Wyo. R. App. P. 9.04 (2026)

Rule 9.04. Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded by the reviewing court.

Source. — Former Rule 49(a), W.R. Cr. P. 108, 141 P.3d 690, 2006 Wyo. LEXIS 108 (Wyo. This rule is merely declaratory of old 2006), reh’g denied, 2006 Wyo. LEXIS 122 principles of law and does not alter or dimin- (Wyo. Sept. 26, 2006). ish the substantive law of this state as it Show cause hearing held on less than previously existed. ABC Builders v. Phillips, fifteen days notice was harmless error. — 632 P.2d 925, 1981 Wyo. LEXIS 365 (Wyo. Although holding a show cause hearing five 1981). days after the condemnees were served with Erroneous admission of evidence harm- the condemnor’s motion for immediate entry, ful. — Error in admitting the evidence was despite the condemnees’ objection, was error, prejudicial to defendant, as the only issue in the error was not reversible as the condemnees play was whether defendant possessed the did not address on appeal the nature of any drugs with an intent to distribute, the volume harm they may have incurred as a result of the of improper admitted evidence was substantial, district court’s decision to hold the hearing over and it was clear that the prosecution intended their objection. Conner v. Bd. of County to use the evidence of that transaction to prove Comm’rs, 2002 WY 148, 54 P.3d 1274, 2002 that defendant had provided the drugs to a Wyo. LEXIS 163 (Wyo. 2002). woman who had possessed the drugs behind Rejection of expert’s testimony harm- the hotel. Overson v. State, 2017 WY 4, 386 P.3d less error where trial outcome not af- 1149, 2017 Wyo. LEXIS 4 (Wyo. 2017). fected. — Rejection of expert’s testimony as Error must be injurious or prejudicial to unqualified in a particular area, even if errone- warrant reversal. — Spilman v. State, 633 ous, would be harmless error where the dis- P.2d 183, 1981 Wyo. LEXIS 372 (Wyo. 1981). puted evidence was a small part of the total An error to warrant reversal must be preju- trial, the trial to the court was lengthy and dicial and affect the substantial rights of an complicated, and there was a vast amount of appellant. ABC Builders v. Phillips, 632 P.2d expert testimony adduced, including that of the 925, 1981 Wyo. LEXIS 365 (Wyo. 1981). expert in question on other matters, so that the Although it could be argued that the district exclusion complained of could hardly have af- court should have ordered appellant to pay fected the outcome of the trial. Herman v. public defender fees as well as restitution, Speed King Mfg. Co., 675 P.2d 1271, 1984 Wyo. because appellant benefitted from that claimed LEXIS 243 (Wyo. 1984). error, he could not obtain a reversal of the Errors in instructions deemed not inju- judgment for an error in his favor. Chapman v. rious or prejudicial are no cause for rever- State, 2013 WY 57, 300 P.3d 864, 2013 Wyo. sal, and the appellant has the burden of show- LEXIS 62 (Wyo. 2013). ing harmful error. Mainville v. State, 607 P.2d Motion timely filed. — District court erred 339, 1980 Wyo. LEXIS 242 (Wyo. 1980). in ruling that defendant’s motion for sentence Jury instructions. — Although the district reduction was untimely because he filed his court erred by instructing the jury as to com- motion for sentence reduction within two mon law parental duties that were not encom- months of the appellate court’s mandate affirm- passed within the charged crime of felony mur- ing his conviction, but because the district court der, the error was harmless because the ruled on the merits of the motion rather than completed verdict form showed juror unanimity dismissing it for lack of jurisdiction, the error as to defendant’s guilt on all of the theories was harmless. Buckingham v. State, 2023 WY properly alleged. The judgment and sentence 92, 535 P.3d 887, 2023 Wyo. LEXIS 94 (Wyo. had to be amended to reflect the fact that only 2023). one charge was brought, that defendant was Appellant has burden of establishing bound over and arraigned and pled to only one that error is prejudicial or injurious and charge, and that he was therefore convicted of warrants reversal. Spilman v. State, 633 P.2d only one charge. Yellowbear v. State, 2008 WY 183, 1981 Wyo. LEXIS 372 (Wyo. 1981); In re 4, 174 P.3d 1270, 2008 Wyo. LEXIS 5 (Wyo. Claim of Taffner, 821 P.2d 103, 1991 Wyo. 2008). LEXIS 176 (Wyo. 1991). Jury instruction on the larceny portion of the Even if a district court erred by admitting crime of robbery that stated “taking or carry- testimony concerning the events surrounding ing” rather than the proper “taking and carry- an arrest in violation of Wyo. R. Evid. 402 and ing” was harmless error; it was not disputed Wyo. R. Evid. 403, there was no reversible error that defendant did “take and carry away” since defendant did not show that the error was money. Jones v. State, 2012 WY 82, 278 P.3d prejudicial or that a substantial right was ad- 729, 2012 Wyo. LEXIS 88 (Wyo. 2012). versely affected. Gabbert v. State, 2006 WY Vouching testimony harmless error. —

