Carbon County Prosecutor Ashley Mayfield Davis has asked Carbon County Circuit Court Judge Susan Stipe to dismiss a second round of indictments against three Missouri hunters whom a jury found not guilty of corner crossing.
Mayfield Davis filed the motion to dismiss criminal trespass and trespassing to hunt charges against Brad Cape, Zach Smith and Phillip Yeomans on May 4, according to court documents. The judge has not yet signed an order dismissing the new charges as requested, but is expected to this week, a clerk at the court in Rawlins said.
A Carbon County jury found the three men, plus companion John Slowensky, not guilty April 29 of a 2021 corner crossing incident at Elk Mountain Ranch owned by North Carolina resident Fred Eshelman. Just before the trial started, Mayfield Davis served three of the men with a summons to appear at an arraignment on similar charges, but relating to a hunting excursion in 2020.
Mayfield Davis wants that arraignment canceled and the 2020 charges dismissed.
“The essential facts in this matter were considered by the Jury,” the motion reads. “Therefore, rather than submitting the same evidence to another Jury, the State believes a dismissal would be in the interest of judicial economy and would ask the Court to dismiss the Information [charges] without prejudice.”
Without prejudice means the case could be filed again.
Corner crossing is the act of stepping from one piece of public property to another at the corner of two private pieces, all arranged in a checkerboard pattern. The hunters, in both 2020 and 2021 instances, said they never touched private land when they corner crossed during the two hunting seasons.
Their trial for the 2021 incident lasted three days. A three-woman, three-man jury found them not guilty of criminal trespass — and an alternate charge of trespassing-to-hunt — in fewer than two hours. The defendants did not testify.
The hunters’ attorneys said the prosecutor never produced evidence the four had touched Eshelman’s private land.
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.”
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.”
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.
Defense attorney Ryan Semerad painted a picture of Eshelman, a wealthy 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.
“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.
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.”