After fewer than two hours of deliberation Friday, a Carbon County jury found four Missouri hunters not guilty of trespassing for corner crossing at the Elk Mountain Ranch in 2021.
The three-woman, three-man panel returned the not-guilty verdicts on criminal trespass charges and on an alternative theory of trespassing to hunt.
Phillip Yeomans, Bradly Cape, John Slowensky and Zachary Smith hugged one another and their attorneys after Carbon County Circuit Court Judge Susan Stipe read the verdicts at about 2:30 p.m. It was the third day of the trial. Jurors would not comment as they left the temporary courthouse in Rawlins.
Corner crossing involves stepping from one piece of public land to another at the common corner with two pieces of private property, all arranged in a checkerboard pattern of alternating ownership. The hunters’ attorneys said Carbon County Prosecutor Ashley Mayfield Davis never produced evidence the four had touched the private land of Fred Eshelman’s Elk Mountain Ranch.
But Mayfield Davis said stepping on private property was not necessary to convict the four. Property ownership involves three dimensions, she said, using a block of Duplo LEGO style bricks in two colors to illustrate the concept of checkerboard ownership in three-dimensions.
“The law is you own the airspace,” she told the jury in her closing arguments. “Land ownership is not just the dirt, it’s the airspace above.
“You don’t have to touch that land,” to be convicted of trespass, she said.
The men must have violated the airspace above Eshelman’s ranch when they crossed the infinitely small point at the corner, she said.
“A body is bigger than that point,” she said. “All of their bodies were over private land…. When you break that plane [above a property boundary line] you are entering their property.”
Along with property ownership comes the right to exclude others from that property, she said. She proved the necessary elements for conviction, she asserted, including that the men knowingly entered private property after receiving notice not to trespass.
“The defendants’ actions in this case are brazen,” she told the jury.
Elk Mountain king dethroned?
Defense attorney Ryan Semerad painted a picture of ranch owner Eshelman, a wealthy North Carolina businessman, as a would-be king of Elk Mountain. The 11,161-foot high game-rich peak is largely surrounded by Eshelman’s ranch property. But a number of mile-by-mile U.S. Bureau of Land Management sections, as well as state-owned sections lie within the ranch boundaries.
The hunters set up camp on a public parcel accessible by a county road and then corner crossed to reach other public land where they killed two elk and a deer in the fall of 2021.
Eshelman used his money, clout and influence to get prosecutor Mayfield Davis to file charges, Semerad asserted.
“He believed the whole mountain was his and that no one but [he] was allowed to be there … like a king,” Semerad said. “When he hears there are some regular people on the other side of the mountain [he said] ‘go track them down, arrest those men!’
“He sends his helper to go call the county attorney’s office and here we are.
“The state told you the law was clear on this,” Semerad said of the trespass statutes. But the lack of an immediately issued citation shows otherwise, he said.
Neither a Wyoming Game and Fish Department warden nor a county sheriff’s deputy cited the men when they investigated the incident in the field. Game and Fish lacks authority to cite for criminal trespass and has a policy not to cite under the trespassing-to-hunt statute in corner-crossing cases.
Instead, corner-crossing cases are forwarded to the county attorney for consideration of charges. Warden Jacob Miller submitted a report to Mayfield Davis whose office later directed a deputy sheriff to cite the hunters.
Defense attorney David McCarthy outlined how that indecision demonstrated the law was unclear and that maybe the hunters did not knowingly enter private property after being notified not to trespass. He asked jury members to consider how such convoluted considerations would seem to them if employed when they were pulled over for speeding.
In such an instance, “have any of you been told ‘Oh, I’m going to call the county attorney’s office — I’ll get back to you?’” he asked.
Semerad said the hunters heard from a deputy that Game and Fish wouldn’t cite them for corner crossing. They heard a deputy himself say he wouldn’t cite them and a law officer said most of Wyoming’s county attorneys won’t cite for corner crossing.
“It’s clear as mud,” Semerad said of the trespass laws as they relate to corner crossing.
The defense also asserted that Mayfield Davis had not produced the necessary evidence to convict. On the trespassing-to-hunt alternative charge, for example, McCarthy said the prosecutor failed to show that each hunter, individually, had possessed a hunting weapon when seen after corner crossing.
Defense attorneys emphasized that public land is not the province of an individual and that no one person can control access to it.
“America has no king,” Semerad said. “Wyoming has no king, Carbon County has no king. There is no man [on] Elk Mountain who can make judgments on his will alone.”