Johnny Angel Munoz v. The State of Wyoming

IN THE SUPREME COURT, STATE OF WYOMING 2026 WY 112 OCTOBER TERM, A.D. 2026 October 15, 2026 JOHNNY ANGEL MUNOZ, Appellant (Defendant), v. S-24-0216, S-25-0188 THE STATE OF WYOMING, Appellee (Plaintiff). Appeal from the District Court of Laramie County The Honorable Catherine R. Rogers, Judge Representing Appellant: Lauren McLane, Pro Hac Vice, Laramie, Wyoming; Thomas Garvie, Rogers & Garvie, LLC, Laramie, Wyoming. Argument by Ms. McLane. Representing Appellee: Keith G. Kautz, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Kristen R. Jones, Senior Assistant Attorney General; John J. Woykovsky, Senior Assistant Attorney General. Argument by Mr. Woykovsky. Before BOOMGAARDEN, C.J., and GRAY, FENN, and JAROSH, JJ., and PEASLEY, D.J. NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume. GRAY, Justice. [¶1] A jury found Johnny Angel Munoz guilty of second-degree murder in the drive-by shooting death of BCC. On appeal, he contends the evidence was insufficient to sustain his conviction, the district court’s jury instruction on transferred intent was erroneous, and the district court erred when it denied his W.R.A.P. 21 (Rule 21) motions raising various claims of ineffective assistance of counsel. We affirm. ISSUES [¶2] We restate the issues: 1. Did the State present sufficient evidence at trial to sustain Mr. Munoz’s second-degree murder conviction? 2. Was the district court’s jury instruction on transferred intent plainly erroneous? 3. Did the district court err when it determined article 1, section 10 of the Wyoming Constitution does not provide greater protections or require a more protective prejudice standard for claims of ineffective assistance of counsel than the Sixth Amendment to the United States Constitution? 4. Did the district court err when it denied Mr. Munoz’s Rule 21 motions? FACTS [¶3] We provide a brief background of the facts here. Other relevant facts are included in the discussion of the issues. [¶4] On the evening of April 29, 2023, 15-year-old BCC, her twin sister, MCC, and their friend, SV, hosted a barbecue at SV’s house on East Seventh Street in Cheyenne, Wyoming. 1 Those attending included ZCC, JO, and JCC. Around 11:30 p.m., everyone at the barbecue walked west down the street to Lincoln Park, which is two to four houses from SV’s house. The boys played basketball, and the girls sat on or near the basketball court and talked. Shortly after midnight, a black sport utility vehicle (SUV) drove slowly by the park. The SUV’s front passenger window rolled down, and shots were fired. JO took out a Glock 9 mm handgun and returned fire in a southwest direction toward the SUV 1 Because most of the individuals were juveniles at the relevant time, we refer to them by their initials. 1 until he was out of bullets. The SUV sped away. After shots were fired from the SUV, MCC and SV noticed BCC lying on the ground, bleeding. SV called 911. [¶5] Officer Robert Wingeleth with the Cheyenne Police Department was on patrol near the park and heard the gunshots. He drove toward the sound of the gunshots and saw a black Chevy Suburban SUV (Suburban) traveling without headlights. Moments later, it began flashing its headlights on and off. He stopped the Suburban at 12:23 a.m. and, upon approaching the car, observed JE in the driver’s seat and Mr. Munoz in the front passenger seat. JT was in the middle row seat behind JE, JL sat in the middle row behind Mr. Munoz, and ST sat in the third row. JE told Officer Wingeleth they were headed to Lincoln Park to play basketball but left when they heard gunshots. Officer Wingeleth noticed Mr. Munoz “kept his eyes on [him] the whole time and [Mr. Munoz’s] hands appeared to be moving in front of him like towards his waistband at the bottom [and under] his jacket.” The Suburban did not match the color or make of the suspect vehicle described by dispatch, and Officer Wingeleth told JE and the others to go home. Officer Wingeleth then drove to Lincoln Park. [¶6] By the time Officer Wingeleth arrived, many police officers were on the scene, and one was administering CPR to BCC. BCC was transported to the hospital, where she died from a single gunshot wound to the head. A .380 automatic (auto) caliber hollow-point bullet was recovered from her head. [¶7] Although Officer Wingeleth had released the Suburban, it was later determined to match the suspect vehicle. Officers located the Suburban at JE’s home, seized it, and searched it. The search of the Suburban and the scene produced substantial evidence. Police found a box of .380 auto caliber full-metal jacket ammunition in the Suburban. At the scene, they recovered four .380 auto shell casings—three on