harmless error in Wyoming

2013W.R.AP. 9.04 states that “any error, de- *172 feet, irregularity or variance which does not affect substantial rights shall be disregarded by the reviewing court.” Seymore v. State, 2007 WY 32, ¶ 17 , 152 P.3d 401, 406 (Wyo.2007).

2013W.R.AP. 9.04 states that “any error, de- *172 feet, irregularity or variance which does not affect substantial rights shall be disregarded by the reviewing court.” Seymore v. State, 2007 WY 32, ¶ 17 , 152 P.3d 401, 406 (Wyo.2007).

2011Harris v. State, 2008 WY 28, 12 , 177 P.3d 1166, 1170 (Wyo.2008).

2011Harris v. State, 2008 WY 23, 112 , 177 P.3d 1166, 1170 (Wyo.2008).

2004Van Riper v. State, 882 P.2d 230, 236 (Wyo.1994), citing Arizona v. Fulminante, 499 U.S. 279, 306-07 , 111 S.Ct. 1246 , 113 L.Ed.2d 302 (1991). [¶ 12] Typically, we review trial court rulings on motions to suppress de novo, giving deference to the trial court’s findings of fact and credibility determinations.

2004However, "[rle-strictions on the right to confront witnesses are subject to the harmless error analysis." Van Riper v. State, 882 P.2d 230, 287 (Wyo. 1994).

1999Further, the proponent * * * must demonstrate the existence of a clear and unequivocal rule of law which the particular facts transgress in a clear and obvious, not merely arguable, way. * * * [T]he error or defect must adversely affect some substantial right of the accused in order to avoid the application of the harmless error concept * * Id. (quoting Hampton v. State, 558 P.2d 504, 507 (Wyo.1977)).

1987In Hampton v. State, Wyo., 558 P.2d 504, 507 (1977), we said: "* * * When review is sought under the plain error doctrine this Court must be able to discern from the record, without resort to speculation or equivocal inference, what occurred at trial, that is, we are entitled to know the particular facts. [Citations.] Further, the proponent of plain error must demonstrate the existence of a clear and unequivocal rule of law which the particular facts transgress in a clear and obvious, not merely arguable, way. [Citations.] If these criteria are met, the error or defect must adversely affect so

2017Vigil, 2004 WY 110, ¶ 22 , 98 P.3d at 180 ; see also Chapman, 386 U.S. at 21 , 87 S.Ct. at 826-27 (constitutional error when defendants were punished for exercising their Fifth and Fourteenth Amendment right to be silent). [¶65] Here, Mr. Sam’s counsel objected to the improper statements, so we apply the harmless error standard: "Whether such misconduct has been reviewed on the basis of harmless error, W.R.Cr.P. 52(a) and W.R.A.P. 9.04, or on the basis of plain error, W.R.Cr.P. 52(b) and W.R.A.P. 9.05, this Court has focused on whether such error ... affected the accused’s “substantial rights.

2017Vigil, 2004 WY 110, ¶ 22 , 98 P.3d at 180 ; see also Chapman, 386 U.S. at 21 , 87 S.Ct. at 826-27 (constitutional error when defendants were punished for exercising their Fifth and Fourteenth Amendment right to be silent). [¶65] Here, Mr. Sam’s counsel objected to the improper statements, so we apply the harmless error standard: "Whether such misconduct has been reviewed on the basis of harmless error, W.R.Cr.P. 52(a) and W.R.A.P. 9.04, or on the basis of plain error, W.R.Cr.P. 52(b) and W.R.A.P. 9.05, this Court has focused on whether such error ... affected the accused’s “substantial rights.

2019A violation of that right, "even though of constitutional proportion, is subject to a harmless error analysis." Seeley , 959 P.2d at 178 (citing United States v. Gomez , 67 F.3d 1515 , 1528 (10th Cir. 1995) ).

2001The hearing discussed facts in controversy and law that was applicable to the initial phase of the case, and *766 the failure to allow Mr. Skinner to be present was error. [123] As we stated in Seeley, the absence of a defendant during a conference with the court, even though of constitutional proportion, is subject to a harmless error analysis. 959 P.2d at 178 .

