Wyo. R. Crim. P. 31 (2026)

Rule 31. Verdict. (a) Return. — The verdict shall be unanimous. It shall be returned by the jury to the judge in open court. (b) Several defendants. — If there are two or more defendants, the jury at any time during its deliberations may return a verdict or verdicts with respect to a defendant or defendants as to whom it has agreed; if the jury cannot agree with respect to all, the defendant or defendants as to whom it does not agree may be tried again. (c) Conviction of lesser offense. — The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense. (d) Poll of jury. — When a verdict is returned and before it is recorded the jury shall be polled at the request of any party or upon the court’s own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged.

75 RULES OF CRIMINAL PROCEDURE Rule 31

Compare. — Rule 31, Fed. Rules Cr. Proc. son v. State, 546 P.2d 412, 1976 Wyo. LEXIS Separation of powers. — No violation of 171 (Wyo. 1976). the separation of powers doctrine occurred The determination of the existence of a nec- when a trial court found a juvenile guilty of essarily included offense pursuant to subdivi- attempted shoplifting even though the juvenile sion (c) of this rule is a question of law that petition only charged shoplifting and was never justifies de novo review. Sindelar v. State, 932 amended to include a charge of attempted shop- P.2d 730, 1997 Wyo. LEXIS 10 (Wyo. 1997). lifting since a trial court may properly rely on Test for determining entitlement to Rule 31 to find a juvenile defendant guilty of a lesser-included offense instruction. — De- lesser-included or attempted offense even if not fendant is entitled to lesser-included offense originally charged. MJS v. State (In re MJS), instruction, as provided for in subdivision (c), 2001 WY 31, 20 P.3d 506, 2001 Wyo. LEXIS 40 when the following five elements are present: (Wyo. 2001). (1) a proper request is made; (2) the elements of Guilty verdict unconstitutional where the lesser offense are identical to part of the insufficient evidence to support element elements of the greater offense; (3) there is of crime. — A general verdict of guilty re- some evidence that would justify conviction of turned on an aggravated burglary count which the lesser offense; (4) the proof on the element alleged in the alternative intent to steal or or elements differentiating the two crimes is intent to commit an assault violated the defen- sufficiently in dispute so that the jury may dant’s rights to a unanimous jury verdict where consistently find the defendant innocent of the the court had already ruled as a matter of law greater and guilty of the lesser-included of- that there was insufficient evidence to support fense; and (5) there is mutuality, i.e., a charge the intent to assault element. Fife v. State, 676 may be demanded by either the prosecution or P.2d 565, 1984 Wyo. LEXIS 255 (Wyo. 1984) the defense. State v. Selig, 635 P.2d 786, 1981 (decided under former § 6-7-201). Wyo. LEXIS 383 (Wyo. 1981). Failure to object to irregularity is Statutory elements test. — Under the waiver. — Failure to object to the form or statutory elements test, one offense is not “nec- substance of a verdict within time whereby essarily included” in another unless the ele- corrective action could be obtained amounts to ments of the lesser offense are a subset of the a waiver of any irregularity, informality, ambi- elements of the charged offense; where the guity or other error in the verdict. Clegg v. lesser offense requires an element not required State, 655 P.2d 1240, 1982 Wyo. LEXIS 406 for the greater offense, no instruction is to be (Wyo. 1982). given under this rule. Sindelar v. State, 932 Purpose of subdivision (c) is to aid the P.2d 730, 1997 Wyo. LEXIS 10 (Wyo. 1997). prosecution where its proof failed to make out Both the prosecution and the defense all of the elements of the offense charged. State have an equal right to lesser included offense v. Selig, 635 P.2d 786, 1981 Wyo. LEXIS 383 instruction, in light of the fact that the lan- (Wyo. 1981). guage of subsection (c), identical to Federal Subdivision (c) is beneficial to defen- Rule 31(c), implies and requires such equality. dant because it affords the jury a less drastic State v. Keffer, 860 P.2d 1118, 1993 Wyo. LEXIS alternative than the choice between conviction 154 (Wyo. 1993). of the offense charged and acquittal. State v. Instructions regarding greater and Selig, 635 P.2d 786, 1981 Wyo. LEXIS 383 (Wyo. lesser offenses. — When a greater and lesser 1981). offense are charged to the jury, the proper Lesser included offense defined. — A course is to tell the jury to consider first the lesser included offense is one which is necessar- greater offense, and to move on to consideration ily established by proof of the greater offense, of the lesser offense only if they have some and which is properly submitted to the jury, reasonable doubt as to the guilt of the greater should the prosecution’s proof fail to establish offense. A jury that finds guilt as to the greater guilt of the greater offense charged, without offense does not enter a verdict concerning guilt necessity of multiple indictment. Evanson v. of the lesser offense. The reason for this ab- State, 546 P.2d 412, 1976 Wyo. LEXIS 171 sence of consideration is not any inconsistency (Wyo. 1976). between the offenses, but rather reflects the A crime described by statute may not be very “inclusion” that defines the lesser offense necessarily included within another statutory as one “included” in the greater. Evanson v. offense unless all of the elements within the State, 546 P.2d 412, 1976 Wyo. LEXIS 171 claimed lesser offense are to be found in the (Wyo. 1976). greater, and unless the greater offense cannot No instruction on lesser offense where be committed without also committing the pu- evidence concerns only greater. — When tative lesser offense. Balsley v. State, 668 P.2d the evidence shows that the defendant is either 1324, 1983 Wyo. LEXIS 355 (Wyo. 1983); Amin guilty or not guilty of the higher grade of the v. State, 694 P.2d 119, 1985 Wyo. LEXIS 438 offense, the court is not required to instruct on (Wyo. 1985). the lesser offense. Richmond v. State, 554 P.2d For a lesser offense to be “necessarily 1217, 1976 Wyo. LEXIS 215 (Wyo. 1976), reh’g included” in the offense charged, it must be denied, 558 P.2d 509, 1977 Wyo. LEXIS 323 such that the greater offense cannot be commit- (Wyo. 1977); State v. Selig, 635 P.2d 786, 1981 ted without also committing the lesser. Evan- Wyo. LEXIS 383 (Wyo. 1981); Amin v. State,