East Seventh Street along the path the Suburban would have traveled and one in the grass along that street. The Wyoming State Crime Lab concluded those casings were fired from a single gun. Police also found fourteen 9 mm shell casings spread in a line in the grass near the basketball court. They and the Wyoming State Crime Lab concluded the casings were fired from a single weapon while the shooter was walking or running. Officers found a bullet/slug on the ground next to a bus parked just west of the basketball court. The slug had hit the bus’ rear panel and had fallen to the ground. The Wyoming State Crime Lab concluded the bullet was most likely a 9 mm and fired from either a Glock or a Heckler & Koch. In the area surrounding the park, officers discovered a bullet hole in a house located on the south side of East Seventh Street and bullet damage to two vehicles in the same vicinity. [¶8] Additional evidence included video, audio, and witness interviews. A camera at SV’s house had captured a dark SUV resembling the Suburban driving past the front of the house toward the park at approximately 12:20 a.m. Audio from a nearby doorbell camera recorded the sound of twenty gunshots in bursts of three, one, and sixteen, starting at 2 approximately 12:21 a.m. One minute later, SV’s house camera shows some of the people who had been at the park returning to the house. JO and ZCC appeared to have guns. [¶9] The police interviewed JL, who was sitting behind Mr. Munoz in the Suburban. JL also testified at trial. JL offered that he and the others in the Suburban were looking for a place to play basketball, but as the group drove toward Lincoln Park, they saw people were already playing basketball. 2 He did not see anyone in the Suburban roll down a window, but he heard 15 to 20 gunshots, covered his ears, and put his head down. Prior to hearing the gunshots, JL saw one of the males at the park turn his hat around, lift up his shirt, and reach for his waist. This person was looking at the Suburban but walking away from the Suburban toward the basketball court. He felt threatened by those actions because he thought the person was reaching for a gun. JL said if he had had a gun, he would have shot based on those actions. No one else in the Suburban said or otherwise indicated that they saw what JL described. JL told the police it was possible that Mr. Munoz fired a gun from the SUV because his ear was ringing. [¶10] The police also interviewed Mr. Munoz, who said JE picked him, JL, JT, and ST up around 11:45 p.m. and they headed to Lincoln Park to play basketball. He said JE was the driver, he was in the front passenger seat, and JL, JT, and ST were in the second and third rows of the Suburban. At the park, he saw about 15 to 20 people on or near the basketball court, and he rolled down his window to see them more clearly. As the Suburban reached just west of half-court, shots were fired. Mr. Munoz rolled up his window and JE drove off. Mr. Munoz claimed he did not see who fired from the park and denied that anyone in the Suburban had a gun. When asked what he put under his shirt when Officer Wingeleth stopped the Suburban, he said it was a vape pen. Police searched his grandparents’ house, where he was living, and found a firearm and ammunition. The firearm was not linked to any of the shell casings from the scene. [¶11] The State charged Mr. Munoz as an adult with first-degree murder in violation of Wyo. Stat. Ann. § 6-2-101(a) (Count 1) and conspiracy to commit first-degree murder in violation of Wyo. Stat. Ann. § 6-1-303(a) (Count 2). Mr. Munoz filed a motion to transfer his case to the juvenile court, which the district court denied. The matter proceeded to a jury trial. The jury was instructed on the elements of the charged crimes and on the elements of the lesser included offenses of second-degree murder, voluntary and involuntary manslaughter, and criminally negligent homicide. The jury found Mr. Munoz not guilty of first-degree murder and conspiracy to commit first-degree murder but guilty of second-degree murder. The district court sentenced him to 25–35 years in prison. Mr. Munoz appealed his conviction and sentence (Appeal No. S-24-0216). 2 JL told the police the group had a basketball. At trial, he testified he did not see a basketball inside the Suburban. No basketball was found in the Suburban when it was searched by the police. 3 [¶12] Mr. Munoz filed two W.R.A.P. 21 motions, alleging his counsel were ineffective at the juvenile transfer hearing, at trial, and at sentencing, and their cumulative deficiencies denied him a fair trial. 