Joseph R. Walker v. The State of Wyoming
Citation521 P.3d 967, 2022 WY 158
Date Filed2022-12-19
DocketS-22-0042
Cited6 times
StatusPublished
Full Opinion (html_with_citations)
IN THE SUPREME COURT, STATE OF WYOMING
2022 WY 158
OCTOBER TERM, A.D. 2022
December 19, 2022
JOSEPH R. WALKER,
Appellant
(Defendant),
v.
S-21-0045, S-22-0042
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Campbell County
The Honorable John R. Perry, Judge
Representing Appellant:
Office of the State Public Defender: Diane Lozano, Wyoming State Public
Defender; Kirk A. Morgan, Chief Appellate Counsel; Francis H. McVay, Senior
Assistant Appellate Counsel. Argument by Mr. McVay.
Representing Appellee:
Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney
General; Joshua C. Eames*, Senior Assistant Attorney General; Donovan Burton,
Assistant Attorney General. Argument by Mr. Burton.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.
* An Order Allowing Withdrawal of Counsel was entered on August 1, 2022.
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] Joseph Walker was charged with five counts of third-degree sexual abuse of a minor
and one count of attempted second-degree sexual abuse of a minor (Count VI) for acts that
occurred between January 19, 2020, to February 9, 2020. At trial, the jury instructions
contained identical language for the basis of conviction on Counts I through V. The jury
found Mr. Walker guilty of Counts I, II, III, and VI, but acquitted him of Counts IV and V.
Mr. Walker appeals his convictions on Counts I, II, III, and VI, claiming the jury
instructions were insufficient to direct the jury to a unanimous verdict on each count. We
affirm Mr. Walkerâs convictions on Counts I and VI, and reverse his convictions on Counts
II and III.
ISSUE
[¶2] Were the jury instructions plainly erroneous because they did not differentiate
between the five counts of third-degree sexual abuse of a minor, inviting the possibility of
juror confusion?
FACTS
A. Events Leading to the Charges
[¶3] In January 2020, 34-year-old Mr. Walker moved in with the R family. Mr. and Mrs.
R lived in Campbell County with their children, KR (female 15), FR (female 13), AR
(female 11), MR (female 9), and DR (male 4). On February 9, 2020, Mrs. R was at the
mall with 11-year-old AR when AR told her mother that about a week earlier KR had
confided that âsomething happenedâ with Mr. Walker in KRâs bedroom. Mrs. R
immediately returned home to talk to KR, who told her that Mr. Walker had inappropriately
touched her on more than one occasion. Mrs. R took the two girls to the Campbell County
Sheriffâs Department.
[¶4] Sergeant Janaia Hyland, the head of the investigation division, accompanied by
Investigator Josh Knittel took Mrs. Râs report. After speaking with Mrs. R, Sergeant
Hyland interviewed KR alone for âroughly, an hour.â KR disclosed Mr. Walker had
touched her vaginal area five to ten times in her bedroom. KR stated the first time he
touched her was about a week to two weeks after Mr. Walker moved into the R home, and
that the last time was approximately two weeks before the interview. KR also reported that
on one occasion Mr. Walker attempted to place his face on her vagina, but she pushed him
away and ran out of the bedroom.
[¶5] Following these interviews, Sergeant Hyland and Investigator Knittel located Mr.
Walker, and he agreed to accompany them to the station. At the station, Mr. Walker denied
1
the allegations. Investigator Knittel placed Mr. Walker under arrest for third-degree sexual
abuse of a minor, and Mr. Walker was transported to the detention center.
B. The Charges
[¶6] A Felony Information was issued on February 11, 2020, charging Mr. Walker with
six counts of third-degree sexual abuse of a minor in violation of Wyo. Stat. Ann. § 6-2-
316(a)(i). Counts I through VI initially contained identical language:
On or between January 19, 2020, to February 9, 2020,
in Campbell County, Wyoming, under circumstances not
constituting sexual abuse of a minor in the first or second
degree as defined by Wyoming Statutes § 6-2-314 and § 6-2-
315, engaged in sexual contact with a victim who was thirteen
(13) through fifteen (15) years of age and the actor being
seventeen (17) years of age or older with the victim being at
least four (4) years younger than the actor, Third Degree
Sexual Abuse of a Minor, in violation of Wyoming Statute
§ 6-2-316(a)(i), a felony, punishable under Wyoming Statutes
§ 6-2-316(b) and § 6-10-102, by imprisonment for not more
than fifteen (15) years, to which a fine of not more than
$10,000.00 may be added;
[¶7] Count VI was later amended from third-degree sexual abuse of a minor to attempted
second-degree sexual abuse of a minor. The amended count stated:
On or between January 19, 2020, to February 9, 2020,
in Campbell County, Wyoming, with intent to commit a crime,
did an act which was a substantial step towards the commission
of the crime, under circumstances not constituting sexual abuse
of a minor in the first or second degree as defined by Wyoming
Statutes § 6-2-314 and § 6-2-315, did attempt to inflict sexual
intrusion on a victim who was thirteen (13) through fifteen (15)
years of age, and the actor being seventeen (17) years of age or
older with the victim being at least four (4) years younger than
the actor, Attempted Second Degree Sexual Abuse of a
Minor, in violation of Wyoming Statute § 6-2-315(a)(i) and
§ 6-1-301(a)(i), a felony, punishable under Wyoming Statutes
§ 6-2-315(b) and § 6-10-102, by imprisonment for not more
than twenty (20) years, to which a fine of not more than
$10,000.00 may be added.
2
[¶8] Mr. Walker filed a Motion for Bill of Particulars, arguing that the charging
document was legally insufficient. 1 He argued that the absence of any distinguishing facts
between Counts I through V prevented him from preparing an adequate defense and denied
him a unanimous jury verdict because âone juror could convict on one instan[ce] of
touching believing it was Count [I], while another juror could believe that [the same]
occurrence applied to a different count[.]â The district court granted Mr. Walkerâs motion.
[¶9] The State responded:
The most logical way to differentiate Counts IâV,
because the behavior of Mr. Walker is so similar between
occasions, would be to call the events first, second, third, etc.
That will allow the jury to differentiate the counts.
Theoretically a jury member could say as to Count I that Mr.
Walker is Guilty of Third-Degree Sexual Abuse for the second
time he entered her room [Mr. Walkerâs first entry was not
charged] but not guilty for the third, fourth, fifth, and sixth
time.
1
The content of a felony information is governed by W.R.Cr.P. 3(b)(2) which states in relevant part:
(b) Nature and contents.â
. . .
(2) Information.âThe information shall be a plain, concise
and definite written statement of the essential facts constituting
the offense charged. When multiple counts are involved, the facts
must be stated with sufficient particularity so as to allow the
defendant and court to distinguish between the various counts. It
shall be signed by the attorney for the state. It need not contain a
formal commencement, a formal conclusion or any other matter
not necessary to such statement. Allegations made in one count
may be incorporated by reference in another count. It may be
alleged in a single count that the means by which the defendant
committed the offense are unknown or that the defendant
committed it by one or more specified means. The information
shall state:
(A) The name of the court where it was filed;
(B) The names of the state and the defendant if the
defendant is known, and, if not, then any names or
description by which the defendant can be identified with
reasonable certainty; and
(C) For each count the official or customary citation
of the statute, rule, regulation or other provision of law
which the defendant is alleged therein to have violated.
W.R.Cr.P. 3(b)(2) (emphasis added). The italicized language was added March 24, 2020, effective July 1,
2020, and was not part of the rule in effect when Mr. Walker was charged.
3
The State filed a Bill of Particulars on May 15, 2020, and the matter proceeded to trial on
September 9, 2020.
C. The Trial
[¶10] At trial, the State called five witnesses. Mrs. R testified to the events leading to her
discovery of KRâs allegations, the subsequent report to law enforcement, and FRâs frequent
overnight visits with a friend during the time the acts occurred. AR testified about KR
telling her what happened and âblurt[ing] . . . outâ the secret to her mother. FR testified
that during the relevant timeframe, she spent weekends and Monday and Tuesday nights at
a friendâs house. Sergeant Hyland testified about the steps in her investigation and her
interview of KR. In the interview, KR divulged that Mr. Walker had entered her bedroom
between five and ten times and had placed his hand on her vagina outside of her panties.
Sergeant Hyland stated KR appeared calm during the interview, was responsive to
questions, and was able to track what happened and how it occurred. KR estimated it was
over a week, between a week and two weeks, after he moved into the R home that Mr.