2025Two years later, in Westmark v. State, 693 P.2d 220, 222, 225 (Wyo. 1984), we overruled Richter and reinstated Clenin’s prejudicial per se rule in “right to silence” cases.

1990If these criteria are met, the error or defect must adversely affect some substantial right of the accused in order to avoid the application of the harmless error concept procedurally expressed in Rule 49(a), W.R.Cr.P.” (Citations omitted.) In Goggins, 704 P.2d at 1291 , citing West-mark v. State, 693 P.2d 220 (Wyo.1984), we applied that plain error standard, saying: “In order to invoke the plain-error rule, it is necessary to show “ ‘ * * * (1) that the record reflects clear and unequivocally the fact complained of; (2) that the facts prove a transgression of a clear rule of law; (3) that the

2025Black v. State, 2017 WY 135, ¶ 13 , 405 P.3d 1045, 1050 (Wyo. 2017).

2025Black v. State, 2017 WY 135, ¶ 13 , 405 P.3d 1045, 1050 (Wyo. 2017).

2025See Skinner v. State, 2001 WY 102, ¶ 23 , 33 P.3d 758, 766 (Wyo. 2001) (“[T]he absence of a defendant during a conference with the court, even though of constitutional proportion, is subject to a harmless error analysis.”). [¶44] Although she is not obligated to establish prejudice, Ms. Marler contends on appeal that her absence from the hearing was prejudicial.

2025See Skinner v. State, 2001 WY 102, ¶ 23 , 33 P.3d 758, 766 (Wyo. 2001) (“[T]he absence of a defendant during a conference with the court, even though of constitutional proportion, is subject to a harmless error analysis.”). [¶44] Although she is not obligated to establish prejudice, Ms. Marler contends on appeal that her absence from the hearing was prejudicial.

1996See Smallwood, 748 P.2d at 1143 ; Crawford v. State, 701 P.2d 1150, 1153 (Wyo.1985). *176 Contrary to our decision in Bird, 901 P.2d 1123 , where we held that the district court’s error was harmless, in this case, it is impossible to determine how Appellant might have pleaded had he been provided with accurate sentencing information.

1988The advice required by Rule 15(c) must be given at the time a plea of guilty is accepted. * * * We decline to address a harmless error rule at this time, noting that the State has not demonstrated that this error is harmless beyond a reasonable doubt * * Crawford v. State, supra, 701 P.2d at 1153 .

2020See Capshaw v. State, 11 P.3d 905, 909 (Wyo. 2000) (prosecutor’s reference to prior bad acts evidence in opening statement before court ruled on its admissibility was contrary to ordered process for admission of such evidence and was inconsistent with prosecutor’s ethical obligation to further the ends of justice (citing Wyo.

2001Capshaw v. State, 11 P.3d 905, 913 (Wyo.2000); Kwallek v. State, 596 P.2d 1372, 1875-76 , (Wyo.1979).

2019See generally, Hannon v. State, 2004 WY 8, ¶ 11 , 84 P.3d 320, ¶ 11 (Wyo. 2004) (“Restrictions on the right to confront witnesses are subject to the harmless error analysis.”); Belden v. State, 2003 WY 89, ¶ 50 , 73 P.3d 1041, ¶ 50 (Wyo. 2003) (“A deprivation of the right to be present at all critical stages of a trial is subject to harmless error analysis.”); Simmons v. State, 2003 WY 84, ¶ 15 , 72 P.3d 803, ¶ 15 (Wyo. 2003) (prosecutorial misconduct reviewed for harmless error); Urbigkit v. State, 2003 WY 57, ¶¶ 30-31 , 67 P.3d 1207 , ¶¶ 30- 31 (Wyo. 2003) (failure to swear jury pursuant to

2019See generally, Hannon v. State, 2004 WY 8, ¶ 11 , 84 P.3d 320, ¶ 11 (Wyo. 2004) (“Restrictions on the right to confront witnesses are subject to the harmless error analysis.”); Belden v. State, 2003 WY 89, ¶ 50 , 73 P.3d 1041, ¶ 50 (Wyo. 2003) (“A deprivation of the right to be present at all critical stages of a trial is subject to harmless error analysis.”); Simmons v. State, 2003 WY 84, ¶ 15 , 72 P.3d 803, ¶ 15 (Wyo. 2003) (prosecutorial misconduct reviewed for harmless error); Urbigkit v. State, 2003 WY 57, ¶¶ 30-31 , 67 P.3d 1207 , ¶¶ 30- 31 (Wyo. 2003) (failure to swear jury pursuant to