3 After an evidentiary hearing, the district court denied the motions. Mr. Munoz timely appealed from those denials (Appeal No. S-25-0188). We consolidated the appeals. DISCUSSION I. Did the State present sufficient evidence at trial to sustain Mr. Munoz’s second- degree murder conviction? [¶13] Mr. Munoz argues the State presented insufficient evidence at trial to sustain his second-degree murder conviction. When reviewing the sufficiency of the evidence, “we determine whether a jury could have reasonably concluded each of the elements of the crime was proven beyond a reasonable doubt.” Hultberg v. State, 2024 WY 59, ¶ 12, 549 P.3d 759, 761 (Wyo. 2024) (quoting Kobielusz v. State, 2024 WY 10, ¶ 22, 541 P.3d 1101, 1107–08 (Wyo. 2024)). In making this determination, we view “the evidence in the light most favorable to the State” and “give the State’s evidence every favorable inference which can reasonably and fairly be drawn from it.” Worley v. State, 2017 WY 3, ¶ 17, 386 P.3d 765, 771 (Wyo. 2017) (quoting Harnden v. State, 2016 WY 92, ¶ 5, 378 P.3d 611, 612–13 (Wyo. 2016)). Originally, when deciding whether there was sufficient evidence to support a conviction, we stated we do not “weigh conflicting evidence” or consider witness credibility. See, e.g., Harris v. State, 487 P.2d 800, 801 (Wyo. 1971) (“In passing upon the sufficiency of the evidence to support a verdict of guilty, an appellate court will not weigh conflicting evidence nor consider the credibility of the witnesses[.]”). That is because those tasks belong to the jury. Huckins v. State, 2020 WY 21, ¶ 16, 457 P.3d 1277, 1280 (Wyo. 2020); Baum v. State, 745 P.2d 877, 880 (Wyo. 1987). Unfortunately, over time, the language has evolved into statements that we disregard “evidence favoring the defendant” and “evidence favorable to the [defendant which] conflicts with the State’s evidence.” Hultberg, ¶ 12, 549 P.3d at 761 (quoting Kobielusz, ¶ 22, 541 P.3d at 1107); Worley, ¶ 17, 386 P.3d at 771 (quoting Harnden, ¶ 5, 378 P.3d at 613). For clarification, we return to our original language—we will not weigh conflicting evidence or judge witness credibility when determining whether the State presented sufficient evidence to support a conviction. [¶14] Mr. Munoz was convicted of second-degree murder in violation of Wyo. Stat. Ann. § 6-2-104. Under that statute, “whoever purposely and maliciously, but without premeditation, kills any human being is guilty of murder in the second degree . . . .” Wyo. 3 Mr. Munoz was represented by two attorneys from the Wyoming Public Defender’s Office. Mr. Munoz filed one of his Rule 21 motions as confidential because it addressed counsels’ representation at the juvenile transfer hearing. His other Rule 21 motion was not confidential and addressed counsels’ representation at trial and at sentencing. 4 Stat. Ann. § 6-2-104(a). “[P]urposely means that the act was intentional.” Smith v. State, 2009 WY 2, ¶ 23, 199 P.3d 1052, 1059 (Wyo. 2009). See also Lopez v. State, 2004 WY 28, ¶ 18, 86 P.3d 851, 857 (Wyo. 2004) (“When used as an element of second degree murder, ‘purposely’ means intentionally or deliberately.” (citing State v. Keffer, 860 P.2d 1118, 1138 (Wyo. 1993))). Maliciously “means that the act constituting the offense was done recklessly under circumstances manifesting an extreme indifference to the value of human life, and that the act was done without legal justification or excuse.” Wilkerson v. State, 2014 WY 136, ¶ 27, 336 P.3d 1188, 1200 (Wyo. 2014) (emphasis omitted). [¶15] Mr. Munoz first contends the State failed to prove he killed BCC. Although he denied having a gun in his interview with the police, Mr. Munoz’s appellate arguments acknowledge the State’s evidence indicates otherwise. He points to a lack of any bullet- trajectory analysis or testimony tying a bullet he fired to BCC’s death. He argues BCC was sitting closer to where the 9 mm casings were found and that JO admitted he emptied his 9 mm Glock. Katherine Bacon, the Wyoming State Crime Lab’s firearms examiner, testified she could not tell whether the fatal bullet was a 9 mm or a .380. Defense firearms expert, Evan Garrison, identified the fatal bullet as a .380 auto, but Mr. Munoz notes a .380 auto firearm was found in ZCC’s bedroom and was never tested. [¶16] Mr. Munoz next contends the State failed to prove he acted purposely and maliciously. He claims he did not fire recklessly into a crowd or open fire in a “rain of bullets” but instead fired three to four shots toward a threat. He relies on JL’s testimony and statement to the police that before any shots were fired, JL saw a person he thought was JCC approaching the Suburban, lifting up his shirt, and reaching for his waistband. JL took those actions as a reach for a gun and said that if he had had a gun, he would have fired