Rule 9.04 WYOMING COURT RULES 60

In a case in which defendant was convicted of WY 94, 96 P.3d 472, 2004 Wyo. LEXIS 122 two counts of first degree sexual abuse of a (Wyo. 2004), reh’g denied, 2004 Wyo. LEXIS minor, defendant was not prejudiced by a pros- 146 (Wyo. Sept. 21, 2004), cert. denied, 544 U.S. ecution witness’s testimony in which the wit- 963, 125 S. Ct. 1726, 161 L. Ed. 2d 605, 2005 ness testified that the victim’s interview was U.S. LEXIS 3005 (U.S. 2005). “very believable.” In light of the evidence Defendant’s convictions for possession of against defendant, it could not be said that the methamphetamine with intent to deliver were jury could have found differently in the absence proper because the supreme court was unable of the improper testimony. Sullivan v. State, to conclude that the jury selected violated the 2011 WY 46, 247 P.3d 879, 2011 Wyo. LEXIS 49 crux of the random selection requirement, al- (Wyo.), cert. denied, 565 U.S. 1038, 132 S. Ct. though it might not have been fully faithful to 582, 181 L. Ed. 2d 428, 2011 U.S. LEXIS 8114 the spirit of that time-honoured standard. To (U.S. 2011). the extent that its use was an improper devia- Reference to polygraph. — In a case in tion from what the governing statutes required, which defendant was convicted of two counts of the error, if any, was harmless because the first degree sexual abuse of a minor, a prosecu- supreme court was unable to identify an irregu- tion witness’s reference to a polygraph did not larity that affected defendant’s substantial require automatic reversal of defendant’s con- rights. White v. State ex rel. Wyo. DOT, 2009 victions. There was no prejudicial inference WY 90, 210 P.3d 1096, 2009 Wyo. LEXIS 95 from the witness’s remarks, because there was (Wyo. 2009). no explicit statement that there was a “refusal” When verdict harmful. — For an error to to take a polygraph. Sullivan v. State, 2011 WY be harmful, there must be a reasonable possi- 46, 247 P.3d 879, 2011 Wyo. LEXIS 49 (Wyo.), bility that, in the absence of error, the verdict cert. denied, 565 U.S. 1038, 132 S. Ct. 582, 181 might have been more favorable to a party. ABC L. Ed. 2d 428, 2011 U.S. LEXIS 8114 (U.S. 2011). Builders v. Phillips, 632 P.2d 925, 1981 Wyo. Harmless error applied to limiting in- LEXIS 365 (Wyo. 1981); Miller v. State, 755 structions. — Established rules with regard to P.2d 855, 1988 Wyo. LEXIS 56 (Wyo. 1988), harmless error should be applied in cases cert. denied, 806 P.2d 1308, 1991 Wyo. LEXIS which involve limiting instructions. Nava v. 35 (Wyo. 1991). State, 904 P.2d 364, 1995 Wyo. LEXIS 192 The jury selected did not violate the (Wyo. 1995). crux of the random selection requirement. Harmless error standard did not apply — Defendant’s convictions for possession of to a question of law. — When the district methamphetamine with intent to deliver were court supplemented the administrative record proper because the supreme court was unable in a workers’ compensation case with the fed- to conclude that the jury selected violated the eral trial testimony of witnesses who indicated crux of the random selection requirement, al- that appellee was injured during the course though it might not have been fully faithful to and scope of his employment, the district court the spirit of that time honored standard. To the erred by the failing to remand the case to the extent that its use was an improper deviation Office of Administrative Hearings for consider- from what the governing statutes required, the ation of the supplemented evidence. The harm- error, if any, was harmless because the supreme less error standard of review set forth in this court was unable to identify an irregularity rule did not apply; because the issue involved that affected defendant’s substantial rights. the construction and interpretation of a court Williams v. State. ex rel. Wyo. Workers’ Safety rule, it was a question of law subject to de novo & Comp. Div. (In re Worker’s Compensation review. Mullinax Concrete Serv. Co. v. Zowada, Claim), 2009 WY 57, 205 P.3d 1024, 2009 Wyo. 2010 WY 146, 243 P.3d 181, 2010 Wyo. LEXIS LEXIS 57 (Wyo. 2009). 