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 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.