Walker began to touch her, and these episodes ended approximately two weeks before the
interview. The final evidence introduced was the stipulated testimony of Investigator
Knittel. The district court read Investigator Knittelâs affidavit where he attested that he
sought and was granted a search warrant for Mr. Walkerâs cell phone and that after
extracting the information, nothing of evidentiary value was found.
[¶11] The only evidence of what occurred between KR and Mr. Walker came through
KRâs testimony. Because the jury necessarily relied on KRâs testimony for the factual
basis for each charge, we set forth her testimony in detail.
1. Direct Examination:
Q. Whatâs the first interaction you remember having with
Mr. Walker?
A. Well, he sat â I was, like, in the living room, messing
with my phone or tablet, and he sat right beside me, where I â
[o]n the couch, and he started to talk to me and I didnât know
really what to say that much, so . . . .
Q. Now, after that interaction in the living room, did you
have interaction with him again?
A. Yes, sir.
Q. [A]nd where was that at?
A. My room.
Q. [W]hat were you doing in your room?
A. Messing around with my phone.
Q. . . . . Were you going to bed or were you just hanging
out in your room?
4
A. I was just hanging out in my room.
Q. [W]hat happened?
A. Well, he sat in the corner of my bed and started talking,
trying to get to know me and then he started, like petting me
on the stomach, around my chest. He didnât actually touch; he
just rubbed around.
. . .
Q. And about how long after he moved in did that happen?
A. I think it was, like, a week or something.
Q. . . . . And was that the only time [he] came into your
room?
A. No. . . . [I]t isnât.
Q. So letâs talk about the second time he came into your
room, if we can. What were you doing in your room?
A. Messing around with my phone, like . . . .
Q. Was it the middle of the day? The night? Or what was
it?
A. I donât really remember the time, but I know I was just
messing around with my phone, laying down. . . .
Q. And what happened?
A. Um, he started touching again, started telling me, like,
he wanted to be part of the family . . . .
Q. And the second time he came into the room, where was
he touching you that time?
A. Iâm pretty sure he was touching me in the privates, you
know, rubbing on me still.
Q. [A]nd when you say your privates, what part are you
talking about?
A. Um, like, this area. (Indicating.)
Q. [Y]our vagina?
A. Yes, sir.
Q. [W]hat part of his body was he using to touch your
vagina?
A. His hands. . . .
Q. [W]hen you spoke to Sergeant Hyland, I think you said
that you think this happened 5 to 10 times; is that right?
A. Yes, sir.
Q. . . . . And was the . . . third time he came into your room,
was it basically like the second?
A. Yeah. Iâm pretty sure. . . .
Q. So when you say you think he touched your vagina â
A. No, I mean, like, I think that the third day he may or â
like, he â I donât know if it was the, like, third day or the fourth
5
day heâd gone far, but, like, thatâs what Iâm saying. . . . [B]ut I
know for a fact he did.
Q. [W]as there a time where he tried to touch you with
something other than his hands in your private?
A. Oh, well, he tried to put his face up to it.
Q. Did he say anything?
A. Yes.
Q. What did he say?
A. He said, Can â can I please come eat you[?]
Q. . . . . And did you take that to mean to lick your vagina?
A. Yes, sir.
Q. [T]ell us what happened there.
A. I started to â he started getting really close, and I started
pushing him away. Then I got up and ran in the kitchen, I
think, or in the living room. . . .
Q. [H]ow close did his face get to your vagina.
A. Like, right here. (Indicating.)
Q. Just a few inches away?
A. Yes, sir.
Q. . . . . Did he do anything with your clothing at that time?
A. . . . I guess he tried to, like, take the flap, or whatever
itâs called, off. . . .
Q. [H]e just tried to move it to the side?
A. Yes, sir. . . .
Q. [T]he time that Mr. Walker came into your room and
tried to move your underwear to put his face down there, was
that in your room as well?
A. Yes, sir.
Q. And you were in bed?
A. Yes, sir.
Q. [W]as that one of the times that he also touched you
with his hands[?]
A. Yeah, but, not, like, while doing it.
Q. Not like what?
A. Not while â like â not while he put his face under there,
but, like, he â he tried to, like, move my underwear, but, like,
he didnât try to â he did it before he â
Q. Okay. So he touched . . . your vagina with his hand
before he tried to . . . put his face down there.
A. Yes.
Q. [W]as that the last time or one of the last times that he
went into your room?
A. No. . . . Iâm pretty sure.
6
Q. [S]o youâve said that the third time was . . . like the . . .
second time where he came in and touched your vagina with
his hands over your clothes[?]
A. Actually, I think I was in my underwear at the time. . . .
I think, like, the first day I had pants on, so he couldnât really
do anything.
Q. [T]he first time he touched your vagina area you had
pants on?
A. No, I donât think so.
Q. . . . . The first time when he rubbed your stomach and
. . . didnât actually touch any of your intimate parts, you think
you were wearing pants?
A. Yes.
Q. . . . . And after that, you think that you were wearing
panties?
A. Yes, sir.
Q. . . . . And the . . . fourth and fifth time that he went into
your room, were you, again, in bed?
A. Yes, sir.
Q. [W]hat did he do those times?
A. Iâm pretty sure he did the same thing as, like, the second
one and third one. The fourth day . . . Iâm pretty sure on the
fifth day he started to take his clothes off.
Q. . . . . So the fifth time he came in, you noticed he started
to take his clothes off?
A. Yes, sir.
Q. What did he take off?
A. Pretty sure he took off his shirt and pants and that was
it. But I didnât really know, because I was, like, laying down,
and . . . I was too afraid to get up at the time, because I didnât
know if he was naked or not, so. It took me a while before I
got up and ran.
Q. . . . . And everything youâve talked about happen[ed] at
your house[?]
A. Yes, sir.
2. Cross Examination:
Q. Would you agree that if [Mr. Walker] moved in on
January 12th, after that first week sometime is when he started
talking to you? Is that correct? . . .
A. Yes, sir.
7
Q. So somewhere, then, January 19th or later. Is that a fair
statement?
A. Yes, sir. . . .
Q. [D]o you recall telling law enforcement that it was a
week or two after that discussion with Mr. Walker that he
touched you for the first time?
A. Yes, sir.
Q. So would you agree that that date would have been
about January 26th, at the earliest?
A. Yes, sir.
Q. And, again, that first time he touched you, I believe you
told [the prosecutor] you were wearing sweats, didnât touch
you in your private areas[?]
A. Yes, sir. . . .
Q. [D]o you recall telling law enforcement that the first
time he touched you inappropriately was the day after the first
time he touched you[?]
A. Yes, sir.
Q. [S]o would you agree that the earliest that he could have
touched you inappropriately would have been January 27th,
based upon the timeline you gave to law enforcement?
A. Yes, sir. . . .
Q. The first time he touched you inappropriately, . . . when
was the next time he touched you inappropriately?
A. It was either the next day or the day before. Iâm pretty
sure.
Q. [D]o you mean the day after?
A. Yeah.
Q. . . . . So weâre talking, maybe, the 28th or 29th was the
second time you were touched inappropriately?
A. Yes.
. . .
Q. When did the third inappropriate touching occur?
A. Pretty sure [the] next day or the day after.
Q. [W]as that any different than the first, second, or third
time?
A. No.
Q. When did the fourth time he touched you
inappropriately occur?
A. Same thing.
Q. [N]ext day or two?
A. Next day or two, yeah. . . .
8
Q. Now, the time he tried to go down on you, when did that
event occur?
A. Either [on] the last or fourth day.
. . .
Q. [D]o you recall telling law enforcement that this
happened between 5 and 10 times?
A. Yes, sir.
Q. Do you know how many times this did happen?
A. Iâm pretty sure itâs five or six.
Q. . . . . Why are you pretty sure itâs five or six?
A. Because, um, I didnât really â I donât really know how
many times he did it. I just know he kept on doing it every day.
Q. So is it fair to say you know he did it more than once?
A. Yes, sir.
Q. Beyond that, how certain are you it wasnât four times?
A. Um, âcuz â I mean, it could have been four.
Q. Could it have been three?
A. No. I just know itâs more than three.
3. Redirect Examination:
[¶12] On redirect, KR testified she wasnât really being exact. She stated she struggles
with time concepts and is on an individualized education program in which she âha[s] to
keep a calendar at school in case, like, I forget.â
D. The Instructions and Verdict
[¶13] The district court and the attorneys reviewed the instructions after the close of the
evidence. There were no substantive changes and no objections. The instructions relevant
to the issue here stated as follows:
1. Jury Instruction No. 4:
It is your duty to follow the law as stated in these instructions
and to apply the law to the facts as you find them from the
evidence presented during the trial.