151 (Wyo. 2010). Vouching testimony not harmless error. Juror selection error must be harmful. — In a sexual assault on a child case, a court’s — In defendant’s sexual exploitation case, al- error in admitting an expert’s testimony re- though the trial court erred by denying a chal- garding an interview with the victim that in- lenge for cause to a juror because there was no cluded “truthfulness criteria” was not harmless statement from the juror that he would be able because the expert’s “truthfulness criteria” tes- to consider the case only on the evidence pre- timony and her assessment of the victim’s cred- sented in court under the law, as instructed, ibility based on the content of the victim’s without regard to his stated bias, the error was interview responses directly vouched for the not prejudicial to defendant. There was nothing victim’s credibility. Seward v. State, 2003 WY to indicate that any of the jurors who served on 116, 76 P.3d 805, 2003 Wyo. LEXIS 142 (Wyo. the panel were not qualified to serve. All of the 2003). jurors including the two identified by defendant Improper inclusion of name on verdict as likely recipients of a peremptory challenge if form harmless. — The improper inclusion on he had had one available were passed for cause; a verdict form of the name of a nonactor with no since there is no demonstration that the jury possible liability is a harmless error where the was not impartial and that defendant was jury finds zero negligence as to that person and, denied a fair trial, he could not meet his burden consequently, the outcome is the same as of showing harmful error. Klahn v. State, 2004 though his name had not been on the verdict

61 RULES OF APPELLATE PROCEDURE Rule 9.04

form. ABC Builders v. Phillips, 632 P.2d 925, shot the victim in the face after an argument 1981 Wyo. LEXIS 365 (Wyo. 1981). concerning his giving the victim a meager tip Refusal to consider intervening with ex- for the delivery of a pizza. Wilks v. State, 49 ecution sale harmless error where no re- P.3d 985 (Wyo. 2002). sulting injustice. — Although the trial judge’s Admission of discoverable statements statement that he did not think he had the harmless error. — Where no order for discov- authority to intervene with the execution sale ery and inspection was ever issued by the court of a federal judgment — which was purchased because the state agreed to permit free inspec- for $250 then settled for $80,000 — may have tion of its file and to provide the defense with an been error, since district courts have the equi- exhaustive list of proposed and potential wit- table power to restrain execution upon a judg- nesses, and the statements made by the defen- ment which would result in an injustice, such dant were not in the file and would have been error was rendered harmless by the judge’s discoverable only upon colloquy with the inves- subsequent written order which found that the tigating officer, the admission of the statements value of the judgment was unknown beyond the was, at worst, harmless error. Pearson v. State, amount realized at the execution sale and that 818 P.2d 1144, 1991 Wyo. LEXIS 157 (Wyo. the eventual settlement amount received was 1991). the result of an increase in value after its Admission of hearsay testimony harm- execution sale. Wheatland Cold Storage & less error. — Admission of hearsay testimony Meat Processing v. Wilkins, 705 P.2d 316, 1985 concerning deceased declarant’s statements Wyo. LEXIS 544 (Wyo. 1985). about how defendant was handling her funds For error to be regarded as harmful and was harmless, where testimony simply corrobo- reversible, there must be a reasonable possi- rated the wealth of appropriate evidence al- bility that, in the absence of the error, the ready presented. Clark v. Gale, 966 P.2d 431, verdict might have been more favorable to the defendant. Trujillo v. State, 750 P.2d 1334, 1988 1998 Wyo. LEXIS 149 (Wyo. 1998). Wyo. LEXIS 57 (Wyo. 1988). In ruling on a petition to modify child sup- Testimony by a codefendant/coconspira- port, the district court did not err by admitting tor. — Although it was error for a juvenile letters from contractors stating they had no court to allow testimony by a codefendant/ work available for the father. While the mother coconspirator that he had been punished for the made a hearsay objection, the letters did noth- same violation of the criminal statute, the error ing more than corroborate the father’s testi- was harmless because of the overwhelming mony; therefore, admission of the letters was evidence that established the appellant’s par- harmless for purposes of this rule. Lauderman ticipation in a conspiracy to set a fire. KAA v. v. State, 2010 WY 70, 232 P.3d 604, 2010 Wyo. State (In re KAA), 2001 WY 24, 18 P.3d 1159, LEXIS 73 (Wyo. 2010). 