because of that threat. Mr. Munoz asserts that by responding to what he believed to be a threat to himself and the others in the Suburban, he may have acted heedlessly or thoughtlessly but not recklessly with extreme indifference to human life. [¶17] Two of Mr. Munoz’s points misstate the record. The .380 auto firearm was not found in ZCC’s bedroom. After the shooting, police searched SV’s house, where ZCC was living, and found a .380 auto firearm in SV’s parents’ bedroom. SV’s father testified it was his gun. Next, JL did not identify the person reaching for his waistband as JCC. JL thought he had seen JCC at the park that night, but he did not testify that the person who lifted his shirt and reached for his waistband was JCC or likely JCC. He also testified the person was walking away from the Suburban, not toward it. [¶18] Giving the State every favorable inference, the evidence was sufficient for a jury to find Mr. Munoz guilty of second-degree murder. [¶19] First, the State presented sufficient evidence by which a jury could reasonably conclude Mr. Munoz killed BCC. MCC testified she was sitting with BCC, SV, and other girls at the park when she saw a vehicle slowly drive by the park, the front passenger 5 window roll down, and sparks. She also heard “a lot of booms.” After seeing the sparks, she started to stand up and saw BCC lying on the ground, bleeding. Detective Mike Fernandez from the Cheyenne Police Department testified ZCC had given an account of events during his interview with the police that was similar to MCC’s testimony. ZCC said a black vehicle drove by the park, shots were fired from the front passenger window, and sparks hit the concrete. Mr. Munoz admitted during his police interview that he was in the front passenger seat of the Suburban and he rolled down his window. His position in the Suburban was confirmed by JL’s testimony and Officer Wingeleth’s body camera video of the traffic stop. JL told the police it was possible that Mr. Munoz fired from the Suburban because JL’s ear was ringing. Officer Wingeleth testified that during the traffic stop, Mr. Munoz’s hands were moving under his jacket—conduct from which the jury could reasonably infer an effort to conceal a weapon. [¶20] The four shell casings found along the Suburban’s path were .380 auto caliber and fired from a single weapon. The fourteen 9 mm shell casings found in the grass were fired from a single weapon by someone who was moving. JO told police that after shots were fired from the Suburban, he returned fire until his 9 mm Glock was empty. Damage to the vehicles in the area was consistent with JO shooting southwest toward the Suburban. Detectives Fernandez and Damon Hall of the Cheyenne Police Department described the doorbell camera audio as an initial small burst of gunfire followed by a longer, more rapid burst. A jury could reasonably infer that Mr. Munoz fired four .380 caliber bullets from the Suburban and JO returned fire with his 9 mm Glock. [¶21] A jury could also reasonably conclude that one of Mr. Munoz’s .380 caliber bullets killed BCC. Because police found both .380 auto and 9 mm shell casings at the scene and JO admitted he had shot a 9 mm, Detective Fernandez had to determine which caliber killed BCC. He testified that a standard 9 mm bullet weighs between 115 and 125 grains and, because it is longer, generally weighs more than a .380. The bullet removed from BBC’s head weighed approximately 90 grains, so he concluded it was “[m]ost likely” a .380 caliber. Ms. Bacon agreed. While she could not rule out that the bullet which killed BCC was a 9 mm, she too opined it was “[m]ost likely” a .380. Mr. Garrison testified the fatal bullet was a .380. [¶22] The State also presented sufficient evidence by which a jury could reasonably conclude Mr. Munoz acted “purposely” and “maliciously.” While Mr. Munoz argues the evidence did not show he acted “purposely,” he does not claim the shots he fired were accidental or unintentional. See Lopez, ¶ 18, 86 P.3d at 857 (the “purposely” element of second-degree murder “means intentionally or deliberately” (quoting Keffer, 860 P.2d at 1138)). As for maliciousness, which requires an act done “recklessly under circumstances manifesting an extreme indifference to the value of human life” and “without legal justification or excuse,” Mr. Munoz argues he was responding to a threat. Wilkerson, ¶ 27, 336 P.3d at 1200. That argument is contrary to our standard of review which tasks the jury, not this Court, with weighing the conflicting evidence. The jury could have reasonably 6 rejected any evidence that Mr. Munoz was responding to a threat. What remains is the State’s evidence. Mr. Munoz fired four shots from