Wyo. R. App. P. 9.05 (2026)

Rule 9.05. Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.

Source. — Former Rule 49(b), W.R.Cr.P. 1981); Bradley v. State, 635 P.2d 1161, 1981 Failure to object constitutes waiver of Wyo. LEXIS 391 (Wyo. 1981); Hopkinson v. whatever error occurred, unless the error rises State, 664 P.2d 43, 1983 Wyo. LEXIS 325 to the level of plain error. Bradley v. State, 635 (Wyo.), cert. denied, 464 U.S. 908, 104 S. Ct. P.2d 1161, 1981 Wyo. LEXIS 391 (Wyo. 1981). 262, 78 L. Ed. 2d 246 (U.S. 1983); Westmark v. Inexcusable and unreasonably delayed State, 693 P.2d 220, 1984 Wyo. LEXIS 354 objection may constitute waiver of any er- (Wyo. 1984), limited, Summers v. State, 725 ror. Shaffer v. State, 640 P.2d 88, 1982 Wyo. P.2d 1033, 1986 Wyo. LEXIS 614 (Wyo. 1986). LEXIS 297 (Wyo. 1982). In order to invoke the plain-error doctrine, Three-part test for determining plain several elements must first be established: error. — For error to qualify as plain error, first, the record must clearly show what oc- there must be: (1) a clear record of what hap- curred at the trial without resort to specula- pened at the hearing; (2) there must be a clear tion; second, the existence of a clear and un- and unequivocable rule of law shown to exist; equivocal rule of law must have been violated and (3) the facts of the case must clearly and in an obvious way; and third, this violation obviously transgress the rule of law. Once this must have adversely affected some substantial three-part test is satisfied, it still must be right of the accused. Browder v. State, 639 P.2d shown that a substantial right of the accused 889, 1982 Wyo. LEXIS 289 (Wyo. 1982); has been adversely affected. Mason v. State, McLaughlin v. State, 780 P.2d 964, 1989 Wyo. 631 P.2d 1051, 1981 Wyo. LEXIS 363 (Wyo. LEXIS 204 (Wyo. 1989).

