IN THE SUPREME COURT, STATE OF WYOMING
2023 WY 26
OCTOBER TERM, A.D. 2022
March 29, 2023
KELLY JAMES PERSON,
Appellant
(Defendant),
v. S-22-0108
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Laramie County
The Honorable Peter H. Froelicher, Judge
Representing Appellant:
Office of the State Public Defender: Diane Lozano, Wyoming State Public
Defender; Kirk A. Morgan, Chief Appellate Counsel; Robin S. Cooper, Senior
Assistant Appellate Counsel. Argument by Ms. Cooper.
Representing Appellee:
Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney
General; Donovan Burton, Assistant Attorney General. Argument by Mr. Burton.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.
FOX, C.J., delivers the opinion of the Court; BOOMGAARDEN, J., files an opinion
concurring in part and dissenting in part, in which FENN, J., joins.
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.
FOX, Chief Justice.
[¶1] A jury convicted Kelly James Person of stalking his ex-wife. On appeal, he argues
he was denied his right to a speedy trial and the district court committed prejudicial error
by providing a general intent jury instruction when stalking is a specific intent crime. We
conclude Mr. Person was not denied his right to a speedy trial and although the district
court erred by instructing the jury as it did, the error was not prejudicial. We affirm.
ISSUES
[¶2] We rephrase the issues:
1. Was Mr. Person denied his right to a speedy trial under
Wyoming Rule of Criminal Procedure (W.R.Cr.P.) 48
or the Sixth Amendment to the United States
Constitution? 1
2. Did the district court commit reversible error by
providing the jury a general intent instruction when
stalking is a specific intent crime?
FACTS
Background & 2019 Proceedings
[¶3] Mr. Person and AP divorced in June 2019. AP was awarded sole custody of their
two minor children. Mr. Person persistently contacted AP over the next several months,
in violation of his bond conditions in two misdemeanor cases.
[¶4] On September 24, 2019, the State charged Mr. Person with one count of felony
stalking, alleging that, between September 17 and 23, 2019, he “did unlawfully with
intent to harass [AP], engage in a course of conduct reasonably likely to harass [AP],” in
violation of Wyo. Stat. Ann. § 6-2-506(b)(i)-(iv) (LexisNexis 2021). The State further
alleged the offense was a felony because Mr. Person “did so in violation of [a] condition
of probation, parole or bail” pursuant to § 6-2-506(e)(iii) (LexisNexis 2021). The State
later amended the charge to allege Mr. Person stalked AP between August 8 and
September 23, 2019.
1
Mr. Person references his right to a speedy trial under the Wyoming Constitution but does not separately
analyze its application to his case. We therefore do not address his speedy trial claim under the Wyoming
Constitution. See Crebs v. State, 2020 WY 136, ¶ 13 n.4, 474 P.3d 1136, 1142 n.4 (Wyo. 2020).
1
[¶5] The circuit court held Mr. Person’s preliminary hearing on October 4 and bound
the charge over to the district court where he was arraigned on October 10. 2 He pled not
guilty, and his trial was scheduled for February 10, 2020.
2020 Proceedings
[¶6] On January 22, 2020, Mr. Person’s first attorney (retained counsel) moved to have
him examined by the Wyoming State Hospital to determine whether he could conform
his conduct to the law at the time of the alleged incidents and effectively assist in his
defense. Mr. Person objected to the evaluation. He did not want to enter a not guilty by
reason of mental illness plea and asked the court to appoint a public defender to represent
him. On January 31, after receiving Mr. Person’s affidavit of indigency, the court
appointed the Office of the State Public Defender to represent him. It then continued trial
to March 16.
[¶7] On March 3, the court, on the State’s motion, ordered the Wyoming State Hospital
to examine Mr. Person to assess his competency to proceed. It granted the Hospital one
extension to complete the report due to pandemic-related travel restrictions. The Hospital
filed a report on May 27 opining that Mr. Person was competent to proceed. The court
held an evaluation status hearing on June 18 and placed the case on the trial stack for July
27.