a moving vehicle toward a group gathered at a public park, and one of those shots killed BCC. A jury could reasonably conclude that Mr. Munoz acted maliciously. II. Was the district court’s jury instruction on transferred intent plainly erroneous? [¶23] The investigation indicated Mr. Munoz’s intended target was JCC, not BCC. The State alleged Mr. Munoz was nevertheless criminally liable for killing BCC and relied on the transferred intent doctrine. Under that doctrine, a defendant is liable for killing the actual victim even if he intended to kill someone else. Murry v. State, 713 P.2d 202, 205 (Wyo. 1986). At trial, Mr. Munoz argued transferred intent could not apply to Count 2 (conspiracy to commit first-degree murder) because the State charged a conspiracy to kill BCC, not JCC. If the evidence showed a conspiracy to kill JCC, Mr. Munoz claimed that was not the conspiracy charged. The district court held that transferred intent did not apply to conspiracy, but it did apply to Count 1 (first-degree murder). The State proposed the following instruction: As applied to Count I, “transferred intent” exists when an actor intends to kill one person but kills another instead; the actor is held to . . . the same degree of culpability as if he had killed the intended victim. Mr. Munoz objected to the wording. He argued that the first line “[a]s applied to Count I” should read “[a]s applied to homicide” to track Murry, 713 P.2d at 205 (“As applied to homicide, transferred intent exists when an actor intends to kill one person but kills another instead. The actor is held to the same degree of culpability as if he had killed the intended victim.”). He maintained his proposed modification would be an “accurate statement[] of law from binding case law.” Mr. Munoz also claimed the instruction was untimely and contrary to the charges against him. The district court overruled his objections and gave the State’s proposed instruction to the jury. [¶24] On appeal, Mr. Munoz argues the instruction was erroneous because it should not have been limited to Count 1. Relying on Murry, he contends the court should have instructed the jury that transferred intent—or transferred malice—also applied to the lesser included offense of second-degree murder, to which he was ultimately convicted. Because he did not object on that ground at trial, our review is for plain error. 4 Dobbins v. State, 4 Mr. Munoz argues the district court failed to instruct on an element of second-degree murder— specifically, that malice toward JCC could transfer to BCC—and because he objected, the State has the burden of showing this error was harmless beyond a reasonable doubt. Mr. Munoz incorrectly characterizes the alleged error as a failure to instruct on an element of the offense. Transferred intent is not an element of first- or second-degree murder but rather a “theory of criminal liability for the killing of an unintended 7 2024 WY 108, ¶¶ 12–13, 557 P.3d 306, 310 (Wyo. 2024) (concluding plain error applied where defendant’s objection in the trial court was different than the argument raised on appeal); Blevins v. State, 2017 WY 43, ¶ 25, 393 P.3d 1249, 1255 (Wyo. 2017) (“[Ms. Blevins] did not object to this aspect of the jury instructions at trial; therefore, we review for plain error.” (citing Cecil v. State, 2015 WY 158, ¶ 10, 364 P.3d 1086, 1089 (Wyo. 2015))). “To establish plain error, [Mr. Munoz] must show: ‘(1) the record clearly reflects the alleged error; (2) a violation of a clear and unequivocal rule of law in a clear and obvious manner; and (3) the appellant was denied a substantial right which caused the appellant material prejudice.’” Iverson v. State, 2025 WY 19, ¶ 13, 563 P.3d 496, 499 (Wyo. 2025) (quoting Kobielusz, ¶ 24, 541 P.3d at 1108). [¶25] The first prong of the plain error test is met because the record contains the instruction at issue. We need not address the second prong because Mr. Munoz cannot establish the third prong of plain error review—material prejudice. Sullivan v. State, 2025 WY 5, ¶ 40, 561 P.3d 780, 790 (Wyo. 2025) (“Where appropriate, we address the prejudice element of the plain error test first, without addressing whether there has been a violation of a clear and unequivocal rule of law.” (quoting Leners v. State, 2021 WY 67, ¶ 23, 486 P.3d 1013, 1018 (Wyo. 2021))). See also Green v. State, 2025 WY 20, ¶ 10, 563 P.3d 1090, 1093 (Wyo. 2025) (“Failure to establish each element [of plain error] precludes a finding of plain error.” (quoting Lynch v. State, 2024 WY 79, ¶ 12, 552 P.3d 392, 397 (Wyo. 2024))). “Material prejudice exists when the appellant demonstrates a reasonable probability that the jury verdict would have been more favorable