2019See generally, Hannon v. State, 2004 WY 8, ¶ 11 , 84 P.3d 320, ¶ 11 (Wyo. 2004) (“Restrictions on the right to confront witnesses are subject to the harmless error analysis.”); Belden v. State, 2003 WY 89, ¶ 50 , 73 P.3d 1041, ¶ 50 (Wyo. 2003) (“A deprivation of the right to be present at all critical stages of a trial is subject to harmless error analysis.”); Simmons v. State, 2003 WY 84, ¶ 15 , 72 P.3d 803, ¶ 15 (Wyo. 2003) (prosecutorial misconduct reviewed for harmless error); Urbigkit v. State, 2003 WY 57, ¶¶ 30-31 , 67 P.3d 1207 , ¶¶ 30- 31 (Wyo. 2003) (failure to swear jury pursuant to

2019See generally, Hannon v. State, 2004 WY 8, ¶ 11 , 84 P.3d 320, ¶ 11 (Wyo. 2004) (“Restrictions on the right to confront witnesses are subject to the harmless error analysis.”); Belden v. State, 2003 WY 89, ¶ 50 , 73 P.3d 1041, ¶ 50 (Wyo. 2003) (“A deprivation of the right to be present at all critical stages of a trial is subject to harmless error analysis.”); Simmons v. State, 2003 WY 84, ¶ 15 , 72 P.3d 803, ¶ 15 (Wyo. 2003) (prosecutorial misconduct reviewed for harmless error); Urbigkit v. State, 2003 WY 57, ¶¶ 30-31 , 67 P.3d 1207 , ¶¶ 30- 31 (Wyo. 2003) (failure to swear jury pursuant to

2019Stat. Ann. § 7-11-107 can constitute harmless error); and Lewis v. State, 2002 WY 92, ¶ 26 , 48 P.3d 1063, ¶ 26 (Wyo. 2002) (“The erroneous admission of statements taken in violation of a defendant’s Fifth Amendment rights is subject to harmless error analysis.”).

2019Stat. Ann. § 7-11-107 can constitute harmless error); and Lewis v. State, 2002 WY 92, ¶ 26 , 48 P.3d 1063, ¶ 26 (Wyo. 2002) (“The erroneous admission of statements taken in violation of a defendant’s Fifth Amendment rights is subject to harmless error analysis.”).

2019See generally, Hannon v. State, 2004 WY 8, ¶ 11 , 84 P.3d 320, ¶ 11 (Wyo. 2004) (“Restrictions on the right to confront witnesses are subject to the harmless error analysis.”); Belden v. State, 2003 WY 89, ¶ 50 , 73 P.3d 1041, ¶ 50 (Wyo. 2003) (“A deprivation of the right to be present at all critical stages of a trial is subject to harmless error analysis.”); Simmons v. State, 2003 WY 84, ¶ 15 , 72 P.3d 803, ¶ 15 (Wyo. 2003) (prosecutorial misconduct reviewed for harmless error); Urbigkit v. State, 2003 WY 57, ¶¶ 30-31 , 67 P.3d 1207 , ¶¶ 30- 31 (Wyo. 2003) (failure to swear jury pursuant to

2019See generally, Hannon v. State, 2004 WY 8, ¶ 11 , 84 P.3d 320, ¶ 11 (Wyo. 2004) (“Restrictions on the right to confront witnesses are subject to the harmless error analysis.”); Belden v. State, 2003 WY 89, ¶ 50 , 73 P.3d 1041, ¶ 50 (Wyo. 2003) (“A deprivation of the right to be present at all critical stages of a trial is subject to harmless error analysis.”); Simmons v. State, 2003 WY 84, ¶ 15 , 72 P.3d 803, ¶ 15 (Wyo. 2003) (prosecutorial misconduct reviewed for harmless error); Urbigkit v. State, 2003 WY 57, ¶¶ 30-31 , 67 P.3d 1207 , ¶¶ 30- 31 (Wyo. 2003) (failure to swear jury pursuant to

2015Id. at ¶¶ 52, 54, 228 P.3d at 890-91 (Voigt, C.J., specially concurring) (citations omitted).