Rule 9.05 WYOMING COURT RULES 64

Plain error not shown. — Worker could fected, inasmuch as the confession was not not show plain error in a district court’s deci- made during custodial detention and was made sion to preclude a rebuttal witness’s testimony voluntarily after the defendant had been ad- because the worker could not show that the vised of his constitutional rights. Wunder v. decision transgressed any clear and unequivo- State, 705 P.2d 333, 1985 Wyo. LEXIS 540 cal rule of law because: (1) the worker did not (Wyo. 1985). object to the ruling precluding him from calling Trial court may ascertain whether pro- the rebuttal witness to testify as a rebuttal spective jurors can act only on evidence witness; (2) the worker did not ask to make a presented. — The defendant-appellant failed formal offer of proof showing why the rebuttal to establish that the trial court could not have witness’s testimony was important, why he was reasonably concluded other than his questions not called to testify in the worker’s case-in- on voir dire were proper and were directed only chief, or why the use of his deposition testimony to ascertain whether or not the prospective in cross-examining the expert witness was not jurors could act only on the evidence presented sufficient; and (3) the district court had broad in court, or that the trial court acted beyond the discretion in deciding whether to allow evi- bounds of reason in its attempt to explain to the dence. Case v. Outback Pipe Haulers, 2007 WY prospective jurors that which was necessary to 181, 171 P.3d 514, 2007 Wyo. LEXIS 193 (Wyo. them to give a fair and impartial consideration 2007). to the case. He did not establish the violation of Where defendant was convicted of two counts a clear or unequivocal rule of law and, hence, of possession of a controlled substance in viola- did not establish plain error. Gresham v. State, tion of Wyo. Stat. Ann. § 35-7-1031(c)(ii) and 708 P.2d 49, 1985 Wyo. LEXIS 593 (Wyo. 1985). two counts of possession of a controlled sub- Where prosecutorial misconduct al- stance with intent to deliver in violation of Wyo. leged. — Whether prosecutorial misconduct Stat. Ann. § 35-7-1031(a)(i), he failed to object has been reviewed on the basis of harmless to the State’s evidence at trial; therefore, plain error, Rule 9.04, or on the basis of plain error, error review applied on appeal under Wyo. R. Rule 9.05, the focus is on whether such error App. P. 9.05; Wyo. R. Crim. P. 52(b). The Su- affected the accused’s substantial rights. Earll preme Court of Wyoming held that the trial v. State, 2001 WY 66, 29 P.3d 787, 2001 Wyo. court did not commit plain error by (1) allowing LEXIS 81 (Wyo. 2001). the prosecution to introduce evidence of drug Prosecutor’s repeated attempts to introduce sales that did not directly involve defendant evidence of prior bad acts combined with the but led to his investigation and arrest; (2) prosecutor’s repetition of inaudible testimony allowing the prosecutor’s closing remarks urg- from the state’s prime witness constituted pros- ing the jurors to help fight the drug problem; ecutorial misconduct requiring reversal and and (3) allowing a special agent to testify that remand for a new trial. Simmons v. State, 2003 methamphetamine was a major problem. Her- WY 84, 72 P.3d 803, 2003 Wyo. LEXIS 104 nandez v. State, 2010 WY 33, 227 P.3d 315, (Wyo. 2003). 2010 Wyo. LEXIS 37 (Wyo. 2010). Whether prosecutorial misconduct is re- Under a plain error review, defendant failed viewed on the basis of harmless error under to establish the juvenile court violated any Wyo. R. Crim. P. 52(a) and Wyo. R. App. P. 9.04 clear and unequivocal rule of law by imposing a or on the basis of plain error under Wyo. R. probationary term for a range of months be- Crim. P. 52(b) and Wyo. R. App. P. 9.05, an cause the juvenile court’s decision to place appellate court focuses on whether such error defendant on supervised probation for a range affected the accused’s substantial rights. Before of three to six months fell within the sanction an appellate court will hold that an error has guidelines and was within the juvenile court’s affected an accused’s substantial right, thus broad discretion under subsection (a)(i); there requiring reversal of a conviction, it must con- is no mandate that the probationary term be for clude that, based on the entire record, a reason- a specific number of months. MBP v. State, able possibility exists that, in the absence of the 2022 WY 114, 517 P.3d 542, 2022 Wyo. LEXIS error, the verdict might have been more favor- 115 (Wyo. 2022). able to the accused. White v. State, 2003 WY Whole record viewed in determining oc- 163, 80 P.3d 642, 2003 Wyo. LEXIS 200 (Wyo. currence of plain error. — In determining 2003). whether plain error has occurred, the facts of a Where defendant fired two shots at police case must be viewed in light of the trial record officers and was subsequently convicted of ag- as a whole and not as to whether any one single gravated assault with a deadly weapon, even incident standing alone would be reversible. assuming, for purposes of defendant’s appeal of Browder v. State, 639 P.2d 889, 1982 Wyo. the habitual offender charge, validity of alleged LEXIS 289 (Wyo. 1982). errors that he was denied due process and a fair Not plain error not to subject otherwise trial, that his pretrial motion to dismiss the legal confession to predetermination of habitual offender charge was improperly de- voluntariness. — The court did not commit nied, and that there was prosecutorial miscon- plain error when, in the absence of any request, duct, defendant failed to show that he was it did not subject the defendant’s confession to a prejudiced by those errors; his belief that his predetermination of voluntariness. No substan- sentence would have been more lenient if he tial right of the defendant was adversely af- pled guilty was purely speculative, ignored the