. . .
It is your responsibility to evaluate the evidence and
determine the facts of this case. In finding the facts, you must
consider all of the evidence presented and only the evidence.
9
You may not assume, suppose, speculate or otherwise guess as
to what the facts might have been, even if you consider the
evidence confusing or incomplete; however, in considering the
evidence you may draw reasonable inferences based on your
general knowledge, observations and experience in the affairs
of life.
. . .
In order to return a verdict, it is necessary that each juror agree
thereto. Your verdict must be unanimous.
2. Jury Instruction No. 5:
In order to convict the Defendant of any crime charged,
every element which constitutes that crime must be proved by
the State beyond a reasonable doubt. If there is any reasonable
doubt as to any element to constitute that crime, the Defendant
must be given the benefit of the doubt and must be found not
guilty of that crime.
. . .
The burden is always on the State to prove the Defendantâs
guilt beyond a reasonable doubt as to each element of each
crime charged.
3. Jury Instruction No. 7:
The Defendant has been charged in this case with six counts in
the Information. Each count and the evidence pertaining to it,
should be considered separately by the jury. The fact that you
may find the Defendant guilty or not guilty as to a crime
charged in one count of the Information should not control
your verdict as to any other crime charged in any other count.
4. Jury Instruction No. 8:
The elements of Third Degree Sexual Abuse of a Minor as
charged in Count I are:
1. on or between January 19, 2020, and February 9, 2020;
2. in Campbell County;
3. the [D]efendant, Joseph R.Walker;
10
4. who was 17 years of age or older;
5. engaged in sexual contact with [KR];
6. [KR] was 15 years of age at the time of the sexual
contact; and
7. [KR] was at least four years younger than the
Defendant.
If you find from your consideration [of] all the evidence
that each of these elements has been proved beyond a
reasonable doubt, then you should find the Defendant guilty.
If, on the other hand, you find from your consideration of all
of the evidence that any of these elements has not been proved
beyond a reasonable doubt, then you must find the Defendant
not guilty.
(Emphasis added.) The instructions on Counts II, III, IV, and Vâthe additional charges
of third-degree sexual abuse of a minorâcontained identical language to Jury Instruction
No. 8 for Count I except for the count number.
5. Jury Instruction No. 14:
The charges against the Defendant state that the crimes alleged
occurred on or between certain dates. The State must prove
beyond a reasonable doubt that the crimes alleged occurred
approximately between those dates. It is not necessary that the
State prove the crimes alleged occurred specifically between
those dates to the exclusion of all other dates.
6. The Verdict Form:
The verdict form listed each count of third-degree sexual abuse of a minor followed by:
We, the jury, duly empaneled and sworn to try the
above-entitled cause, as to the crime of Third Degree Sexual
Abuse of a Minor, as charged in Count [___], find the
defendant, Joseph R. Walker:
_______Guilty
_______Not Guilty
[¶14] After deliberations began, the jury submitted a question to the court asking if it was
possible to view the Facebook messages AR received from Mr. Walker. The substance of
the message was not admitted at trial. The court responded, âNo. You must decide the
11
case on the evidence you have before you.â There was no further communication with the
jury until it reached its verdict.
[¶15] The jury found Mr. Walker guilty of Counts I, II, III, and VI, and not guilty of
Counts IV and V. The district court sentenced Mr. Walker to seven to ten years
imprisonment on each of Counts I, II, and III to run concurrently. It sentenced him to ten
to twelve years imprisonment on Count VI to run consecutive to the sentence in Counts I,
II, and III.
DISCUSSION
Were the jury instructions plainly erroneous because they did not differentiate between
the five counts of third-degree sexual abuse of a minor, inviting the possibility of juror
confusion?
[¶16] Mr. Walker appeals from his conviction on Counts I through V, claiming the lack
of specificity in the jury instructions and the verdict form denied him a fair trial. Mr.
Walker did not object to the jury instructions or the verdict form.
STANDARD OF REVIEW
[¶17] As stated in Farrow v. State:
The district court âhas extensive discretion in tailoring jury
instructions, so long as they correctly state the law and fairly
and adequately cover the issues presented.â Merit Energy, Co.,
LLC v. Horr, 2016 WY 3, ¶ 23,366 P.3d 489, 497
(Wyo.
2016). âAccordingly, our review of a district courtâs decision
to give or refuse a particular jury instruction is for an abuse of
discretion.â Id. When there is no objection to a jury
instruction, however, we must review for plain error. Schmuck
v. State, 2017 WY 140, ¶ 32,406 P.3d 286, 297
(Wyo. 2017). Farrow v. State,2019 WY 30
, ¶ 12,437 P.3d 809, 815
(Wyo. 2019). Under plain error
review:
First, the record must clearly present the incident alleged to be
error. Second, appellant must demonstrate that a clear and
unequivocal rule of law was violated in a clear and obvious,
not merely arguable, way. Last, appellant must prove that he
was denied a substantial right resulting in material prejudice
against him.
12
Leyva v. State, 2005 WY 22, ¶ 9,106 P.3d 873, 876
(Wyo. 2005) (quoting Ogden v. State,2001 WY 109, ¶ 9
,34 P.3d 271, 274
(Wyo. 2001) (quoting In Int. of CB,749 P.2d 267
,
268â69 (Wyo. 1988))).
We also apply the following standard:
. . . Jury instructions must be considered as a whole, and
individual instructions, or parts of them, should not be
singled out and considered in isolation. We confine our
review to a search for prejudicial error. As long as the
instructions correctly state the law and the entire charge
covers the relevant issue, reversible error will not be
found.
Creecy v. State, 2009 WY 89, ¶ 18,210 P.3d 1089, 1093
(Wyo.
2009) (internal punctuation omitted). âJury instructions shall
not be ruled defective absent a showing that the instructions
confused or misled the jury as to the proper principles of law
and prejudiced the defendant.â Baker v. State, 2010 WY 6,
¶ 31,223 P.3d 542, 555
(Wyo. 2010). Gentilini v. State,2010 WY 74, ¶ 17
,231 P.3d 1280, 1285
(Wyo. 2010).
ANALYSIS
[¶18] âArticle 1, Section 9 of the Wyoming Constitution recognizes the right of an
accused to receive a unanimous verdict by twelve impartial jurors.â 2 Vargas-Rocha v.
State, 891 P.2d 763, 770(Wyo. 1995) (citing Brown v. State,817 P.2d 429, 439
(Wyo. 1991)). Fundamental problems arise when a defendant is charged with identical, nonspecific counts. Morones v. State,2020 WY 85
, ¶¶ 15â18,466 P.3d 300
, 305â06 (Wyo. 2020); Heywood v. State,2007 WY 149, ¶ 30
,170 P.3d 1227, 1235
(Wyo. 2007), abrogated on other grounds by Granzer v. State,2008 WY 118
,193 P.3d 266
(Wyo. 2008).
If identical counts are carried on to the jury instructions and the
resulting jury verdict, there is a danger that the jury may
convict a defendant although not reaching a unanimous
agreement on precisely which charge is the basis for the
2
At the time of Mr. Walkerâs trial, the Supreme Court had not specifically applied the unanimity
requirement of the Sixth Amendment to state trials. On April 20, 2020, the Supreme Court issued its
opinion in Ramos v. Louisiana, 590 U.S. â, â, 140 S.Ct. 1390, 1397,206 L.Ed.2d 583
(2020), holding that â[t]here can be no question . . . that the Sixth Amendmentâs unanimity requirement applies to state and federal criminal trials equally[,]â overruling Apodaca v. Oregon,406 U.S. 404
,92 S.Ct. 1628
,32 L.Ed.2d 184
(1972).
13
conviction in violation of the Sixth Amendment guarantee to a
unanimous jury verdict.