2015Id. at ¶¶ 52, 54, 228 P.3d at 890-91 (Voigt, C.J., specially concurring) (citations omitted).

2014Accordingly, we apply the harmless error standard of review. - Benjamin v. State, 2011 WY 147, 150 , 264 P.3d 1, 13 (Wyo.2011).

2014Accordingly, we apply the harmless error standard of review. - Benjamin v. State, 2011 WY 147, 150 , 264 P.3d 1, 13 (Wyo.2011).

2022Granzer v. State, 2008 WY 118, ¶ 18 , 193 P.3d 266 , 271–72 (Wyo. 2008).

2017See, e.g., Hedgpeth v. Pulido, 555 U.S. 57, 61 , 129 S.Ct. 530, 532 , 172 L.Ed.2d 388 (2008) (per curiam); Neder v. United States, 527 U.S. 1 , 119 S.Ct. 1827 , 144 L.Ed.2d 35 (1999) (omission of an element of an offense); California v. Roy, 519 U.S. 2 , 117 S.Ct. 337 , 136 L.Ed.2d 266 (1996) (per curiam) (erroneous aider and abettor instruction); Pope v. Illinois, 481 U.S. 497 , 107 S.Ct. 1918 , 95 L.Ed.2d 439 (1987) (misstatement of an element of an offense); Rose v. Clark, 478 U.S. 570 , 106 S.Ct. 3101 , 92 L.Ed.2d 460 (1986) (instruction that malice was presumed analyzed under a harmless e

2019See generally, Hannon v. State, 2004 WY 8, ¶ 11 , 84 P.3d 320, ¶ 11 (Wyo. 2004) (“Restrictions on the right to confront witnesses are subject to the harmless error analysis.”); Belden v. State, 2003 WY 89, ¶ 50 , 73 P.3d 1041, ¶ 50 (Wyo. 2003) (“A deprivation of the right to be present at all critical stages of a trial is subject to harmless error analysis.”); Simmons v. State, 2003 WY 84, ¶ 15 , 72 P.3d 803, ¶ 15 (Wyo. 2003) (prosecutorial misconduct reviewed for harmless error); Urbigkit v. State, 2003 WY 57, ¶¶ 30-31 , 67 P.3d 1207 , ¶¶ 30- 31 (Wyo. 2003) (failure to swear jury pursuant to

2019See generally, Hannon v. State, 2004 WY 8, ¶ 11 , 84 P.3d 320, ¶ 11 (Wyo. 2004) (“Restrictions on the right to confront witnesses are subject to the harmless error analysis.”); Belden v. State, 2003 WY 89, ¶ 50 , 73 P.3d 1041, ¶ 50 (Wyo. 2003) (“A deprivation of the right to be present at all critical stages of a trial is subject to harmless error analysis.”); Simmons v. State, 2003 WY 84, ¶ 15 , 72 P.3d 803, ¶ 15 (Wyo. 2003) (prosecutorial misconduct reviewed for harmless error); Urbigkit v. State, 2003 WY 57, ¶¶ 30-31 , 67 P.3d 1207 , ¶¶ 30- 31 (Wyo. 2003) (failure to swear jury pursuant to

2008Id., 499 U.S. at 307-12 , 111 S.Ct. at 1263-66 . [¶ 24] The Court reviewed prior decisions in which it had held that a criminal defendant need not show prejudice on appeal.

2008Id., 499 U.S. at 307-12 , 111 S.Ct. at 1263-66 . [¶ 24] The Court reviewed prior decisions in which it had held that a criminal defendant need not show prejudice on appeal.

2024See Nguyen v. State, 2013 WY 50, ¶ 8 , 299 P.3d 683, 686 (Wyo. 2013) (citing United States v. Vonn, 535 U.S. 55 , 73–74, 122 S. Ct. 1043, 1054 , 152 L.

2024See Nguyen v. State, 2013 WY 50, ¶ 8 , 299 P.3d 683, 686 (Wyo. 2013) (citing United States v. Vonn, 535 U.S. 55 , 73–74, 122 S. Ct. 1043, 1054 , 152 L.