in the absence of the error.” Iverson, ¶ 13, 563 P.3d at 499 (quoting Lee v. State, 2024 WY 97, ¶ 12, 555 P.3d 496, 499 (Wyo. 2024)). [¶26] Mr. Munoz argues that because the jury instruction did not apply transferred intent to second-degree murder, the jury must have found he acted purposely and maliciously toward BCC, and the evidence was insufficient for that finding. He also contends that by requiring the jury to find he acted purposely and maliciously toward BCC, the jury never had to confront whether he acted purposely and maliciously toward JCC—despite evidence showing he was simply reacting toward JCC’s threatening behaviors—and this stripped him of his primary defense. Mr. Munoz further claims the State’s case was not particularly strong as there was very little evidence that he fired the fatal bullet. [¶27] Those arguments fail for the reasons already given. JL never identified JCC as the person who took the threatening actions. And, as shown above, a reasonable jury could find that Mr. Munoz fired the fatal shot and acted purposely and maliciously when he fired victim.” Commonwealth v. Santana-Rodriguez, 267 N.E.3d 563, 569 (Mass. 2025). See also Murry, 713 P.2d at 205. The jury was correctly instructed on the elements of first- and second-degree murder. Even if the alleged error could be deemed a failure to instruct on an element of the offense, our review would be for plain error because Mr. Munoz did not object. Iverson v. State, 2025 WY 19, ¶¶ 13, 16, 563 P.3d 496, 499–500 (Wyo. 2025) (because defendant did not object to the district court’s failure to instruct on the mens rea element, plain error review applied). 8 from a moving vehicle into a group of teenagers. There is no reasonable probability that the jury verdict would have been more favorable to Mr. Munoz had the transferred intent instruction applied to second-degree murder. III. Did the district court err when it determined article 1, section 10 of the Wyoming Constitution does not provide greater protections or require a more protective prejudice standard for claims of ineffective assistance of counsel than the Sixth Amendment to the United States Constitution? [¶28] When deciding ineffective assistance of counsel claims, this Court applies the two- prong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 80 L.Ed.2d 674 (1984). Galbreath v. State, 2015 WY 49, ¶ 5, 346 P.3d 16, 18 (Wyo. 2015). To prevail, a defendant must show (1) counsel’s performance was deficient and (2) counsel’s deficient performance prejudiced him. Strickland, 466 U.S. at 684–87, 104 S.Ct. at 2063–64. Prejudice requires “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. [¶29] In his Rule 21 motion, Mr. Munoz asserted article 1, section 10 of the Wyoming Constitution provides greater protection than the Sixth Amendment, as interpreted in Strickland, and therefore requires a more protective prejudice standard. The district court rejected this argument and applied the prejudice standard from Strickland. Mr. Munoz contends the district court erred. [¶30] “The United States Constitution provides minimum requirements for constitutional protections and states are required to ensure their laws do not provide less protection than the federal requirements. A state constitution can, however, provide greater protection than its federal counterpart.” Norgaard v. State, 2014 WY 157, ¶ 24, 339 P.3d 267, 274 (Wyo. 2014) (citations omitted). In determining whether the Wyoming Constitution goes further, the Court considers six nonexclusive criteria often referred to as the Saldana factors: “1) the textual language of the provisions; 2) differences in the texts; 3) constitutional history; 4) preexisting state law; 5) structural differences; and 6) matters of particular state or local concern.” Kovach v. State, 2013 WY 46, ¶ 45, 299 P.3d 97, 111 (Wyo. 2013) (quoting O’Boyle v. State, 2005 WY 83, ¶ 24, 117 P.3d 401, 408 (Wyo. 2005)). See also Saldana v. State, 846 P.2d 604, 622 (Wyo. 1993) (Golden, J., concurring). Mr. Munoz relies on the first, third, fifth, and sixth factors. He also points out the textual differences between article 1, section 10, and the Sixth Amendment, which implicates the second factor. We address the first, second, and fifth factors together as they are “intertwined.” Hicks v. State, 2025 WY 113, ¶ 59, 578 P.3d 366, 384 (Wyo. 2025) (citing Mogard v. City of Laramie, 2001 WY 88, ¶ 8, 32 P.3d 313, 316 (Wyo. 2001)). A. Textual Language, Differences in the Text, and Structural Differences 9 [¶31] The Sixth Amendment of the United States Constitution states in relevant part: “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” Article 1, section 10 of the Wyoming Constitution provides: “In all criminal prosecutions the accused shall have the right to defend . . . by counsel[.]” Mr. Munoz turns to 1889 definitions in effect when the Wyoming Constitution was ratified. He says “defend” meant “[t]o vindicate; uphold; maintain by force, argument or evidence” while the word “assistance” merely meant “help; aid; furtherance; succor; a contribution in aid, by bodily strength or other means.” The Century Dictionary 348, 1501 (1889). He argues the framers could have used “assistance” as the Sixth Amendment does, but instead they “selected the far more affirmative [defend] language.” 