Corner-crossing judge wants ‘airspace’ language in jury instructions

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.

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.

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.