“Masturbation” in Wyoming Child Sexual Exploitation Includes Digital Penetration and Sex-Device Penetration; Unanimity Concerns Defeated by Count-Specific Instructions

Introduction

In William John Duncan v. The State of Wyoming, 2026 WY 86 (Wyo. July 30, 2026), the Wyoming Supreme Court affirmed William John Duncan’s convictions for multiple counts of sexual exploitation of a child under Wyo. Stat. Ann. § 6-4-303(b)(ii) (2021), along with convictions for child endangerment and unlawful contact. The exploitation counts centered on Duncan’s use of text messages and other communications to encourage a 12–14-year-old child (his stepdaughter/adopted daughter) to engage in sexual conduct involving other minors, including the child’s peers and the child’s stepbrother.

The appeal presented three interrelated legal questions: (1) whether the evidence was sufficient for three exploitation counts—two involving digital penetration and sex-device penetration of a child friend, and one involving enticement toward sex with the stepbrother; (2) whether the jury instructions risked nonunanimous verdicts or duplicative convictions for the same underlying conduct; and (3) whether the aggregate prison sentence violated Wyoming’s constitutional ban on cruel or unusual punishment.

Summary of the Opinion

  • Statutory interpretation / sufficiency: The Court held that encouraging a child to digitally penetrate or use sexual devices on another child constitutes “masturbation” and therefore “explicit sexual conduct” under § 6-4-303(a)(iii). This supported convictions on Counts II and V.
  • Enticement / sufficiency: The Court held sufficient evidence supported Count III that Duncan “enticed” the minor to engage in sexual intercourse with her stepbrother, based on the content and context of his communications and encouragement over time.
  • Unanimity / plain error: The Court found no plain error because the jury instructions (requested/approved by defense) differentiated each count by identifying the specific act (digital penetration vs. sexual device penetration vs. intercourse), and the State’s closing argument matched that structure.
  • Cruel punishment: The Court held the aggregate 21–30 year prison term (plus probation) was not grossly disproportionate to the gravity of Duncan’s conduct under Article 1, Section 14 of the Wyoming Constitution, particularly given the statutory exposure and the multi-victim nature of the crimes.

Analysis

Precedents Cited

Wilson v. State, 2024 WY 34

Wilson v. State supplied the governing sufficiency-of-the-evidence lens: appellate courts do not reweigh credibility, they view evidence in the light most favorable to the State, accept the State’s favorable evidence as true, and draw reasonable inferences for the verdict. This framework mattered because Duncan’s challenges largely recast the evidence as ambiguous or benign; the Court rejected that invitation and instead assessed whether the jury could reasonably find each statutory element satisfied.

Townsend v. State, 2025 WY 108, and Walker v. State, 2022 WY 158

These cases controlled the plain-error review of jury instructions and the specific concern about jury unanimity when multiple acts could support similar counts. Townsend v. State emphasized that when a defendant fails to object, plain error requires (1) a clear record, (2) violation of a clear and unequivocal rule of law in an obvious way, and (3) material prejudice; it also approved count-specific differentiating language as a way to avoid unanimity problems. In contrast, Walker v. State found a unanimity risk where instructions lacked distinguishing language and closing arguments did not clarify which acts mapped to which counts.

Here, the Court treated the case as Townsend-like rather than Walker-like: the element instructions named the child and specified the act (“digital penetration,” “penetration with sexual devices,” etc.), the jury was told to consider each count separately, and the prosecutor’s closing argument matched each count to particular evidence. Those features defeated the claim of an obvious legal violation and undermined prejudice.

Schuerman v. State, 2022 WY 160; Bernal-Molina v. State, 2021 WY 90; Marfil v. State, 2016 WY 12

These cases supplied the Court’s approach to undefined statutory terms in criminal statutes: when the legislature does not provide a definition, courts apply common/ordinary meaning rather than a specialized meaning. The Court used this interpretive rule to define “masturbation” and “entice” by consulting standard dictionaries (American Heritage, Merriam-Webster, and Black’s Law Dictionary).