Roberts v. State, 2022 WY 93, ¶ 19,513 P.3d 850
, 854â55 (Wyo. 2022) (citations and quotation marks omitted). [¶19] Mr. Walker contends the record clearly reflects that the jury was not properly instructed because the unequivocal law requires the instructions âleave no doubt as to the circumstances under which the crime can be found to have been committed.â Mueller v. State,2001 WY 134, ¶ 9
,36 P.3d 1151, 1155
(Wyo. 2001) (citations omitted); Leyva, ¶ 9,106 P.3d at 876
; Heywood, ¶¶ 17â33, 170 P.3d at 1232â36. He claims the identical instructions on five counts of third-degree sexual abuse of a minor had the effect of permitting the jury to convict him for the several crimes that were charged even though different jurors might have found him guilty of the same act but on a different day. He contends that this result would deprive him of the unanimous verdict to which he is entitled. [¶20] The State concedes prong one of plain error in that the alleged error is clearly reflected in the record. The State disagrees that the court violated a clear and unequivocal rule of law. The State argues the manner in which the State presented evidence and the Stateâs closing argument informed the jury that Counts I through V refer to the first five incidents of sexual contact in sequential order. The State further argues that the jury verdict was not contrary to the evidence presented at trial. [¶21] We agree with the parties that the first prong of plain error has been met and proceed to the second prong. A. Clear and Unequivocal Rule of Law [¶22] Under plain error, Mr. Walker âmust demonstrate that a clear and unequivocal rule of law was violated in a clear and obvious, not merely arguable, way.â Six v. State,2008 WY 42, ¶ 12
,180 P.3d 912, 917
(Wyo. 2008) (quoting Leyva, ¶ 9,106 P.3d at 876
); Connolly v. State,610 P.2d 1008, 1011
(Wyo. 1980).
[W]e test the instructions using the following principles:
The purpose of jury instructions is to provide the jury
with a foundational legal understanding to enable a
reasoned application of the facts to the law. In order to
support a reliable verdict, it is crucial that the trial court
correctly state the law and adequately cover the relevant
issues. Ultimately, the test of adequate jury instructions
is whether they leave no doubt as to the circumstances
14
under which the crime can be found to have been
committed.
Blevins v. State, 2017 WY 43, ¶ 26,393 P.3d 1249, 1255
(Wyo. 2017) (citations and quotation marks omitted). [¶23] Mr. Walker relies primarily on our decisions in Heywood, ¶¶ 17â33, 170 P.3d at 1232â36, 3 and Morones, ¶¶ 17â20, 466 P.3d at 305â07. [¶24] In Heywood, the defendant was charged with three counts of second-degree sexual assault. Heywood, ¶ 5,170 P.3d at 1229
. The information, jury instructions, and verdict
form used identical language for each of the three counts. Id. ¶¶ 21, 24, 170 P.3d at 1232â
34. During jury deliberations, the jury sent a question to the trial court asking:
Are the three countsâ
1. In the shed?
2. Use of the sex toys?
3. When removing the splinter?
Id. ¶ 18, 170 P.3d at 1232. [¶25] The court responded: âThe [c]ourt is unable to further instruct on this. You must rely on your recollection of the evidence and argument and consider the Instructions.â Id. ¶ 19,170 P.3d at 1232
.
[¶26] On appeal, the question before the Court was whether the district courtâs failure to
further instruct the jury was plain error. To answer this question, we considered the basic
tenets concerning jury instructions, stating:
It is possible, perhaps probable, that the parties knew what
particular incidents formed the bases for these allegations. But
that is not sufficient. The jury must be adequately instructed to
allow it to apply the law to the facts. . . .
3
Earlier cases referred to erroneous instructions as a âfundamental error.â See, e.g., Heywood, ¶ 26, 170
P.3d at 1234(â[A] failure to give an instruction on an essential element of a criminal offense is fundamental error, as is a confusing or misleading instruction[.]â (quoting Leyva, ¶ 8,106 P.3d at 876
)). In Granzer, we clarified that âa trial courtâs failure to instruct on an element of a crime is not a structural or fundamental error, but rather a trial errorâ subject to review under the harmless-error standard or the plain-error standard. Granzer v. State,2008 WY 118, ¶ 18
,193 P.3d 266
, 271â72 (Wyo. 2008). Under the plain-error standard, âfailure to instruct on an essential element is not reversible if the element was not contested or âwhere evidence of the defendantâs guilt is overwhelmingâ because, under those circumstances, the defendant suffers no prejudice from the violation.â Id. ¶ 21,193 P.3d at 272
(quoting Miller v. State,904 P.2d 344, 349
(Wyo. 1995)).
15
[T]he test of whether a jury has been properly
instructed on the necessary elements of a crime is
whether the instructions leave no doubt as to the
circumstances under which the crime can be found
to have been committed.
Id. ¶ 26, 170 P.3d at 1234(first emphasis added) (quoting Leyva, ¶ 8,106 P.3d at 876
).
[¶27] We noted that the record contained no indication that the jury was ever informed
which charge related to which location, although the testimony centered on three incidents.
We concluded that the jury question:
facially reflect[ed] the juryâs confusion. Instruction No. 3
informed the jury that â[e]ach count is a separate charge, and
the proof as to each must stand on its own, so you must
separately consider and determine what the evidence shows as
to each count.â It is easy to surmise that, as the jury began its
deliberations, it had no idea what the allegation in count I (or
count II or count III) was, and therefore asked the judge for
guidance. The judgeâs answerââI canât tell youââwas
inadequate.
Id. ¶ 27, 170 P.3d at 1234â35. We found that the district court committed prejudicial error
in failing to provide a substantive answer to the juryâs question. Id. ¶ 30, 170 P.3d at 1235. We said, âEven without that error, the instructions were inadequate. The fundamental problem is that, contrary to law, we are left in doubt as to the circumstances under which a crime was found to have been committed under any of the three counts.âId.
[¶28] In Morones, the defendant was charged with two counts of strangulation of a
household member and one count of driving while under the influence.
During opening statements, the State distinguished between
the two strangulation charges chronologically stating, â[t]he
evidence and testimony that will be presented . . . will
corroborate [the victim]âs account of the events and how . . .
[Mr.] Morones, put his hands on [the victim]âs neck on two
separate occasions, once before she reached the Snowy Range
Bridge and once while she was on the Snowy Range Bridge.â
The defense likewise described the incidents chronologically
in opening statements, the first outside the bowling alley and
the second on the bridge. Throughout the trial, both parties
continued to refer to the incidents in a chronological fashion
16
referring to the incident outside the bowling alley as first, and
the incident on the bridge as second.
Morones, ¶ 6, 466 P.3d at 303. [¶29] The juryâs instructions and verdict form contained identical language for each of the two strangulation charges. The jury found the defendant not guilty on the first count of strangulation of a household member, guilty on the second count of strangulation of a household member, and guilty of driving while under the influence.Id.
[¶30] On appeal from his strangulation conviction, the defendant did not challenge the jury instructions or the verdict form. Though the defendant did not raise this issue, we were required to address it because an analysis of his sufficiency of the evidence claim required the Court to determine which of the two charges was at issue. Id. ¶ 15,466 P.3d at 305
.
[¶31] After reviewing our holding in Heywood, we said:
The foregoing principles of law can be summarized for present
purposes as follows: (1) instructions that leave doubt as to the
circumstances under which the crime was committed are
insufficient; (2) instructions that confuse or mislead the jury
are insufficient; (3) jury questions revealing confusion or a lack
of understanding should be answered.
Morones, ¶ 17, 466 P.3d at 306(quoting Heywood, ¶ 29,170 P.3d at 1235
). [¶32] We distinguished the facts in Morones from the facts in Heywood observing âthere was no unanswered jury question, and it does not appear the jury was confused. The parties consistently described the events in a sequential fashion describing the incident outside the bowling alley as first, and the incident on the bridge as second.â Morones, ¶ 18,466 P.3d at 306
. Although we did not address the issue further, we cautioned âthe State and district courts to be mindful of the need for specificity in cases involving multiple counts of the same crime[,]âid.,
and noted that â[t]he clarity of counselâs statements alone is likely insufficient to compensate for inadequate jury instructions.â Id. ¶ 18,466 P.3d at 306
n.2 (citing Flores v. State,2017 WY 120, ¶ 11
,403 P.3d 993
, 995 n.3 (Wyo. 2017)). [¶33] We discussed a similar situation in another child sexual abuse case, Alicea v. State,13 P.3d 693
, 699â700 (Wyo. 2000), overruled on other grounds by Jones v. State,2019 WY 45
,439 P.3d 753
(Wyo. 2019). There, the two victims were unable âto recall with
much specificity dates, or even general time frames, for the occurrences of the various
sexual encounters with [the defendant].â The victimsâ testimony was confounded by the
17
prosecutorâs âdifficulty in phrasing her questionsâ and the courtâs âfrequent[]â
interjections. Id. at 699.