2001 Wyo. LEXIS 27 (Wyo. 2001). In a case where defendant was charged with Admitting evidence of defendant’s prior being an accessory before the fact to arson, arrest for disturbing the peace at her trial several statements relating to defendant’s in- for attempted robbery was harmless error volvement were properly introduced into evi- where the reference to the arrest was momen- dence under Wyo. R. Evid. 801(d)(2)(E) since tary and not the subject of extensive inquiry by they were made during and in the furtherance the prosecutor, and the evidence establishing a conspiracy; it did not matter that the persons the circumstances surrounding the attempted testifying were not members of the conspiracy. robbery and the identity of the defendant as the Even though some hearsay testimony was ad- perpetrator was relatively strong. Jones v. mitted regarding defendant’s motive, there was State, 735 P.2d 699, 1987 Wyo. LEXIS 440 no harm since the evidence was cumulative of (Wyo. 1987). other testimony offered. Callen v. State, 2008 Admission of irrelevant testimony WY 107, 192 P.3d 137, 2008 Wyo. LEXIS 111 harmless error. — Testimony from defen- (Wyo. 2008). dant’s former employer that she fired him three Irrelevant testimony by physician was years previous because he was in a physical harmless error. — Even though a physician’s altercation with another employee and from a testimony concerning his treatment of a wit- former co-employee regarding occasional de- ness after the fight should not have been ad- rogatory comments defendant made was not mitted because it was not relevant under Wyo. relevant to prove or disprove any of the ele- R. Evid. 401, as defendant was not charged ments of first-degree murder or its lesser-in- with assaulting the witness, and the evidence cluded offenses, and the trial court abused its was not admissible to rehabilitate the witness’s discretion by allowing the testimony into evi- credibility, the error was harmless because the dence; however, the error was harmless where witness made it clear that defendant did not (1) defense counsel effectively neutralized the attack him or cause his injuries, and therefore suggestion that defendant was violent or prone testimony about the extent of his injuries could to vengeance on the cross-examination of both not reflect badly on defendant or unfairly turn witnesses, (2) defendant failed to show how he the jury against him. Evenson v. State, 2008 was prejudiced by the alleged improper testi- WY 24, 177 P.3d 819, 2008 Wyo. LEXIS 25 mony, and (3) the jury heard defendant’s own (Wyo. 2008). statement to the police wherein he admitted he Admission of evidence of deceased’s

Rule 9.04 WYOMING COURT RULES 62

pregnancy harmless error. — Although evi- Where defendant fired two shots at police dence of the deceased’s pregnancy was irrel- officers and was subsequently convicted of ag- evant, as not making any fact of consequence to gravated assault with a deadly weapon, even the determination of defendant’s guilt more or assuming, for purposes of defendant’s appeal of less probable, and should have been excluded the habitual offender charge, validity of alleged from defendant’s trial for aggravated homicide errors that he was denied due process and a fair by vehicle and two counts of reckless endanger- trial, that his pretrial motion to dismiss the ment, the error, though prejudicial, was harm- habitual offender charge was improperly de- less as the evidence against defendant was nied, and that there was prosecutorial miscon- overwhelming and strongly supported by mul- duct, defendant failed to show that he was tiple eyewitnesses. Orona-Rangal v. State, 2002 prejudiced by those errors; his belief that his WY 134, 53 P.3d 1080, 2002 Wyo. LEXIS 146 sentence would have been more lenient if he (Wyo. 2002), limited, Kite v. State, 2018 WY 94, pled guilty was purely speculative, ignored the 424 P.3d 255, 2018 Wyo. LEXIS 99 (Wyo. 2018). district court’s duty to consider the crime and Exclusion of hearsay testimony harm- its circumstances, and disregarded the fact that