SUBLETTE COUNTY – The court’s analyses of whether to allow texts, receipts, phone apps and prior collisions into an upcoming vehicular homicide trial are outlined in 9^th District Judge Marv Tyler’s recent 46-page ruling.

Alex W. Smith, of Colorado, was charged with, and pleaded not guilty to, aggravated felony homicide by vehicle while intoxicated on July 14, 2020, after his truck crossed Highway 191 and collided head-on with a Colorado man’s Mustang, immediately killing the driver Gerald Fagerhaug, of Colorado.

After emergency personnel worked to save his life, Smith was life-flighted and no blood was drawn to determine his alcohol content.

He was arrested in April and brought to Sublette County, where he requested a jury trial. It was set for Sept. 20 and rescheduled for Nov. 15 while attorneys awaited this ruling on prosecution motions to use texts, receipts, phone apps and prior DUI crashes – one just four days before Smith’s fatal collision with Fagerhaug.

In June, Sublette County Attorney Michael Crosson asked Judge Tyler to admit as trial evidence Smith’s prior conversations and actions to show his “alcoholism” and “addictive” drinking habits, records show.

These fall under Wyoming Rules of Evidence Rule 404(b), requiring the judge to use the “Gleason analysis” to examine “evidence of other crimes, wrongs or acts” as relevant to the current aggravated homicide charge. The analysis also weighs “probative value” versus unfair prejudice.

Smith’s defense objected, saying these had no relevance to the fatal collision and “course of conduct” or “absence of mistake” is not a required element, records show.

During the July 18 oral arguments hearing, Smith was jailed in Colorado for the July 10, 2020, DUI collision there. After being released 2020, Smith allegedly drove to Wyoming, buying liquor along the way and hours later crashing into Fagerhaug’s vehicle, court records show.

Prior DUI collisions

Judge Tyler’s “exacting analysis” of the potential Rule 404(b) evidence ruled against much of Crosson’s requests, although other avenues might exist, it says.

“Rule 404 governs evidence introduced ‘only to demonstrate that the defendant has a disposition to commit crimes,’” he quoted.

The judge examined each item’s potential use as outlined by Crosson and its “probative” value.

Judge Tyler denied Smith’s 2017 DUI-collision conviction, saying it “is not offered for a proper purpose” because ‘intent’ … is not an element of the instant offense which the state must prove beyond a reasonable doubt.”

Crosson asked for the 2020 Colorado DUI crash’s admission, with a trooper testifying that Smith was intoxicated, denied drinking alcohol, drank mouthwash, had a BAC of .24 percent and “appeared confused about his recent prior travels and which direction he was heading on I-70,” it says.

It was also declined – “Since the ‘thrust of the evidence’ is only to ‘demonstrate the defendant has disposition to commit crimes,’ it must be excluded,” the judge wrote.

Texts and phone apps are inadmissible as requested because they were not “offered for a proper purpose (or) shown to be relevant.” 

Liquor receipts

Judge Tyler analyzed alcohol sales receipts dated July 12, 2020 in Colorado after Smith was first released from jail and July 13 and July 14, 2020, in Laramie – “the day of the vehicle collision in the current charge.”

The defense had agreed during the July 18 videoconference each purchase was “part of a single criminal episode” and not 404(b) evidence.

Judge Tyler ruled the July 12-13, 2020, receipts were inadmissible – “not offered for a proper purpose” and lacking the “evidential hypothesis” linking them to the charged crime.

The morning of the fatal collision, Smith bought a bottle of Jim Beam, six vodka shooters and orange juice in Laramie, which Crosson argued was “intrinsic” and direct evidence of elements of the crime charged, the judge wrote.

A bottle of Jim Beam, “one which matches the brand and size/quantity of a mostly empty container found in (Smith’s) vehicle at the site of the collision,” would show he had access to alcohol while driving, an element of the charge, the order says.

The last purchase is admissible as 404(b) evidence.