Instruction Nos. 2â6 listed the elements of each of the six
counts charged. Included among those elements were dates.
Most of the âtimeâ elements of those instructions were stated
as being between a period of months, e.g.[,] âbetween the time
period of October 1990, through May 1991,â âFebruary 1992
through March 1992,â and âduring the summer of 1993.â That
portion of those instructions was modified by Instruction No.
10:
Even though you have been instructed that the State
must prove beyond a reasonable doubt that a crime was
committed within a specified time frame, the failure to
establish with precision that the crime occurred within
that time frame is not fatal, especially in the case of
alleged abuse to children. A witnessâes [sic] inability to
recall specific time frames may be taken into account in
weighing the credibility of any witness, along with
those factors mentioned in the last paragraph of
instruction No. 1.
Id.
[¶34] As recognized in our earlier holdings, a âspecific date is not a required element of
the crime,â and âalleging a general time period, in lieu of a specific date, is sufficient to
give a defendant notice and allow him to adequately prepare a defense.â Alicea, 13 P.3d
at 700(citing Vernier v. State,909 P.2d 1344
, 1350â52 (Wyo. 1996); Jackson v. State,891 P.2d 70, 75
(Wyo. 1995)). However, we were âunable to stretch the spirit, as well as the letter, of those cases to fit the use of Instruction No. 10â because that instruction made âit impossible to differentiate between Count I and Count II, between Count III and Count IV, or between Count V and Count VI, because the elements of each of those pairs became exactly the same as a result of the challenged instruction.â Alicea,13 P.3d at 700
. We determined â[i]t [was] as likely as not that the jury may have found [the defendant] guilty twice for the exact same act.âId.
We disapproved of the instruction and found that its use in that case necessitated reversal.Id.
[¶35] In this case, it is apparent that the jury instructions and the verdict form contained
no language that would distinguish between the crimes charged in Counts I, II, III, IV, and
V for the jury. Instruction No. 4 directed, âIn order to return a verdict, it is necessary that
each juror agree thereto. Your verdict must be unanimous.â This instruction did not clarify
that the jury must unanimously agree on the specific incident that formed the basis of the
18
verdict. One juror could believe that the third time Mr. Walker came into the bedroom was
the second time he inappropriately touched her, but another juror could believe the second
inappropriate touching was the fourth or fifth time Mr. Walker came into the room. The
instructions as a whole, including the verdict form, were plainly insufficient to establish
the level of unanimity required for Mr. Walkerâs conviction on five identical counts. 4
[¶36] The State argues that merely submitting identical instructions for several counts of
the same charge does not necessarily render the instructions erroneous. To support its
argument, the State points to our decision in Gentilini, ¶¶ 16â26, 231 P.3d at 1285â88. In
Gentilini, the defendant was convicted of attempted first-degree murder and aggravated
assault. Relevant to the case before us, he asserted:
[T]he instructions were insufficient because they did not
identify which of his actions constituted the crime of attempted
first degree murder. He contends the jury could have used
either the act of attempting to run over Mr. Ellsworth with the
car, or the act of retrieving his gun, as a basis for finding him
guilty of the attempted murder charge.
Gentilini, ¶ 21, 231 P.3d at 1287. During deliberations, the jury asked, âSpecifically does the aggravated assault charge . . . refer solely to the automobile or does it refer to the rifle as well?â The court responded: âThe aggravated assault charge only relates to the automobile.â Id. ¶ 23,231 P.3d at 1287
. [¶37] We affirmed Mr. Gentiliniâs conviction distinguishing our holding in Heywood because the district court answered the juryâs question, removing any potential confusion. Id. ¶ 22,231 P.3d at 1287
. We noted the trial transcript, closing arguments, and the answer to the juryâs question supported the conclusion that there was âno violation of a clear and unequivocal rule of law.â Id. ¶ 25,231 P.3d at 1288
; see also Metzger v. State,4 P.3d 901
, 908â10 (Wyo. 2000) (Where instructions as to charge and element were the same, trial court committed no error because: the jury was instructed to consider the charges individually; the verdict form required the jury to make separate findings as to each count; the testimony given by EM clearly described two separate incidents; and Metzger failed to offer more accurate instructions.). [¶38] The State contends that, as in Gentilini, KRâs testimony and the Stateâs closing argument presented the jury with sufficient sequential factual basis for each charge. It 4 The Bill of Particulars is irrelevant to our analysis here. âThe function of a bill of particulars is âto make more specific the general allegations in the information to enable the defendant to prepare his defense and avoid being surprised at the trial.ââ Heywood v. State,2009 WY 70, ¶ 5
,208 P.3d 71, 72
(Wyo. 2009) (Heywood II) (quoting Booth v. State,517 P.2d 1034, 1036
(Wyo. 1974)). Mr. Walker does not claim he
was unable to prepare his defense, and the record is devoid of any suggestion that the jury was aware of the
existence of a Bill of Particulars.
19
argues that, because nothing in the record indicates any confusion on the part of the jury
and the verdict is consistent with the evidence presented at trial, there was no violation of
a clear and unequivocal rule of law.
[¶39] We take this opportunity to clarify our analysis of jury instructions under the plain-
error standard. We have said repeatedly, âthe test of adequate jury instructions is whether
[the jury instructions] leave no doubt as to the circumstances under which the crime can be
found to have been committed.â Blevins, ¶ 26, 393 P.3d at 1255(citations and internal quotation marks omitted). The jury instructions, as a whole, must âcorrectly state the law and adequately cover the relevant issues.âId.
If the instructions are adequate, we need not look to the context of the trial to determine whether the jury was misled or confused in reaching a unanimous verdict. In other words, we must first determine whether the jury instructions, as a whole, were adequate. If so, we affirm. If not, we recognize the error and continue to determine whether the defendant was prejudiced after considering the record as a whole. [¶40] Notably, the State does not argue that the jury instructions, when viewed as a whole, distinguish Counts I, II, III, IV, and V. In this case, the jury determined Mr. Walker was guilty of three instances of third-degree sexual abuse of a minor when he was charged with five. The instructions stated each charge was to be considered separately, yet the jurors were not told that they must unanimously agree which time in the sequence each count occurred. Ruiz v. Commonwealth,471 S.W.3d 675, 679
(Ky. 2015) (âWithout an instruction to channel the juryâs deliberation, the jury was left to adjudicate guilt on any or all of the vaguely alleged incidents, resulting in a verdict of doubtful unanimity.â); State v. Escobar,523 S.W.3d 545, 549
(Mo. Ct. App. 2017) (âwhere there are repeated instances of the same charged criminal conduct within the same charged timeframe, the possibility that a jury may convict based on different underlying acts presents the danger that a jury, in finding the defendant guilty, has done so without unanimously agreeing on a specific instance of criminal conductâ). [¶41] The North Dakota Supreme Courtâs decision in State v. Martinez is instructive. There, âthe State charged Martinez with three counts of gross sexual imposition based on three separate and distinct incidents.â State v. Martinez,2015 ND 173, ¶ 16
,865 N.W.2d 391
, 396â97. âMartinez requested the court provide the jury with a copy of the complaint,[5] which included factual allegations distinguishing between the three counts, or include information in the jury instructions which would allow the jury to identify which specific offense was alleged for each count. The court denied his request.âId.
Citing numerous cases from other jurisdictions, the North Dakota Supreme Court reasoned: 5 âThe complaint included underlying facts and the specific acts allegedly committed for each count. Section 29-21-01(1), N.D.C.C., requires the clerk or stateâs attorney to read the complaint to the jury.â Martinez, ¶ 17,865 N.W.2d at 397
.
20
Jury instructions must correctly and adequately inform
the jury of the law and must not mislead or confuse the jury.
When the defendant is charged with multiple counts of the
same offense, a lack of specificity in the jury instructions and
the failure to include any distinguishing information about the
allegations for each count misstates the law and may cause
potential unanimity problems. All verdicts in criminal cases
must be unanimous. When the jury instructions and verdict
forms do not include information identifying the underlying
acts for each count and distinguishing between the counts and
the instructions do not inform the jury that it must unanimously
agree on the specific act that formed the basis for each count,
the jurors may follow the instructions and unanimously agree
that the offense was committed but individually choose
different underlying acts to determine guilt.
