conviction bar in Wyoming

2022If identical counts are carried on to the jury instructions and the resulting jury verdict, there is “‘a danger that the jury may convict a defendant although not reaching a unanimous agreement on precisely which charge is the basis for the conviction’ in violation of ‘the Sixth 5 Amendment guarantee to a unanimous jury verdict.’” Triplett v. State, 2017 WY 148, ¶ 13 , 406 P.3d 1257, 1260 (Wyo. 2017) (quoting United States v. Washington, 653 F.3d 1251, 1262 (10th Cir. 2011)).

2020“Duplicity ‘present[s] a danger that the jury may convict a defendant although not reaching a unanimous agreement on precisely which charge is the basis for the conviction’ in violation of ‘[t]he Sixth Amendment guarantee . . . to a unanimous jury verdict[.]’” Triplett, ¶ 13, 406 P.3d at 1260 (quoting United States v. Washington, 653 F.3d 1251, 1262 (10th Cir. 2011)).

2013A variance is not fatal “unless the appellant could not have anticipated from the indictment or information what evidence would be admitted at trial, or the conviction would not bar subsequent prosecution.” Id. [¶ 20] We explained the variance concepts in another way in Weidt v. State, 2002 WY 74, ¶ 9 , 46 P.3d 846, 851 (Wyo.2002) (citations omitted): [A] variance is fatal where the instruction submits a new and distinct offense to the jury.

2010Anderson v. State, 2009 WY 119, ¶ 6 , 216 P.3d 1143 , 1145 (Wyo.2009), quoting Martin v. State, 2007 WY 2, ¶ 32 , 149 P.3d 707, 715 (Wyo.2007). [¶ 18] A variance occurs when “the evidence presented at trial proves facts dif *308 ferent from those alleged in the information or indictment.” However, reversal is not required unless the defendant “could not have anticipated from the indictment or information what evidence would be admitted at trial, or the conviction would not bar subsequent prosecution.” Spagner, ¶ 15, 200 P.3d at 800 . [¶ 19] The information in the case at bar stated in relevant

2022If identical counts are carried on to the jury instructions and the resulting jury verdict, there is “‘a danger that the jury may convict a defendant although not reaching a unanimous agreement on precisely which charge is the basis for the conviction’ in violation of ‘the Sixth 5 Amendment guarantee to a unanimous jury verdict.’” Triplett v. State, 2017 WY 148, ¶ 13 , 406 P.3d 1257, 1260 (Wyo. 2017) (quoting United States v. Washington, 653 F.3d 1251, 1262 (10th Cir. 2011)).

2022If identical counts are carried on to the jury instructions and the resulting jury verdict, there is “‘a danger that the jury may convict a defendant although not reaching a unanimous agreement on precisely which charge is the basis for the conviction’ in violation of ‘the Sixth 5 Amendment guarantee to a unanimous jury verdict.’” Triplett v. State, 2017 WY 148, ¶ 13 , 406 P.3d 1257, 1260 (Wyo. 2017) (quoting United States v. Washington, 653 F.3d 1251, 1262 (10th Cir. 2011)).

2009See Mickelson v. State, 2008 WY 29, ¶ 12 , 178 P.3d 1080, 1084 (Wyo.2008); Rawle v. State, 2007 WY 59, ¶ 11 , 155 P.3d 1024, 1027 (Wyo.2007); Estrada-Sanchez, 2003 WY 45, ¶ 13 , 66 P.3d at 708 ; and Capshaw, 11 P.3d at 910 .

2009See Mickelson v. State, 2008 WY 29, ¶ 12 , 178 P.3d 1080, 1084 (Wyo.2008); Rawle v. State, 2007 WY 59, ¶ 11 , 155 P.3d 1024, 1027 (Wyo.2007); Estrada-Sanchez, 2003 WY 45, ¶ 13 , 66 P.3d at 708 ; and Capshaw, 11 P.3d at 910 .

2009See Mickelson v. State, 2008 WY 29, ¶ 12 , 178 P.3d 1080, 1084 (Wyo.2008); Rawle v. State, 2007 WY 59, ¶ 11 , 155 P.3d 1024, 1027 (Wyo.2007); Estrada-Sanchez, 2003 WY 45, ¶ 13 , 66 P.3d at 708 ; and Capshaw, 11 P.3d at 910 .