65 RULES OF APPELLATE PROCEDURE Rule 9.06

district court’s duty to consider the crime and However, even though the substantial rights of its circumstances, and disregarded the fact that the plaintiff were affected, because of the op- the officers’ testimony would have come before portunity to correct the verdict offered by § 1- the district court at sentencing even if defen- 11-213, which the plaintiff didn’t take advan- dant had pled guilty to the aggravated assault tage of, this error was waived. Goggins v. charge. Hopson v. State, 2006 WY 32, 130 P.3d Harwood, 704 P.2d 1282, 1985 Wyo. LEXIS 526 494, 2006 Wyo. LEXIS 35 (Wyo. 2006). (Wyo. 1985). In a criminal trial for burglary, where defen- No transgression of clear rule of law. — dant did not object at trial to the state’s rebut- See Wyoming Sawmills v. Morris, 756 P.2d 774, tal closing argument, Wyo. R. App. P. 9.05 1988 Wyo. LEXIS 92 (Wyo. 1988). permitted defendant to challenge statements Failure to give presumption of inno- on appeal that allegedly diluted the state’s cence instruction. — Where defendant was burden of proof, argued facts not in evidence, convicted of aggravated robbery and aggra- and presented a community outrage argument, vated assault and battery, the evidence of his and the Supreme Court of Wyoming found no guilt was substantial: one witness fingered de- showing of error or prejudice; the essence of the fendant as the masked gunman and provided a prosecutor’s argument was that there was suf- detailed account of the events surrounding the ficient evidence for the jury to convict defen- robbery; another witness recounted his conver- dant, the argument was supported by the re- sations wherein defendant admitted to commit- cord, and the community outrage argument did ting the robbery. The Supreme Court of Wyo- not approach the level of “join the war on ming held that defendant’s unpreserved claim crime/send a message to criminals” condemned of error concerning the trial court’s failure to in other cases. Harris v. State, 2008 WY 23, 177 instruct the jury on the presumption of inno- P.3d 1166, 2008 Wyo. LEXIS 24 (Wyo. 2008). cence was not plain error under this rule. Where prosecutor’s conduct adversely Bloomer v. State, 2010 WY 88, 233 P.3d 971, affected defendant’s substantial right to 2010 Wyo. LEXIS 96 (Wyo.), cert. denied, 562 fair trial. — Where the prosecutor, in his U.S. 1017, 131 S. Ct. 540, 178 L. Ed. 2d 396, rebuttal, in essence repeatedly told the jury 2010 U.S. LEXIS 8437 (U.S. 2010). that “if you don’t convict these people you are Arguing instruction to jury waives er- calling me a liar,” the continuous disregard of ror. — A party who failed to object to an the rules by the prosecutor is so great as to instruction and, in fact, argued that instruction adversely affect the defendant’s substantial to the jury in his closing argument, failed to right to a fair trial. Browder v. State, 639 P.2d sustain the burden of proof of error in the trial 889, 1982 Wyo. LEXIS 289 (Wyo. 1982). proceedings. Triton Coal Co. v. Mobil Coal Pro- It was not plain error not to let jury ducing, 800 P.2d 505, 1990 Wyo. LEXIS 130 retire for the evening after a full day of trial, (Wyo. 1990). and to allow it to deliberate until around mid- Jury instructions to be given in court. — night. Munden v. State, 698 P.2d 621, 1985 Where after the jury made known its desire to Wyo. LEXIS 473 (Wyo. 1985). be informed concerning a part of the law arising Plaintiff waives error in verdict im- in the case, the requirement of the statute to proper on its face by failing to object. — “conduct them to the court where information Although there was no inherent error in telling upon the matter of law shall be given” was not the jury what the plaintiff ’s burden of proof followed, nor was the instruction made part of was and that it must decide whether the plain- the record as required by § 1-11-205(a)(vii) and tiff ’s injuries were caused by the alleged as- even though an objection was not made thereto sault and battery, and then instructing the jury (in fact, there is indication to the contrary, i.e., to assess damages without regard to its find- that it was done with the approval of counsel), ings concerning the fact of the assault and there was plain error in the proceedings. whether or not it proximately caused any inju- Rissler & McMurry v. Snodgrass, 854 P.2d 69, ries, it was impossible to reconcile the jury’s 1993 Wyo. LEXIS 101 (Wyo. 1993), reh’g de- findings that there was an assault and battery nied, 1993 Wyo. LEXIS 128 (Wyo. July 20, and that the assault was not a “proximate 1993). cause of the injuries” with the testimony of the Law reviews. — For case note, “Criminal treating doctors who testified without conflict Procedure — Improper Comment Upon Post- that the plaintiff in fact received injuries re- Arrest Silence: Wyoming Returns to the Preju- sulting in the necessity to prescribe and pur- dicial Per Se Rule. Westmark v. State, 693 P.2d chase medication. Therefore, the verdict of the 220 (Wyo. 1984),” see XXI Land & Water L. Rev. jury was inconsistent and improper on its face. 231 (1986).