5 According to Mr. Munoz, “assistance” is a broad word—help or aid—that allows for many levels of lawyer performance and is the basis for the Strickland prejudice standard. In contrast, “defend” is narrower—vindicate—and more demanding. From that contrast, Mr. Munoz contends article 1, section 10 requires a stricter prejudice standard than the Sixth Amendment. [¶32] When interpreting the Wyoming Constitution, “[w]e are guided primarily by the intent of the drafters.” Cantrell v. Sweetwater Cnty. Sch. Dist. No. 2, 2006 WY 57, ¶ 6, 133 P.3d 983, 985 (Wyo. 2006) (citing Cathcart v. Meyer, 2004 WY 49, ¶ 39, 88 P.3d 1050, 1065 (Wyo. 2004)). “In determining that intent, we look first to the plain and unambiguous language used in the text of the constitution. If the language is plain and unambiguous, there is no room left for construction.” Gordon v. State by & through Capitol Bldg. Rehab., 2018 WY 32, ¶ 30, 413 P.3d 1093, 1103 (Wyo. 2018), overruled on other ground by State v. Johnson, 2026 WY 1, 582 P.3d 380 (Wyo. 2026) (citations omitted). [¶33] Mr. Munoz is correct that in determining the drafters’ intent, “we attempt to understand the meaning of the words at the time [article 1, section 10] was ratified [in 1889].” Gordon, ¶ 31, 413 P.3d at 1103 (citing Powers v. State, 2014 WY 15, ¶ 36, 318 P.3d 300, 313 (Wyo. 2014)). He correctly cites the 1889 definitions of “defend” and “assistance” using The Century Dictionary 348, 1501 (1889). But he ignores article 1, section 10’s “right to defend” is “by counsel,” and the Sixth Amendment’s right to the assistance of counsel is “for his defence.” In 1889, “by” meant “[t]hrough the use of; with the aid of, as means.” The Century Dictionary 741 (1889). When the United States Constitution was ratified, “defence” meant “[v]indication; justification; apology.” A Dictionary of the English Language (4th ed. 1773). In 1889, it meant “[t]he act of maintaining, supporting, or vindicating by force or argument.” The Century Dictionary 5 Mr. Munoz also notes that the word “defend” appears only three times in the Wyoming Constitution— twice in article 1, section 10 and once in article 6, section 20, which provides the oath judicial officers and state senators and representatives take to defend the Wyoming Constitution. He says the limited use shows us the importance of the “right to defend . . . by counsel” in article 1, section 10. The right to counsel is important, but the number of times the word “defend” appears in the Wyoming Constitution is not determinative. We look for the framers’ intent using the plain and ordinary meaning of the words used. 10 1501 (1889). Article 1, section 10 is plain and unambiguous. It gives defendants the right to defend—vindicate themselves—through the use of and with the aid of counsel. The Sixth Amendment is equally plain. It gives defendants the right to a “defence”—to vindicate themselves—through the use of and with the aid of counsel. Properly construed, there is no meaningful difference between the right to counsel in article 1, section 10 and the right to counsel in the Sixth Amendment. [¶34] Mr. Munoz claims structural differences between the Wyoming and United States Constitutions support an expansive view of article 1, section 10’s “right to defend” language. Specifically, he contends “[t]he Wyoming Constitution’s Declaration of Rights boasts thirty-nine separate provisions consisting of numerous individual rights beyond the federal constitution’s original ten Bill of Rights. . . . Such a robust declaration of rights supports an expansive view of article 1, section 10’s ‘right to defend’ language.” We rejected a similar argument in Mogard, ¶¶ 11–12, 32 P.3d at 316–17. There, the question before us was whether article 1, section 10 gives a defendant the right to consult with an attorney before deciding whether or not to submit to chemical blood alcohol testing, even though this Court had already held that the Fifth and Sixth Amendments do not. Mogard, ¶¶ 2, 4, 32 P.3d at 314–15. Mr. Mogard relied on the debates of the Wyoming Constitutional Convention to demonstrate article 