2009See Mickelson v. State, 2008 WY 29, ¶ 12 , 178 P.3d 1080, 1084 (Wyo.2008); Rawle v. State, 2007 WY 59, ¶ 11 , 155 P.3d 1024, 1027 (Wyo.2007); Estrada-Sanchez, 2003 WY 45, ¶ 13 , 66 P.3d at 708 ; and Capshaw, 11 P.3d at 910 .

2023United States v. White, 782 F.3d 1118, 1132 (10th Cir. 2015) (citing Taylor v. United States, 495 U.S. 575, 601-02 , 110 S.Ct. 2143, 2159-60 , 109 L.Ed.2d 607 (1990)). [¶32] Aside from these concerns, an additional flaw in DCI’s reliance on a dismissed charge to determine the facts and circumstances underlying a conviction is its presumption that the elements of the dismissed charge could have been proved.

2020See also Tanner v. State, 2002 WY 170 , 57 P.3d 1242 (Wyo. 2002) (reversing burglary conviction because of the risk of a non-unanimous 5 verdict where the charging document and jury instructions failed to specify which alternate element the State alleged occurred and the general verdict failed to identify which element the jury found the defendant committed); Bush v. State, 908 P.2d 963 (Wyo. 1995).

2020See also Tanner v. State, 2002 WY 170 , 57 P.3d 1242 (Wyo. 2002) (reversing burglary conviction because of the risk of a non-unanimous 5 verdict where the charging document and jury instructions failed to specify which alternate element the State alleged occurred and the general verdict failed to identify which element the jury found the defendant committed); Bush v. State, 908 P.2d 963 (Wyo. 1995).

2013Reay v. State, 2008 WY 13, ¶ 8 , 176 P.3d 647, 650 (Wyo.2008).

2013Reay v. State, 2008 WY 13, ¶ 8 , 176 P.3d 647, 650 (Wyo.2008).

2013A variance is not fatal “unless the appellant could not have anticipated from the indictment or information what evidence would be admitted at trial, or the conviction would not bar subsequent prosecution.” Id. [¶ 20] We explained the variance concepts in another way in Weidt v. State, 2002 WY 74, ¶ 9 , 46 P.3d 846, 851 (Wyo.2002) (citations omitted): [A] variance is fatal where the instruction submits a new and distinct offense to the jury.

2013A variance is not fatal “unless the appellant could not have anticipated from the indictment or information what evidence would be admitted at trial, or the conviction would not bar subsequent prosecution.” Id. [¶ 20] We explained the variance concepts in another way in Weidt v. State, 2002 WY 74, ¶ 9 , 46 P.3d 846, 851 (Wyo.2002) (citations omitted): [A] variance is fatal where the instruction submits a new and distinct offense to the jury.

2010Anderson v. State, 2009 WY 119, ¶ 6 , 216 P.3d 1143 , 1145 (Wyo.2009), quoting Martin v. State, 2007 WY 2, ¶ 32 , 149 P.3d 707, 715 (Wyo.2007). [¶ 18] A variance occurs when “the evidence presented at trial proves facts dif *308 ferent from those alleged in the information or indictment.” However, reversal is not required unless the defendant “could not have anticipated from the indictment or information what evidence would be admitted at trial, or the conviction would not bar subsequent prosecution.” Spagner, ¶ 15, 200 P.3d at 800 . [¶ 19] The information in the case at bar stated in relevant

2010Anderson v. State, 2009 WY 119, ¶ 6 , 216 P.3d 1143 , 1145 (Wyo.2009), quoting Martin v. State, 2007 WY 2, ¶ 32 , 149 P.3d 707, 715 (Wyo.2007). [¶ 18] A variance occurs when “the evidence presented at trial proves facts dif *308 ferent from those alleged in the information or indictment.” However, reversal is not required unless the defendant “could not have anticipated from the indictment or information what evidence would be admitted at trial, or the conviction would not bar subsequent prosecution.” Spagner, ¶ 15, 200 P.3d at 800 . [¶ 19] The information in the case at bar stated in relevant

2003Vaupel v. State, 708 P.2d 1248, 1250 (Wyo.1985).

2000Our conclusion in that case was that reversal of a conviction for violation of § 14-3-105 was compelled because two expert witnesses who were called to testify by the State were permitted to testify, over defense objections, to their opinions that the victim's father was the perpetrator of the crime. 774 P.2d at 65, 66 .

2000Our conclusion in that case was that reversal of a conviction for violation of § 14-3-105 was compelled because two expert witnesses who were called to testify by the State were permitted to testify, over defense objections, to their opinions that the victim's father was the perpetrator of the crime. 774 P.2d at 65, 66 .