Carbon County Circuit Court Judge Susan Stipe confers with attorneys during the trial of four Missouri hunters charged with trespass. (Angus M. Thuermer, Jr./WyoFile)

The judge in a corner-crossing trespass trial in Carbon County indicated Thursday she intends to include language in jury instructions referencing a Wyoming law that vests “ownership of the space above” private property to the owner of that property.

Carbon County Circuit Court Judge Susan Stipe told attorneys — but not the jury — that including the airspace language would be her intention when they finalize jury instructions Friday. 

Witnesses for the prosecution provided no evidence that the defendants set foot on private ground. That appears to put the question of whether passing through airspace above private property constitutes trespass at the center of the state’s case.

Stipe made her statement after Carbon County Prosecutor Ashley Mayfield Davis concluded her arguments following two days of trial in Rawlins. 

The defense will present its case beginning Friday. Defendants Phillip Yeomans, Bradly Cape, John Slowensky and Zachary Smith had not declared Thursday whether they will take the stand in their own defense.

Following the defendants’ opportunity to present evidence and witness testimony, each side will make its closing arguments. A four-man, three-woman jury will then determine whether the four Missouri hunters are guilty of criminal trespass for corner crossing past Fred Eshelman’s Elk Mountain Ranch in 2021. Three face alternative trespass-to-hunt charges from a similar incident in 2020.

Corner crossing involves stepping from one piece of public land to another at a common corner with two other pieces of private property, without touching that private property.

The case involves the checkerboard pattern of land ownership in parts of Carbon County where private and public land are interspersed. The men hunted on U.S. Bureau of Land Management and Wyoming state land in 2021 and killed two elk and a deer.

Stipe refused to grant a defense motion to acquit the four men after defense attorneys said the prosecutor failed to produce evidence meeting the essential elements necessary for conviction.

“There’s no evidence they were on private land,” defense attorney Ryan Semerad told the judge, “not one shred.”

Different version of evidence

Prosecutor Mayfield Davis told Stipe she saw “a very different version of the evidence.” In debating acquittal, both sides cited precedent involving the federal Unlawful Inclosure of Public Lands Act. 

The circuit court judge must consider the case in “the light most favorable to the state,” or prosecution, Stipe said, ruling that the jury would consider both a criminal trespass charge and an alternative theory to the charge based on Wyoming’s trespass-to-hunt statute.

Defendants and their attorneys at a break during the trial. Defendant Phillip Yeoemans is in profile in the background, left, John Slowensky is facing the camera, Brad Cape is to the right in the blue polo short and Zach Smith farther right in the patterned collared shirt. (Angus M. Thuermer, Jr./WyoFile)

Stipe’s potential airspace jury instruction would be based on a Wyoming law that states “[t]he ownership of the space above the lands and waters of this state is declared to be vested in the several owners of the surface beneath subject to the right of flight.”

What the complete instructions will contain will be argued in a conference with the judge Friday, court discussion indicated. After that, it appears the defense may call one witness before the four hunters take the stand or decide to remain silent, as is their right.

Stipe’s decision to present the case to the jury, and her stated inclination regarding the airspace instruction, came after a full day of testimony in front of the jury. Mayfield Davis called four witnesses: a deputy marshal from the town of Medicine Bow; the property manager of the Elk Mountain Ranch; a patrol sergeant from the Carbon County Sheriff’s Office and a Wyoming Game and Fish Department warden.

None testified they saw the defendants on private property and none discovered any evidence — including footprints — of them having been on Elk Mountain Ranch land.

The men fashioned a ladder to cross over two T-posts erected on the private parcels at the common corner with the public land. The T-posts were chained together. The ladder allowed them to climb over the obstruction without either them or the ladder touching Elk Mountain Ranch land.

Defendant Cape is vice president of All-type Fence Inc. in Steelville, Missouri, according to his LinkedIn profile. He described his knowledge of fences and property lines in a video shown to the jury from the body cam of Roger Hawks, a former Carbon County sheriff’s deputy and now a marshal for the town of Elk Mountain.

Hawks acknowledged that he spoke to ranch owner Eshelman, a wealthy North Carolina businessman, who was unhappy with the hunters and wanted them arrested for corner crossing.

“He wanted something done that night,” Hawks said of the conversation he had with Eshelman after contacting the hunters. Hawks issued no citation and offered no evidence of the four setting foot on Elk Mountain Ranch land.

‘Heat of moment’ video

Elk Mountain Ranch Property Manager Steve Grende likewise testified about his encounter with the hunters over the course of several days last fall. He first saw them on BLM property and watched them as they “returned over the corners,” to their camp on public land.

Under cross-examination by defense attorney Katye Ames, Grende agreed he never saw the four on Elk Mountain Ranch property, nor their footprints, a [dead] elk or their equipment.