2019Black v. State, 2017 WY 135, ¶ 13 , 405 P.3d 1045, 1050 (Wyo. 2017); King v. State, 2018 WY 52 , ¶ 11, 417 P.3d 657, 660 (Wyo. 2018) (citing Gonzalez–Ochoa v. State, 2014 WY 14 , ¶ 15, 317 P.3d 599, 604 (Wyo. 2014)).

2019King v. State, 2018 WY 52 , ¶ 11, 417 P.3d 657 , 660 (Wyo. 2018).

2019Black v. State, 2017 WY 135, ¶ 13 , 405 P.3d 1045, 1050 (Wyo. 2017); King v. State, 2018 WY 52 , ¶ 11, 417 P.3d 657, 660 (Wyo. 2018) (citing Gonzalez–Ochoa v. State, 2014 WY 14 , ¶ 15, 317 P.3d 599, 604 (Wyo. 2014)).

2019Black v. State, 2017 WY 135, ¶ 13 , 405 P.3d 1045, 1050 (Wyo. 2017); King v. State, 2018 WY 52 , ¶ 11, 417 P.3d 657, 660 (Wyo. 2018) (citing Gonzalez–Ochoa v. State, 2014 WY 14 , ¶ 15, 317 P.3d 599, 604 (Wyo. 2014)).

2017Vigil, 2004 WY 110, ¶ 22 , 98 P.3d at 180 ; see also Chapman, 386 U.S. at 21 , 87 S.Ct. at 826-27 (constitutional error when defendants were punished for exercising their Fifth and Fourteenth Amendment right to be silent). [¶65] Here, Mr. Sam’s counsel objected to the improper statements, so we apply the harmless error standard: "Whether such misconduct has been reviewed on the basis of harmless error, W.R.Cr.P. 52(a) and W.R.A.P. 9.04, or on the basis of plain error, W.R.Cr.P. 52(b) and W.R.A.P. 9.05, this Court has focused on whether such error ... affected the accused’s “substantial rights.

2017Vigil, 2004 WY 110, ¶ 22 , 98 P.3d at 180 ; see also Chapman, 386 U.S. at 21 , 87 S.Ct. at 826-27 (constitutional error when defendants were punished for exercising their Fifth and Fourteenth Amendment right to be silent). [¶65] Here, Mr. Sam’s counsel objected to the improper statements, so we apply the harmless error standard: "Whether such misconduct has been reviewed on the basis of harmless error, W.R.Cr.P. 52(a) and W.R.A.P. 9.04, or on the basis of plain error, W.R.Cr.P. 52(b) and W.R.A.P. 9.05, this Court has focused on whether such error ... affected the accused’s “substantial rights.

2000E.g., Kotteakos v. United States, 828 U.S. 750 , 66 S.Ct. 1239 , 90 L.Ed. 1557 (1946) United States v. Amaral, 488 F.2d 1148 (9th Cir.1973); People v. Barker, 180 Colo. 28 , 501 P.2d 1041 (1972).

2000E.g., Kotteakos v. United States, 328 U.S. 750 , 66 S.Ct. 1239 , 90 L.Ed. 1557 (1946); United States v. Amaral, 488 F.2d 1148 (9th Cir.1973); People v. Barker, 180 Colo. 28 , 501 P.2d 1041 (1972).

1997In Goggins v. Harwood, 704 P.2d 1282, 1291 (Wyo.1985), we quoted from Gore v. State, 627 P.2d 1384, 1388-89 (Wyo.1981), the ultimate consideration: Thus, unless an instruction can be said to have plainly caused a fundamental prejudice to the * * * [party's] legal rights, we will not overturn it on appeal unless it was objected to during the trial and a proper instruction was offered in its place.

1990If these criteria are met, the error or defect must adversely affect some substantial right of the accused in order to avoid the application of the harmless error concept procedurally expressed in Rule 49(a), W.R.Cr.P.” (Citations omitted.) In Goggins, 704 P.2d at 1291 , citing West-mark v. State, 693 P.2d 220 (Wyo.1984), we applied that plain error standard, saying: “In order to invoke the plain-error rule, it is necessary to show “ ‘ * * * (1) that the record reflects clear and unequivocally the fact complained of; (2) that the facts prove a transgression of a clear rule of law; (3) that the