[¶8] Governor Mark Gordon declared a state of emergency in Wyoming on March 13
due to the public health risk posed by the coronavirus. On March 18, this Court ordered
Wyoming district courts to take certain precautions, including suspending most in-person
proceedings until April 10, and later extended the suspension to May 31 and again to
August 3. By order dated July 24, this Court requested each judicial district to develop
and submit a jury trial operating plan for approval before conducting jury trials. The
district court continued Mr. Person’s trial to August, explaining to the parties that the
First Judicial District was in the process of developing its operating plan. Defense
counsel did not object to the continuance when the court announced it during a
scheduling conference. The court’s continuance order notified Mr. Person of his right to
file a written objection within five days, and he again did not object.
[¶9] In August, the court again continued trial to September due to the pandemic. The
First Judicial District had filed an approved operating plan but did not have enough
employees to execute the plan. The continuance order provided Mr. Person notice of his
right to file a written objection within five days. He again did not file a written objection.
2
Mr. Person’s bond was initially set at $250,000 cash and later reduced to $25,000 cash. He was unable
to post bond.
2
[¶10] In September, the court continued trial to October because the Sheriff’s
Department was waiting for a temperature scanner to arrive and needed to train the
bailiffs how to conduct health screenings in accordance with the jury trial operating plan.
Defense counsel objected to this continuance at a scheduling conference. The court
instructed Mr. Person to file a written objection addressing substantial prejudice, and
restated Mr. Person’s opportunity to object within five days in its continuance order. No
written objection was filed.
[¶11] In October, the court continued trial to December because the First Judicial
District’s approved jury trial operating plan provided that each of the four district court
judges could conduct a jury trial for only five days per month. Both sides agreed they
needed more than five days for Mr. Person’s trial. The court’s continuance order notified
Mr. Person of his right to file a written objection within five days. He did not file a
written objection.
[¶12] In December, the court continued trial to February 2021, based on this Court’s
November 13 order stating no jury trials should be conducted until further notice due to a
dramatic increase in coronavirus cases in Wyoming. Moreover, the court still could not
accommodate a trial longer than five days. The court’s continuance order provided Mr.
Person notice of his right to file a written objection within five days. He did not file a
written objection.
2021 Proceedings
[¶13] In February 2021, the court continued trial to March based on this Court’s January
6 order, which stated no jury trials should be conducted even if the court had an approved
jury trial operating plan unless the courthouse conditions and community health allowed
for jury trials to be conducted safely. The court found it could not safely conduct a jury
trial in February, and the First Judicial District needed additional time to amend its
operating plan and train participants accordingly. The court’s continuance order notified
Mr. Person of his right to file a written objection within five days. He did not file a
written objection.
[¶14] The court then continued trial to April because it still could not accommodate
trials requiring more than five days. The court’s continuance order notified Mr. Person of
his right to file a written objection within five days. He did not file a written objection.
[¶15] In April, the court continued trial to May. At a scheduling conference, the court
explained it still could not accommodate trials lasting longer than five days. For the first
time, the State asserted the case could be tried in five days. Defense counsel disagreed.
The court deferred to defense counsel and continued the trial but asked the parties to
carefully examine the issue. The court’s continuance order notified Mr. Person of his
right to file a written objection within five days. He did not file a written objection.
3
[¶16] Mr. Person filed his first written objection to the continuance of his trial in May.
Before hearing the objection, the court continued trial to June. At a scheduling
conference, the court explained it could not accommodate trials lasting more than five
days but hoped to be able to do so beginning July 1. Defense counsel remained adamant
Mr. Person’s trial would take more than five days. The State continued to believe the case
could be tried in five days but deferred to defense counsel. The court continued trial and
set a hearing on Mr. Person’s objection.
[¶17] At the hearing, defense counsel stated Mr. Person would be ready for trial by the
end of June and needed more than five days for trial. The court left the trial setting for
June, noting it could not accommodate trials requiring more than five days under its
current jury trial operating plan. The court also noted it had an obligation to keep all jury
participants safe from the coronavirus, and Mr. Person failed to show the delay would
substantially prejudice him.
[¶18] Later in May, the court continued trial to July 26. The continuance order explained
that the First Judicial District had adopted and filed a second amended jury trial operating
plan that, effective July 1, would allow district court judges in the First Judicial District
to conduct concurrent jury trials, thus allowing each judge to begin docketing trials that
could last longer than five days. The court, however, had five pending criminal cases,
including Mr. Person’s, that had been significantly delayed due to the prior jury trial
limitations. Six days were set aside for his trial, which was stacked first. The order
notified Mr. Person he had ten days to file a written objection addressing how the delay
may prejudice his defense. He did not file a written objection.