The ladder never touched private land? Ames asked.

“Correct,” Grende said.

She asked: was there property damage?

“No,” Grende said.

“There’s no evidence they were on private land — not one shred.”

defense attorney Ryan Semerad

He kept contacting law enforcement urging legal action because he was instructed to by the ranch owner, Grende said. Asked what would have happened to him had he not badgered for a citation, he answered, “I have no idea.”

He denied he intended to intimidate law officers when he was urging Game and Fish Warden Jacob Miller and a sheriff’s deputy to cite the men, an act the lawmen were reluctant to immediately do because of agency policies. Grende appears in a body-cam video to refer to policymakers in an outburst.

“Do they realize how much money my boss has? …and property?” he says on the video.

Grende said he didn’t know he was being recorded. “That was said in the heat of the moment,” he testified.

He also agreed “we cannot control public land,” and said he erected the fence posts on the corner in question to keep people off private land. The chain between the two posts, which he said he took down about a month ago, had no purpose, he said.

Finally, Grende agreed a landowner doesn’t own the elk on his or her property and that one could fly, in a helicopter, over private property to access a public parcel that is surrounded by private land.

Warden Miller eventually wrote up a report on the incident and provided it to Mayfield Davis. A deputy subsequently went to the hunters’ camp and cited them for criminal trespass.

Angus M. Thuermer Jr.

Angus M. Thuermer Jr. is the natural resources reporter for WyoFile. He is a veteran Wyoming reporter and editor with more than 35 years experience in Wyoming. Contact him at angus@wyofile.com or (307)...

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  1. Public access to Public Land should be 100% legal. Crossing the airspace over a corner crossing shouldn’t even be a discussion. Let the people have access to their land.

  2. Note to Ashley Mayfield: we threw the king out in 1776. Yet, here we are, 2022 and you voluntarily nominated yourself as the court jester. You needlessly cost the Carbon County taxpayers 1,000’s of $. Another price paid is your reputation, you can kiss it goodbye. What a joke and thankfully 6 common sense jurors saw right through you.

  3. verdict is in NOT GUILTY!!!! Ashley Mayfield Davis, what an absolute sheet-show you put on and thanks a whole bunch ($$$) for costing the taxpayers to fund your charade. Next east bound train in Rawlins leaves in an hour, BE ON IT. Angus T. & WyoFile need to take partial credit for keeping their nose to the grindstone and balking at Mayfield’s attempt to thwart the First Amendment

  4. Take the time to serve if summoned and selected. Bear in mind. At any given time. It may or could be you on other side depending on a jury. More often then not jury’s make right choice. They are handed a legal mess and they get it right.

  5. The Judge is absolutely correct with including “airspace “ and the applicable Wyoming State Statute language within the jury instructions.

  6. The four corners come together at a common point. IMO, which amounts to a hill of beans, it would meN the airspace is in Common.

  7. Access to over a million acres of public land comes down to whether or not momentary passage through airspace would be considered trespass. This would be a first if the jury buys into this ridiculous argument. Time to have faith in the justice system.

    1. Yes, let’s have faith BUT, often times, jurors are numbskulls. Most folks with a life and a job don’t have time to take off from their hectic daily routine to sit on a jury, especially in a court case that takes several days. About the only people who have the time are welfare bums. “If” the verdict is guilty, then eveyr kid who walks down a sidewalk swinging their elbows over a property line are criminals. But really, this case is about money and power swaying a County Prosecutor to press charges after law enforcement made the determination that there were no tickets to write.

      On a side note, the brash and brave Ranch lackey, Steve Grende seemed pretty tamed down and not such a tough guy with his testimony. Hmm, wonder if he’s seen the light regarding his boss or, hmm, doesn’t work for the jetset billionaire.

      1. Every one who votes in Wyoming may be called upon to serve on a jury. You are correct in that it does take time away from peoples lives to serve and most take it as a public duty to make an evidenced based decision as to the guilt or innocence of the individual on trial.
        I hope you get the opportunity to serve someday and then perhaps you will be a little more understanding of the process. Concerned and contributing members of society make up juries in the USA not “welfare bums” and to think otherwise is ridiculous.

      2. Stephen,
        If you’re summoned for Jury Duty, please report back how well the Judge perceives your excuse of “having a hectic life and to busy to serve on the jury”.

    2. Jeff,
      Never say never…
      Ellis v. Loftus Iron Co., the court held that the act of a horse, in reaching its head over a dividing fence, constituted trespass and exposed its owner to liability for any proximate damages.Therein the Chief Judge stated, “It seems to me sufficiently clear that some portion of the defendant’s horse’s body must have been over the boundary. That may be a very small trespass, but it is a trespass in the law.”