Rule 32 WYOMING COURT RULES 76

694 P.2d 119, 1985 Wyo. LEXIS 438 (Wyo. verdict of guilty, and it was determined that 1985). any contact the juror had with his wife to But instruct on lesser if jury could ratio- determine if his confusion was related to an nally find guilty thereof. — The defendant is insulin reaction did not relate to the case. entitled to an instruction on a lesser included Gunnett v. State, 2005 WY 8, 104 P.3d 775, offense if the evidence would permit a jury 2005 Wyo. LEXIS 10 (Wyo. 2005). rationally to find him guilty of the lesser offense Poll of the jury ensured that the verdict and acquit him of the greater. Richmond v. was unanimous. — Vargas-Rocha v. State, 891 P.2d 763, 1995 Wyo. LEXIS 37 (Wyo. 1995). State, 554 P.2d 1217, 1976 Wyo. LEXIS 215 Questioning of juror by judge. — Subdi- (Wyo. 1976), reh’g denied, 558 P.2d 509, 1977 vision (d) of this rule does not prohibit the trial Wyo. LEXIS 323 (Wyo. 1977); State v. Selig, 635 judge from questioning a juror who has given P.2d 786, 1981 Wyo. LEXIS 383 (Wyo. 1981). an uncertain or equivocal answer during the Notice invalid for improper lesser in- polling. Harris v. State, 933 P.2d 1114, 1997 cluded offense. — Where the information Wyo. LEXIS 48 (Wyo. 1997). charged defendant with only second degree The trial judge did not coerce jurors who had sexual assault, instructing jury members that indicated during polling that they disagreed defendant could be convicted for taking inde- with the verdict into accepting the verdict; the cent liberties with a child worked material judge’s questioning them was simply an at- prejudice for failure of full proper notice, re- tempt to determine whether the jurors truly quiring reversal. Derksen v. State, 845 P.2d disagreed with the jury’s verdict or whether 1383, 1993 Wyo. LEXIS 25 (Wyo. 1993). they were just confused. Harris v. State, 933 The jury has the duty to resolve conflict- P.2d 1114, 1997 Wyo. LEXIS 48 (Wyo. 1997). ing evidence, and an appellate court cannot False imprisonment is a lesser-included interfere with their verdict even if it might offense of kidnapping; however, a trial court think the conflict was resolved wrongly. Fr- did not err by refusing to give such an instruc- esquez v. State, 492 P.2d 197, 1971 Wyo. LEXIS tion because the theory of the defense, consent, 275 (Wyo. 1971). only allowed the jury to find defendant guilty or Juror’s confusion during polling. — Re- not guilty of kidnapping. Dean v. State, 2003 versal of defendant’s conviction was not war- WY 128, 77 P.3d 692, 2003 Wyo. LEXIS 155 ranted where, upon the polling of the jury (Wyo. 2003). pursuant to this section, one of the jurors Law reviews. — For article: “The Wyoming answered “No” when asked if guilty was his Criminal Code Revisited: Reflections after Fif- verdict and appeared confused. Upon further teen Years,” see XXXIII Land and Water L. Rev. deliberations the jury unanimously returned a 523 (1998).