Blakeman v. State, 2004 WY 139

The Court referenced Blakeman v. State in connection with defining “entice,” including its linkage to “solicit” as “to tempt or to entice someone to do wrong.” That reinforcement supported a broad, ordinary-meaning reading: enticement can occur through luring, inducement, attraction, and arousing desire—particularly relevant where the exploitation is accomplished by grooming-style communications rather than a single overt demand.

Castaner v. State, 2026 WY 25; Martinson v. State, 2023 WY 88; Bear Cloud v. State, 2014 WY 113; Hicks v. State, 2025 WY 113

These cases governed the constitutional sentencing analysis under Article 1, Section 14:

  • Castaner v. State and Bear Cloud v. State: constitutional sentence challenges are reviewed de novo.
  • Martinson v. State and Hicks v. State: Wyoming’s proportionality inquiry asks first whether the punishment is grossly disproportionate by comparing the gravity of the offense to the harshness of the penalty, focusing on the offender’s actual criminal conduct. Only if gross disproportionality is found does the Court compare sentences in other jurisdictions or for similarly situated defendants.

Applying this framework, the Court held Duncan’s sentence did not cross the gross-disproportionality threshold, so it declined comparative review.

Legal Reasoning

1) “Explicit sexual conduct” includes digital penetration and sex-device penetration as “masturbation”

The pivotal statutory question was whether the conduct in Counts II and V—encouraging digital penetration of a child friend and penetration with sexual devices— qualifies as “explicit sexual conduct” under § 6-4-303(a)(iii). The statute lists forms of “explicit sexual conduct,” including “masturbation,” but does not define “masturbation.”

Following Schuerman v. State (and related cases), the Court turned to ordinary meaning. It adopted dictionary definitions describing masturbation as excitation of one’s own or another’s genital organs by manual contact or “instrumental manipulation” and by means other than sexual intercourse. That ordinary meaning readily encompassed both digital penetration (manual stimulation) and sex-device penetration (instrumental manipulation).

On the evidentiary side, the Court pointed to testimony and recovered messages describing Duncan’s directions and commentary (including “magic fingers”), and to testimony that the minors often complied with his instructions. Under the Wilson v. State standard, this evidence permitted a reasonable jury to find that Duncan, “for any purpose,” “knowingly” “entice[d]” the minor to engage in “explicit sexual conduct” (masturbation of another child).

2) “Entice” satisfied by grooming-style inducement and encouragement toward sex with the stepbrother

For Count III, Duncan argued his messages simply promoted openness and honesty about the minor’s relationship with her stepbrother, not enticement. Because “entice” is undefined in § 6-4-303, the Court again used ordinary meaning: to lure, induce, wrongfully solicit, or attract someone by arousing interest or desire.

The Court considered the July 1, 2022 texts (including Duncan’s sexualized framing of the minors as “good looking kids and horny as hell” and “not blood related”), the later development and continuation of the sexual relationship, and Duncan’s ongoing encouragement—culminating in the directive that the minor should lie on the stepbrother’s bed and perform sexual acts so “he won’t be able to say no.” In context, and applying favorable inferences to the State, the Court concluded a reasonable jury could infer Duncan was luring/inducing the minor toward sex with the stepbrother, not neutrally collecting information.

3) No plain error on unanimity/double-counting: the instructions and argument separated the acts by count

Duncan argued that if digital penetration and sex-device penetration both fall under “explicit sexual conduct,” then Counts II and V risked (a) a nonunanimous verdict (jurors picking different acts for the same count) or (b) multiple convictions for the same conduct.

Plain error review (per Townsend v. State and Walker v. State) doomed the claim because:

  • The element instructions expressly identified the child and the specific act for each count (digital penetration vs. penetration with sexual devices).
  • Defense counsel not only failed to object but affirmatively agreed to the differentiating instruction for Count II and requested separate consideration of counts.
  • The jury received a separate-count instruction, and the prosecutor’s closing argument mapped each count to particular evidence and exhibits.

This record resembled the instruction clarity approved in Townsend, not the ambiguity condemned in Walker. Accordingly, Duncan failed to show an obvious violation of a clear rule of law or a reasonable probability of nonunanimity.