less error. — Because an employer was per- the officers’ testimony would have come before mitted to introduce exhibits documenting com- the district court at sentencing even if defen- plaints from others concerning an employee dant had pled guilty to the aggravated assault who was fired, and the employer called five charge. Hopson v. State, 2006 WY 32, 130 P.3d witnesses to testify concerning their experi- 494, 2006 Wyo. LEXIS 35 (Wyo. 2006). ences working with the employee, any error Under the harmless error and plain error that occurred in the trial court’s refusal to allow standards of review, a claim of prosecutorial certain similar proposed testimony on the misconduct regarding the questioning of wit- grounds of hearsay was harmless. Life Care nesses, the use of victim impact testimony, and Ctrs. of Am., Inc. v. Dexter, 2003 WY 38, 65 P.3d an alleged misstatement of evidence did not 385, 2003 Wyo. LEXIS 45 (Wyo. 2003). amount to reversible error since no prejudice Where prosecutorial misconduct al- was shown where defendant did not meet the leged. — Whether prosecutorial misconduct burden of establishing that the outcome of the has been reviewed on the basis of harmless trial would have been different absent the chal- error, Rule 9.04, or on the basis of plain error, lenged conduct. Gabbert v. State, 2006 WY 108, Rule 9.05, the focus is on whether such error 141 P.3d 690, 2006 Wyo. LEXIS 108 (Wyo. affected the accused’s substantial rights. Earll 2006), reh’g denied, 2006 Wyo. LEXIS 122 v. State, 2001 WY 66, 29 P.3d 787, 2001 Wyo. (Wyo. Sept. 26, 2006). LEXIS 81 (Wyo. 2001). Prosecutor’s misconduct in referring to de- Although a prosecutor committed misconduct fendant as a pedophile during rebuttal closing by asking defendant “were they lying” ques- argument in a prosecution charging defendant tions, the error was harmless because the cir- with third-degree sexual assault, a violation of cumstantial evidence contradicted defendant’s Wyo. Stat. Ann. § 6-2-304 (2005), was harmless testimony and the evidence was sufficient to error under Wyo. R. App. P. 9.04 because defen- sustain the convictions even taking into ac- dant had admitted to having sexual intercourse count the prejudicial effect of the prosecutor’s with the victim, and given the evidence at trial cross-examination. Jensen v. State, 2005 WY regarding whether he knew her age at the time, 85, 116 P.3d 1088, 2005 Wyo. LEXIS 101 (Wyo. which was the only real issue at trial, it was 2005). doubtful that the prosecutor’s use of the word Prosecutor’s repeated attempts to introduce “pedophile” affected the outcome of the case. evidence of prior bad acts combined with the Phillips v. State, 2007 WY 25, 151 P.3d 1131, prosecutor’s repetition of inaudible testimony 2007 Wyo. LEXIS 24 (Wyo. 2007). from the state’s prime witness constituted pros- Prohibition against counsel eliciting de- ecutorial misconduct requiring reversal and fendant’s prior convictions. — The trial remand for a new trial. Simmons v. State, 2003 court’s erroneous ruling that defense counsel WY 84, 72 P.3d 803, 2003 Wyo. LEXIS 104 could not elicit the fact of the defendant’s prior (Wyo. 2003). convictions upon direct examination was an Whether prosecutorial misconduct is re- error of constitutional magnitude, but was viewed on the basis of harmless error under nonetheless harmless error under the totality W.R.Cr.P. 52(a) and W.R.A.P. 9.04 or on the of all the evidence. Gentry v. State, 806 P.2d basis of plain error under W.R.Cr.P. 52(b) and 1269, 1991 Wyo. LEXIS 23 (Wyo. 1991). W.R.A.P. 9.05, an appellate court focuses on In order to hold improper instruction whether such error affected the accused’s sub- reversible, there must be a reasonable possi- stantial rights. Before an appellate court will bility that, in the absence of error, the verdict hold that an error has affected an accused’s might have been more favorable to a party, and substantial right, thus requiring reversal of a the burden is on the appellant to show where conviction, it must conclude that, based on the the error is prejudicial. Merely showing an entire record, a reasonable possibility exists error occurred does not create a presumption of that, in the absence of the error, the verdict prejudice as injury to an appellant. Condict v. might have been more favorable to the accused. Whitehead, Zunker, Gage, Davidson & Shot- White v. State, 2003 WY 163, 80 P.3d 642, 2003 well, P.C., 743 P.2d 880, 1987 Wyo. LEXIS 519 Wyo. LEXIS 200 (Wyo. 2003). (Wyo. 1987).