Id. ¶ 18, 865 N.W.2d at 397(citations omitted). See State v. Marcum,166 Wis. 2d 908
, 920â22,480 N.W.2d 545
, 551â53 (Ct. App. 1992) (if identical verdict forms are permitted for crimes identically charged and only a general unanimity instruction is given, the door is left open to the possibility of a fragmented or patchwork verdict with different jurors basing the decision to find the defendant guilty of one count on certain acts and other jurors using those same acts to find the defendant not guilty on other counts); see also People v. Cardamone,885 N.E.2d 1159, 1188
(Ill. App. Ct. 2008); Harp v. Commonwealth,266 S.W.3d 813, 819
(Ky. 2008); R.A.S. v. State,718 So. 2d 117
, 122â23 (Ala. 1998) (applying âeither/orâ rule, requiring the state elect an act for each count or the jury be instructed that they must all agree which specific act was committed, to protect the defendantâs right to a unanimous verdict); Jackson v. State,342 P.3d 1254, 1257
(Alaska Ct. App. 2014) (applying either/or rule, and holding the failure to properly instruct the jury is a constitutional violation); State v. Arceo,928 P.2d 843
, 874â75 (Haw. 1996) (failure to properly instruct the jury violated the defendantâs constitutional right to a unanimous verdict); Baker v. State,948 N.E.2d 1169
, 1176â79 (Ind. 2011) (applying either/or rule); State v. Celis-Garcia,344 S.W.3d 150, 158
(Mo. 2011) (defendantâs constitutional right to unanimous verdict violated, court did not instruct the jury it must unanimously agree on at least one underlying act); State v. Weaver,1998 MT 167, ¶¶ 26, 38
,964 P.2d 713, 718, 721
(failure to instruct the jury that it had to reach a unanimous verdict as to at least one specific underlying act for each count was reversible error), abrogated by statute on other grounds by State v. Deines,2009 MT 179
, ¶¶ 14â16,208 P.3d 857
, 861â62.
[¶42] The North Dakota Supreme Court held that because the jury instructions did not
factually differentiate the counts and the jury was not told they had to unanimously agree
on the underlying act for each count, the jury could follow all of the courtâs instructions,
agree on the defendantâs guilt, but disagree on the specific act or acts committed.
21
Therefore, the instructions did not properly inform the jury of the law. Martinez, ¶ 21, 865
N.W.2d at 398. [¶43] The instructions in Mr. Walkerâs trial suffer the same infirmity. The jury was presented with five identical charges, committed in the same manner, in the same location, within the same time frame, with the same perpetrator and the same victim, and KRâs testimony referred to up to ten separate instances of abuse. Nothing in the instructions differentiated the charges or notified the jury they must be unanimous as to the underlying facts supporting each charge. Here, neither the jury instructions nor the verdict form explained that Count I referred to the âsecond eventâ or the second time Mr. Walker entered KRâs room, or that it charged Mr. Walker for his actions for the first time he inappropriately touched her. The instructions did not clarify that the charges were stated sequentially. In this case, the jury could have faithfully followed the district courtâs instructions and agreed that Mr. Walker was guilty of three instances of third-degree sexual abuse of a minor, but we cannot say with certainty that there was unanimous agreement as to which of the five counts charged were proven beyond a reasonable doubt through the jury instructions alone. The instructions on Counts I, II, III, IV, and V in this case cannot pass constitutional muster. [¶44] We reject Mr. Walkerâs contention that Count VI is also suspect because the jury was never told which specific incident included Mr. Walkerâs attempt to place his face against KRâs vagina. Unlike Counts I through V, which were distinguishable only by sequential order, Count VI was a single charge based on specific conduct during a specific period of time. The State did not need to establish when Count VI occurred in relation to the other incidents. The State need prove only that Mr. Walker attempted to perform oral sex on KR within the identified time frame, January 19, 2020, to February 9, 2020. See Ortiz v. State,2014 WY 60, ¶ 88
,326 P.3d 883, 900
(Wyo. 2014) (âwhere the specific date is not a required element of the crime, then alleging a general time period in lieu of a specific date, is sufficient to give a defendant notice and allow him to adequately prepare a defense . . . and, it is sufficient to establish the transaction rather than the exact date or dates in questionâ (citations and quotations marks omitted)). Because there is no uncertainty as to the time frame or the conduct underlying Count VI, the verdict is affirmed. [¶45] We are mindful of the difficulty faced by the prosecution in cases such as this. The unanimity requirement has been considered in a number of cases across the country addressing situations where the charged criminal conduct is repeated instances of the same acts of sexual abuse against minor victims. See, e.g., Heywood,170 P.3d 1227
; Hoeber v. State,488 S.W.3d 648, 653
(Mo. 2016) (en banc). Because the victims are children and
often do not have a recollection of the specific dates on which the abuse occurred, the State
in charging the criminal conduct often attempts to set forth in generic terms the alleged
criminal conduct within a certain timeframe. See Alicea, 13 P.3d at 699â700. However,
as pointed out above:
22
[W]here there are repeated instances of the same charged
criminal conduct within the same charged timeframe,
[especially when the conduct occurred in the same location,]
the possibility that a jury may convict based on different
underlying acts presents [a real] danger that a jury, in finding
the defendant guilty, has done so without unanimously
agreeing on a specific instance of criminal conduct.
Escobar, 523 S.W.3d at 549.
[¶46] We recognize:
the plight of the litigants and trial courts who, having been
charged with ensuring a defendantâs guarantee of a unanimous
verdict is embodied in the jury instructions, are left with
minimal guidance when the . . . scenario of indistinguishable
acts of abuse . . . become the nightmarish reality for some
innocent child.
State v. Carlton, 527 S.W.3d 865, 874â78 (Mo. Ct. App. 2017). We recognize that an
instruction ensuring unanimity may require modification to address the individual facts of
each case. As we have often said,
[j]ury instructions should inform the jurors concerning the
applicable law so that they can apply that law to their findings
with respect to the material facts, instructions should be written
with the particular facts and legal theories of each case in mind
and often differ from case to case since any one of several
instructional options may be legally correct[.]
Heywood, ¶ 26, 170 P.3d at 1234(quoting Leyva, ¶ 8,106 P.3d at 876
(quoting Mueller, ¶ 9,36 P.3d at 1155
)). [¶47] The State points to Brown v. State for the proposition that it is improper to insert facts into the jury instructions. In Brown, we affirmed the trial courtâs rejection of the defendantâs proposed jury instructions which inserted specific facts to clarify the basis of separate charges. Brown was tried on one charge of second-degree sexual assault of S.P. (Count I); two charges of taking indecent liberties with C.P. (Counts II and III); three charges of second-degree sexual assault (based upon a position of authority) upon C.P. (Counts IV, V, and VI); and an additional charge of second-degree sexual assault, again based upon a position of authority, upon M.P. (Count VII). âBrown filed a Motion for a Bill of Particulars detailing the several charges, and a response was filed by the State.â Brown,817 P.2d at 432
. The State indicated that Count II was based on an accusation that
23
Brown fondled C.P.âs breasts, and that Count III was based on an accusation that he
required C.P. to pose nude for photographs.
[¶48] After the jury convicted Brown on all counts, he appealed claiming the district court
erred in refusing his proposed jury instructions containing the factual basis for each charge
and a requested instruction on unanimity. We rejected his arguments, stating:
The jury instructions, the testimony of the child victim of the
offenses charged in Counts II through VI of the Information,
and the Bill of Particulars with respect to those counts
demonstrate that there could have been no substantial
likelihood of Brown being convicted for some conduct other
than the offense that was charged.
Id. at 436. We said:
These instructions were parallel to the âelement of the offenseâ
instructions that the court gave. The difference was that
Brownâs proposed instructions included descriptions of the
specific acts as they had been identified by the response to the
motion for a bill of particulars. Thus, Brownâs proposed
instruction on Count II read as follows:
The necessary elements of the crime of taking
immodest, immoral or indecent liberties with a child
are:
1. The crime occurred within the County of Platte on
or about the date of July 25, 1989, through August
10, 1989; and
2. The defendant knowingly took immodest, immoral
or indecent liberties with [C.P.], a child under the
age of 19 years;
3. By touching her breasts with his hands. . . .
(Emphasis added.)