4) Consecutive sentencing per affected child was not grossly disproportionate

Duncan’s constitutional argument focused on the aggregate: 21–30 years’ imprisonment (plus probation) for six exploitation counts. Applying Hicks v. State and Martinson v. State, the Court first compared the gravity of the actual conduct to the harshness of the penalty.

Key gravity considerations included: (1) exploitation beginning when the minor was 12; (2) grooming/normalization through repeated sexual messaging; (3) directing sexual activity among multiple children (four minors affected); (4) supplying/encouraging use of sexual devices and pornography; and (5) concealment efforts (message deletion directives). The sentencing court structured punishment as one sentence per affected child (three consecutive prison terms plus one suspended/probationary term), a rationale the Supreme Court endorsed as consistent with the multi-victim nature of the harm.

The Court also noted the sentence imposed was below the statutory maximum exposure for six counts. Having found no gross disproportionality, it did not proceed to interjurisdictional comparisons or “moral sense” benchmarking.

Impact

1) Clarifies the scope of “masturbation” within “explicit sexual conduct”

The opinion establishes a practical and expansive interpretive rule for Wyoming’s child sexual exploitation statute: masturbation includes digital penetration and penetration by sexual devices when used to stimulate another person’s genitals, and thus qualifies as “explicit sexual conduct.” This closes an argument that “masturbation” is limited to self-stimulation or non-penetrative touching, and it aligns the statutory term with contemporary dictionary usage.

2) Reinforces that “enticement” can be proven through context and course of conduct

The Court’s treatment of “entice” confirms that the element may be satisfied by communications that arouse desire, normalize sexual conduct, or encourage sexual access—especially in grooming scenarios—without requiring a single explicit “command” at the outset of the relationship.

3) Instructional practice: specificity by count is the antidote to unanimity challenges (especially on plain error)

The case underscores a best practice for prosecutors and trial courts: when multiple acts could fit the same statutory label, element instructions should identify the complainant/child and the particular act alleged for that count, and closing argument should preserve that mapping. For defendants, it demonstrates the steep cost of affirmatively agreeing to such instructions and later raising unanimity objections under plain error review.

4) Proportionality: multi-victim structuring supports consecutive sentences

The Court’s approval of consecutive sentencing structured “per child affected” will likely be cited to support aggregate sentences in exploitation cases where one defendant’s conduct causes sexual activity involving multiple minors, even if some acts overlap in time or are connected through a single course of manipulation.

Complex Concepts Simplified

  • Sufficiency of the evidence: The appellate court asks only whether a reasonable jury could find guilt from the evidence viewed most favorably to the State, not whether the appellate judges themselves are convinced beyond a reasonable doubt.
  • “Explicit sexual conduct” (statutory list): Wyoming defines the term by listing acts. If an act fits within a listed category—here, “masturbation”—it qualifies.
  • Ordinary meaning of undefined terms: If the legislature did not define a term like “masturbation” or “entice,” courts use common dictionary meaning.
  • Plain error: When no objection is made at trial, reversal requires an obvious legal mistake and a showing that it likely mattered to the verdict.
  • Jury unanimity in multi-act cases: Jurors must agree on the act that proves each count. Count-specific instructions (naming the act) reduce the risk jurors convict for different reasons under the same count.
  • Gross disproportionality (Wyoming Constitution): A sentence is unconstitutional only if it is so harsh compared to the crime that it is “grossly disproportionate.” If that threshold is not met, courts do not compare the sentence to other cases.

Conclusion

2026 WY 86 makes three lasting doctrinal contributions to Wyoming criminal law: (1) it interprets “masturbation” in § 6-4-303(a)(iii) to include both digital penetration and sexual-device penetration used to stimulate another’s genitals, bringing such conduct within “explicit sexual conduct” for child sexual exploitation prosecutions; (2) it confirms “enticement” may be established through contextual, grooming-style inducement rather than a single overt solicitation; and (3) it signals that unanimity challenges will generally fail—especially under plain error—where each count is tied to a distinct act through tailored instructions and coherent closing argument.

On sentencing, the Court’s proportionality analysis reinforces deference to consecutive terms reflecting multi-victim harm, and it illustrates that aggregate punishment, even lengthy, will be upheld where the conduct involves sustained exploitation, multiple minors, and deliberate concealment.