1, section 10 created a right to counsel before a defendant decides whether to submit to a chemical blood test. Id. ¶ 11, 32 P.3d at 316–17. While we noted his “effort [was] laudable,” we rejected the notion that the inclusion of individual rights in the Wyoming Constitution indicated an intent to provide greater protection of individual rights than the United States Constitution. Id. ¶ 11, 32 P.3d at 317. Instead, we concluded: The most that can be definitely ascertained from the differences in the constitutional histories of the two documents may well be explained by the simple fact that it was the prevailing view that protection of individual rights was considered to be the province of the state and the federal rights acted only upon the federal government, and the Wyoming drafters acted accordingly. Id. ¶ 12, 32 P.3d at 317 (quoting Vasquez v. State, 990 P.2d 476, 484 (Wyo. 1999)). 6 The structural differences between the Wyoming and United States Constitutions do not indicate an intent for article 1, section 10 to offer greater protection to the right to counsel than the Sixth Amendment. 6 Mr. Munoz argues the district court erred by relying on Mogard because it addressed the right to counsel prior to submitting to chemical blood alcohol testing, and Mr. Mogard raised different arguments regarding the Saldana factors. While Mr. Munoz is correct on the differences between this case and Mogard, much of the discussion in Mogard regarding the Saldana factors addressed, in general, the right to counsel in article 1, section 10 and the Sixth Amendment and is applicable here. 11 B. Constitutional History [¶35] Mr. Munoz argues Wyoming’s constitutional history illustrates our founders intended to provide more protections to Wyoming residents than those provided by the United States Constitution. He points to the 1889 Wyoming Constitutional Convention debates and the delegates’ focus on limiting legislative power. To that end, he notes they included 37 separate provisions in the Wyoming Constitution prohibiting local and specialized laws and created an independent judiciary as a “guardian of individual rights.” From the “expansive treatment of individual rights” and the framers’ “faith in the courts to faithfully uphold the Wyoming Constitution,” Mr. Munoz infers that article 1, section 10 was meant to be more protective of the right to counsel than the Sixth Amendment. 7 “Constitutional history is generally not dispositive when the text of a constitutional provision is clear and unambiguous.” Hicks, ¶ 69, 578 P.3d at 386. As explained above, the “right to defend . . . by counsel” is not ambiguous. This argument therefore does not support a different prejudice standard. Even if history were considered, a general intent to limit the legislature and protect individual rights does not support Mr. Munoz’s argument. C. Matters of Particular State or Local Concern [¶36] “The [sixth] Saldana factor considers whether the subject matter is local in character, or whether there is a need for national uniformity.” Hicks, ¶ 73, 578 P.3d at 387. The right to counsel is not a matter of state or local concern. It is an individual right identified in both the United States and Wyoming Constitutions and available to all citizens. “[N]o presumption or inference arises that the state would have some particular[ized] interest in setting a different standard than did the framers of the federal constitution.” Mogard, ¶ 16, 32 P.3d at 318. [¶37] Mr. Munoz does not seriously argue otherwise. Instead, he claims this Court has “explicitly recognized the unwieldiness of the Sixth Amendment’s prejudice prong.” He relies on Shongutsie v. State, 827 P.2d 361, 366–67 (Wyo. 1992), where—unlike the federal standard—we held prejudice is presumed when a defendant shows a violation of the right to conflict-free counsel. He cites Justice Voigt’s concurrence in Osborne v. State that Strickland prejudice is nearly impossible to prove. See Osborne v. State, 2012 WY 123, ¶ 28, 285 P.3d 248, 253 (Wyo. 2012) (Voigt, J., specially concurring) (“The problem is that, while it is often relatively easy to prove defense counsel’s deficient performance, it 7 Mr. Munoz also points out that during the 1889 Wyoming Constitutional Convention, the delegates were heavily influenced by western territories, such as the Dakotas, Montana, Washington, and Idaho, each of which adopted similar or identical language in their constitutions as Wyoming’s article 1, section 10. When determining whether our constitution provides more protection than its federal counterpart, we can compare the text of our constitution with the text of other state constitutions for “textual guidance.” Hicks, ¶ 65, 578 P.3d at 386