. . . The one crucial difference between Brownâs proposed
instructions and those given is that Brownâs defined the acts
that constituted the offenses charged. If those instructions had
been given, they clearly would have circumscribed the fact
24
finding process for the jury. This is not the function of
instructions to a jury under our judicial system.
Id. at 438â39.
[¶49] Mr. Brown also proposed a specific unanimity instruction which read:
The defendant is accused of crimes which may be committed
in more than one way. The verdict form does not require that
you specify the way in which you find that each individual
count was committed. The law, however, does require that
you agree unanimously on the acts which constitute each
offense.
Id. at 439. [¶50] The trial court refused Mr. Brownâs proposed instruction, but gave a general unanimity instruction stating, âYour verdict must represent the considered judgments of each juror. In order to return a verdict, it is necessary that each juror agree thereto. . . .âId.
After recognizing that the Wyoming Constitution does recognize the right of a criminal defendant to a unanimous verdict by twelve impartial jurors, we said: âWe have not previously interpreted this right in a way that requires jurors, when returning a general verdict, to be unanimous as to the manner in which the crime was committed. Neither have we required an instruction like that requested by Brown.âId.
We noted other courts had required this type of instruction, but determined this was not the proper case to âadopt a requirement for a unanimity instructionâ such as this, because even if there were error here, âthere was no reasonable likelihood that the jury failed to reach unanimity as to the crimes charged.âId.
On the only count where two specific but similar acts were described in the testimony, the âtestimony of the deputy sheriff cured this defect in specificity.âId.
[¶51] We appreciate the Stateâs concern that an attempt to distinguish multiple identical counts with reference to facts in the jury instructions would invade the province of the jury given the language in Brown, but we fail to see how that would occur. Even if the jury instructions identified the facts which the State claims constitute the offense, the jury still has the exclusive province of determining whether the evidence proves those facts beyond a reasonable doubt or not. More importantly, this concern does not negate the need for a jury to understand which acts the State claims violate each charged countâthe jury must agree on the specific facts supporting each conviction. We trust our courts and attorneys to capably avoid this problem when constructing instructions sufficient to inform the jury of the law without treading on the role of the jury as the ultimate factfinder. [¶52] We have addressed the need for specificity in criminal charging documents and jury instructions. In Roberts, ¶ 29,513 P.3d at 857
(â[W]e caution the State and district courts
25
to be mindful of the need for specificity in cases involving multiple counts of the same
crime.â (quoting Morones, ¶ 18, 466 P.3d at 306)). Courts across the country have
identified different approaches to ensure a unanimous verdict in cases where a minor is
unable to remember specific facts distinguishing multiple instances of ongoing sexual
abuse. Several jurisdictions use charging documents as a way to distinguish between the
charges for the jury. For example, in State v. Lente, the New Mexico Supreme Court wrote:
First, charging documents in resident child molester cases have
unique significance. [People v. Jones, 51 Cal. 3d 294, 316,792 P.2d 643
, 655â56 (1990), as modified (Aug. 15, 1990).] They
must channel the juryâs focus and require it to determine if
specific instances of illegal conduct were established. A
charging document achieves this end by specifying the exact
sex-abuse crimes that allegedly occurred and identifying the
dates or date ranges when those crimes purportedly happened.
Such charges do indeed ask the jury to decide if specific, illegal
sex acts took place. This point is particularly evident where
the evidence elicited indicates that repeated molestations
exceeding the number of specific acts charged were
perpetrated, a likely occurrence in resident child molester
cases. People v. Letcher, 386 Ill. App. 3d 327,326 Ill. Dec. 98
,899 N.E.2d 315, 323
(2008). State v. Lente,2019-NMSC-020
, ¶¶ 71â72,453 P.3d 416, 431
; see also Martinez,865 N.W.2d 391
. This is similar to the majority of jurisdictions which require the prosecution to elect a distinguishing factor such as time, location, or sequence for each charge. In the case at bar, the Bill of Particulars could have been read to the jury, or the jury could have been instructed that Count I refers to the first instance of inappropriate touching, and Count II, the second, and so forth. Such designation merely identifies the charge; it does not add or subtract elements of the charge required for conviction. See supra ¶ 41 and cases cited therein. [¶53] Other courts have adopted the use of a specific unanimity instruction, such as the instruction recognized inBrown, supra.
While â[a] general unanimity instruction informs the jury that the verdict must be unanimous, . . . a specific unanimity instruction indicates to the jury that they must be unanimous as to which specific act constitutes the offense charged.â 75A Am. Jur. 2d Trial § 1149 (2018); 23A C.J.S. Criminal Procedure and Rights of Accused § 1878 (2016); Carlton, 527 S.W.3d at 874â78 (âto comply with the constitutional mandate that the jury reach a unanimous verdict, the verdict director not only must describe the separate criminal acts with specificity, but the court also must instruct the jury to agree unanimously on at least one of the specific criminal acts described in the verdict directorâ); State v. Cottrell,445 P.3d 1132, 1138
(Kan. 2019) (âTo ensure jury
unanimity in multiple acts cases, courts require that either the State elect the particular
26
criminal act upon which it will rely for conviction or that the district court instruct the jury
that all jurors must agree that the same underlying criminal act has been proved beyond a
reasonable doubt.â (quoting State v. Bailey, 255 P.3d 19, 27(Kan. 2011))). [¶54] As we have often stated, âThe district courts are afforded substantial latitude to tailor jury instructions to the facts of the case.â Dugan v. State,2019 WY 112, ¶ 34
,451 P.3d 731, 742
(Wyo. 2019) (quoting Birch v. State,2018 WY 73
, ¶ 12,421 P.3d 528, 533
(Wyo. 2018)); Wilson v. State,14 P.3d 912, 915
(Wyo. 2000); Streitmatter v. State,981 P.2d 921, 925
(Wyo. 1999); Giles v. State,2004 WY 101, ¶ 42
,96 P.3d 1027, 1042
(Wyo. 2004) (âJury instructions are written with the particular facts and theories of each case in mind.â (quoting Pierson v. State,956 P.2d 1119, 1126
(Wyo. 1998), holding modified by Rabuck v. State,2006 WY 25
,129 P.3d 861
(Wyo. 2006))). Our discussion does not impose requirements but is meant to illustrate the different ways courts manage the unanimity problem. That said, we conclude the failure of the instructions in this case to provide the specific direction necessary for a unanimous decision on each charge violated the unequivocal requirement of jury unanimity. B. Material Prejudice [¶55] The final prong of the plain error test is the determination of whether the appellant was prejudiced by the error. Neidlinger v. State,2021 WY 39, ¶ 42
,482 P.3d 337, 349
(Wyo. 2021).
A defendant is not prejudiced unless he can establish that the
given instructions or verdict form confused or misled the jury.
Tingey v. State, 2017 WY 5, ¶ 40,387 P.3d 1170, 1181
(Wyo.
2017) (âBecause the purpose of jury instructions is to provide
guidance on the applicable law, prejudice will result when the
instructions confuse or mislead the jury.â); Giles v. State, 2004
WY 101, ¶ 14,96 P.3d 1027, 1031
(Wyo. 2004) (âPrejudice
will be determined to exist only where an appellant
demonstrates that the instruction given confused or misled the
jury with respect to the proper principles of law.â).
Neidlinger, ¶ 42, 482 P.3d at 349; see also Bernal-Molina v. State,2021 WY 90, ¶ 19
,492 P.3d 904, 910
(Wyo. 2021); W.R.A.P. 9.05 (âPlain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.â). âIf the charge as a whole is ambiguous, the question is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution.â Middleton v. McNeil,541 U.S. 433, 437
,124 S.Ct. 1830, 1832
,158 L.Ed.2d 701
(2004) (citations and quotation marks omitted).
27
[¶56] Mr. Walker asserts material prejudice is demonstrated not only because the jury was
potentially confused about which count corresponded to which instance of alleged abuse,
but also because the juryâs verdict reached an absurd result in finding Mr. Walker guilty of
three counts and not guilty on two counts based on the same evidence. The State responds
that, while the jury instructions did not specifically identify each count as a sequential act,
the instructions were sufficient if they are viewed in the context of the entire trial.
Specifically, KRâs testimony and the closing argument sufficiently established the
sequential nature of the charges so that the jury understood that Count I was the first time
of inappropriate touching, Count II the second inappropriate touching, and Count III the
third.