63 RULES OF APPELLATE PROCEDURE Rule 9.05

Admission of victim impact evidence. — dentally switched, and those test results were The Wyoming supreme court exercised its dis- not those of the father, the child, and the child’s cretion to overlook the government’s failure to mother, but rather were the results for three argue the harmlessness of a capital sentencing different people; therefore, any expert opinion error concerning the admission of some victim based on the first test was irrelevant as to impact evidence and the prosecutor’s comments whether the father was the child’s father. RK v. about such evidence, where (1) the sentencing- State ex rel. Natrona County Child Support phase record was neither lengthy nor complex, Enforcement Dep’t, 2008 WY 1, 174 P.3d 166, 2008 Wyo. LEXIS 1 (Wyo. 2008). (2) the harmlessness of the error was fairly Cumulative error review limited. — With certain, considering all the evidence presented, respect to cumulative error analysis, where the and (3) a reversal and remand would result in a Wyoming supreme court had identified only one protracted, costly, and ultimately futile (for the harmless error in a defendant’s previous asser- defendant) resentencing proceeding in the trial tions, the court did not need to consider this court. Moreover, under the United States Su- issue. Harlow v. State, 2003 WY 47, 70 P.3d preme Court’s Chapman harmless-error stan- 179, 2003 Wyo. LEXIS 58 (Wyo. 2003), reh’g dard, which the Wyoming supreme court had denied, 2003 Wyo. LEXIS 85 (Wyo. May 20, adopted, and bearing in mind the particular 2003), cert. denied, 540 U.S. 970, 124 S. Ct. 438, concerns about such evidence and comments 157 L. Ed. 2d 317, 2003 U.S. LEXIS 7776 (U.S. which the United States Supreme Court had 2003). identified in the Booth, Gathers, and Payne Substitute expert medical witness. — In cases, the error in the case at hand was harm- defendant’s trial for aggravated assault and less beyond a reasonable doubt. Harlow v. battery, the appearance of a substitute expert State, 2003 WY 47, 70 P.3d 179, 2003 Wyo. medical witness, to the extent that it actually LEXIS 58 (Wyo. 2003), reh’g denied, 2003 Wyo. was an error, was harmless because the medi- LEXIS 85 (Wyo. May 20, 2003), cert. denied, cal testimony was mainly directed at “severe 540 U.S. 970, 124 S. Ct. 438, 157 L. Ed. 2d 317, disfigurement” and was of little relevance to 2003 U.S. LEXIS 7776 (U.S. 2003). the battery charge against defendant. Martinez Genetic test evidence. — Even if the dis- v. State, 2009 WY 6, 199 P.3d 526, 2009 Wyo. trict court erred in applying the current version LEXIS 5 (Wyo. 2009). of Wyo. Stat. Ann. § 14-2-109(e)(ii) rather than Failure to provide notice to Cherokee the version that was in effect in 1992 in exclud- Nation in guardianship proceeding was ing the testimony of the father’s expert dis- harmless. — Despite a mother’s late asser- puted two genetic tests determining that he tions of her child’s Indian heritage, a trial court was the child’s father, the error was harmless erred by failing to require that notice be pro- because the father’s proffered evidence was vided to the Cherokee Nation prior to a guard- insufficient as a matter of law. As the labora- ianship hearing; nonetheless, the error was tory made clear, the first genetic test that harmless as the mother failed to show prejudice determined that the father was not the child’s from the error. KC v. CC (In re LNP), 2013 WY father was not simply a problem with the test 20, 294 P.3d 904, 2013 Wyo. LEXIS 23 (Wyo. itself, but rather that samples had been acci- 2013).