried your argument here before and are always met with scoffs and laughs. Regarding the video footage, I think the jury would enjoy seeing Eshelman’s Go-Fer telling the law dogs how “important and rich” his boss is. The average Wyomingite who’ll sit on this jury will not appreciate the “do you know who I am” mentality of Eshelman and his lackey of the week.
Mr. Moen,
Yes they absolutely concocted a plan. They were told the previous year they could not Trespass.
So they built a ladder, which clearly indicates they devised a plan, and implemented that plan.
They never trespassed, so didn’t need to “concoct” a plan. Not once did they touch the private land. Give it up, Brad Hill….you were amusing as first but now just sounding like a broken record