[¶57] As discussed above, we conclude that the instructions in this case misled the jury
by failing to distinguish the counts or instruct that they must be reach unanimity on the
factual basis for each count. Contrary to the Stateâs argument that the record and closing
argument can cure or nullify the error, we again emphasize our review of the complete
record pertains only to the existence of prejudice to the defendant caused by the error. The
error remains. To the extent our past decisions have suggested otherwise, we clarify that
the existence of plain error and whether the error is prejudicial requiring reversal of the
conviction are two separate matters. See Escobar, 523 S.W.3d at 551â52 (Arguments of
counsel could not cure the error in the jury instructions âas we must presume that the jury
followed the jury instructions as written not the Stateâs closing argument.â However, the
defendant failed to prove he was prejudiced by the error.).
[¶58] âIn determining whether [the defendant] was prejudiced, we review the entire
record.â Hathaway v. State, 2017 WY 92, ¶ 33,399 P.3d 625, 634
(Wyo. 2017); Talley v. State,2007 WY 37, ¶ 14
,153 P.3d 256, 261
(Wyo. 2007); Sweet v. State,2010 WY 87, ¶ 31
,234 P.3d 1193, 1205
(Wyo. 2010); Pendleton v. State,2008 WY 36, ¶ 11
,180 P.3d 212, 216
(Wyo. 2008). The State asserts KRâs testimony and the clarification of the
individual charges in the Stateâs closing argument precludes a finding that Mr. Walker was
prejudiced by the instructional error.
[¶59] KR testified that the first time Mr. Walker entered her room âhe sat in the corner of
my bed and started talking, . . . and then he started . . . petting me on the stomach, around
my chest. He didnât actually touch; he just rubbed around.â The second time he came into
her room, KR was âmessing aroundâ with her phone while laying on her bed. She testified
Mr. Walker touched her âin the privates,â her vagina with his hands.
[¶60] When asked about the third time he came into her room, she said, âit [was] basically
like the second.â When the prosecutor asked, âSo when you say you think he touched your
vagina,â KR responded âNo, I mean, like, . . . the third day he may or â like, he â I donât
know if it was the, like, third day or the fourth day heâd gone far, but, like, thatâs what Iâm
saying . . . but I know for a fact he did.â
28
[¶61] At this point the questioning diverted to the events describing Count VI. After KR
testified to Mr. Walkerâs attempt to lick her vagina, the prosecutor attempted to return to
the other charges by asking, â[S]o youâve said that the third time was . . . like the . . . second
time . . . where he came in and touched your vagina with his hands over your clothes[?]â
The prosecutorâs references to âthe third timeâ and the âsecond timeâ obviously confused
KR because she responded, âActually, I think I was in my underwear at the time. . . . I
think, like, the first day I had pants on, so he couldnât really do anything.â The prosecutor
asked, âThe first time when he rubbed your stomach and . . . didnât actually touch any of
your intimate parts, you think you were wearing pants?â KR answered, âYes.â âAnd after
that, you think that you were wearing panties?â KR answered, âYes, sir.â
[¶62] The prosecution then asked about the fourth and fifth time Mr. Walker went into the
room. KR stated, âIâm pretty sure he did the same thing as, like, the second one and third
one. . . . [T]he fourth day . . . Iâm pretty sure on the fifth day he started to take his clothes
off.â According to the Stateâs chronology, the âfifth dayâ would relate to Count IV. But
the testimony becomes even more confusing because the prosecutor never questioned KR
about the âsixth day,â which would have been Count V, in his direct examination of KR.
The only mention of a sixth day was during cross-examination, as follows:
Q. Now, you told law enforcement that this could have
happened up to ten times; correct?
A. Yeah.
Q. Can you distinguish what happened on the sixth time
from the other occasions?
A. No. I think the same thing happened.
Q. Seventh time? Eighth?
A. No.
Q. Ninth?
A. No.
Q. Tenth?
A. No.
[¶63] The cross-examination achieved a bit more clarity as the questions followed the
sequence of the charged inappropriate touching. However, KR could not be sure how many
times Mr. Walker inappropriately touched her, only that it happened âmore than threeâ
times.
[¶64] The State further argues that the closing argument clearly established the factual
basis for each count. The prosecutor argued in relevant part:
What evidence do you have that [Mr. Walker] engaged
in sexual contact with [KR]? And what you have is her direct,
eyewitness testimony as a person who was there, as the person
29
who experienced it. Mr. Walker entered her room and, on one
occasion, touched her in a way, it wasnât criminal. She called
that the first time that he entered her room. He said sorry, told
her not to tell. And you know what? She didnât tell. Itâs the
second time he enters her room, the first time he touches her
inappropriately, thatâs what Count I is. Testimony of [KR]
was that he touched her vagina area, above her clothes. On that
occasion, he didnât take off his clothes, he didnât take off her
clothes, but he rubbed her vagina. That is sexual contact. . . .
Count II, same elements. [KR] says he comes in a
second time. The second time he touches her. . . . Count III,
the same. KR begins talking, Count IV, about other stuff that
the Defendant starts doing, not the first time, not the second
time. Itâs the third time. He gets more brazen. This time he
takes off some of his own clothing. . . . Count V, comes in,
sexual contact with her vagina.
(Emphasis added.)
[¶65] We, in line with other jurisdictions, have considered clarifying statements in closing
argument when affirming a conviction based on ambiguous instructions. Gentilini, ¶¶ 16â
26, 231 P.3d at 1285â88; State v. Henry, 568 S.W.3d 464, 477(Mo. Ct. App. 2019) (âthe State in closing argument specified that the sodomy charge in count III was for the conduct that occurred on Carr St. in the laundry room when Henry would have S.B. move the trash can before sodomizing herâ); State v. Babcock,2020 SD 71
, ¶¶ 47â49,952 N.W.2d 750, 764
(âThe jury can also be properly informed of which offense corresponds to each count by the use of proper jury instructions, or, if clearly and succinctly stated, it can be expressed during closing remarks.â); Middleton,541 U.S. at 438
,124 S.Ct. at 1833
(âNothing in Boyde [v. California,494 U.S. 370, 384
,110 S.Ct. 1190, 1200
,108 L.Ed.2d 316
(1990)]
precludes a state court from assuming that counselâs arguments clarified an ambiguous jury
charge.â).
[¶66] Here, KR clearly testified to the facts as to the second time Mr. Walker entered her
room. In the Stateâs closing argument, the prosecutor succinctly stated that Count I was
based on the second time Mr. Walker entered KRâs bedroom. Given KRâs testimony and
the direct information in the closing statement, we find no reasonable probability that the
jury did not reach a unanimous conclusion for the factual basis of Count I.
[¶67] The same cannot be said for the remaining charges. Other than identifying the first
inappropriate touching, the remainder of KRâs testimony was unclear as to facts supporting
Counts II and III, and the closing argument does nothing to clarify these counts for the jury.
In fact, the argument claims there was a fifth event, while a sixth entry into KRâs bedroom
30
was never established in the testimony. There is a reasonable probability that the jury did
not reach unanimity on Counts II and III.
[¶68] Finally, the State argues Mr. Walker cannot establish prejudice because there is no
evidence of juror confusion as demonstrated by the jury questions in Heywood, Morones,
and Gentilini. The problem with limiting our focus to evidence of jury confusion is that it
distracts from the constitutional problemâthe possibility that the jury did not reach
unanimity on each charge. It is entirely possible that a jury may not feel confused,
especially if it has been misled by the instructions it was given. Here, the jury was never
instructed that they must be unanimous as to the factual basis for each count. The juryâs
unanimous conclusion that KR was abused three times is not sufficient when the State
presented evidence of more than three events.
[¶69] We cannot pretend to know what occurred in the jury room. However, we presume
the jury followed the courtâs instructions. Haynes v. State, 2008 WY 75, ¶ 22,186 P.3d 1204, 1209
(Wyo. 2008); Collins v. State,2015 WY 92, ¶ 22
,354 P.3d 55, 60
(Wyo. 2015).
The instructions allowed individual jurors to rely on different acts of abuse from the larger
pool of alleged criminal acts presented by the State as the basis for returning convictions
on Counts II and III.
CONCLUSION
[¶70] The district courtâs failure to properly instruct the jury violated a clear and
unequivocable rule of law which adversely affected Mr. Walkerâs substantial rights. We
therefore affirm Mr. Walkerâs convictions on Counts I and VI, reverse his convictions on
Counts II and III, and remand for a new trial on these counts.
31