[¶19] In early June, Mr. Person retained a private attorney (trial counsel). On July 15,
trial counsel moved to dismiss the case with prejudice on speedy trial grounds. The court
heard argument on the motion and denied it.
[¶20] Mr. Person’s trial commenced on July 26, 2021, and lasted four days. The State’s
main witness, AP, testified about a series of incidents that occurred after her divorce from
Mr. Person, when his bond conditions required he have no contact with her. She testified:
• On August 10, someone driving Mr. Person’s cousin’s
vehicle pulled up next to AP’s car parked in the Texas
Roadhouse parking lot while she was working there. The
individual exited the vehicle, pried open the gas tank to
AP’s vehicle, and poured a white substance inside,
disabling the vehicle. AP suspected Mr. Person based on
surveillance video footage.
4
• On August 29 and 31, someone entered the home she and
Mr. Person previously lived in together and destroyed the
personal belongings she had stored there. AP suspected
Mr. Person because his brother lived in the house, only
her belongings were destroyed, and certain pieces of
jewelry Mr. Person had given AP while they were
together were missing.
• On September 4, Mr. Person left a note on her vehicle
stating the vehicle was paid through December, he would
like a contact number for his children, and “if it continues
nothing good will come.”
• On September 5, Mr. Person sent AP an email stating
“You are an exaggerating b*tch[,] you are are [sic] trying
to convince my children to fear[,] you are a piece of sh*t
money hungry b*tch . . . take this email to the police to
you lier [sic] . . . [for] this stalking criminal case . . . you
are a piece of sh*t live in fear then.” (altered) He also
showed up at their daughter’s elementary school and
yelled obscenities at AP.
• On September 8, Mr. Person’s acquaintance passed along
a message from Mr. Person that led AP to call the police.
• On September 9, AP received an email from Mr. Person
calling her obscene names and telling her that now their
children were not going to have a mom or dad. That night,
Mr. Person entered the restaurant where she worked and
was looking around for her. AP felt threatened and called
911. He had a noticeable bulge on his hip, covered by his
shirt. Mr. Person sat at the bar for a few minutes, drinking
a beer and scanning the restaurant. He left shortly
thereafter, before police arrived.
• On September 10, AP was driving her son to soccer
practice when a vehicle she did not recognize began
following her and nearly ran her off the road. It was Mr.
Person driving a rental car and wearing a disguise. He
tried to enter the vehicle through the driver’s side and
passenger’s side door, as the children screamed, but the
5
doors were locked. He left immediately when AP’s son
called 911.
• On September 11, AP went to Enterprise Rent-A-Car to
rent a vehicle so Mr. Person would not know what she
was driving. While there, she noticed Mr. Person’s cousin
approaching and felt threatened, so the employees locked
the building and she called 911. Later that day, Mr. Person
texted the children’s phone stating he saw them at
Enterprise.
• On September 23, AP received a phone call from a
restricted number. She answered and recognized Mr.
Person’s voice. He called her a “f*cking b*tch” and hung
up. (altered) She then received several text messages
accusing her of being in a romantic relationship with
someone else and threatening to torture the man and make
him “squeal like a pig” while she watched.
[¶21] Mr. Person testified in his own defense. He countered AP’s recollection of certain
events and suggested she was exaggerating. For example, Mr. Person suggested the
vehicle incident involved a misunderstanding. He planned to go to the soccer field to
watch his son’s soccer practice because he had not seen his children for a long time. He
thought his children would think it was funny if he wore a hat and wig, and he was
driving a rental car because his was in the shop for repairs. When he drove past AP, he
turned around to follow her to the soccer field, did not run her off the road, and
approached her car after she parked. In addition, Mr. Person denied putting anything in
AP’s gas tank or destroying her personal belongings, and offered explanations for some
of his statements to AP. He further denied having any intent to harass AP.
[¶22] Amanda Wilson, manager of the Texas Roadhouse at the time of the alleged
incidents, also testified that Mr. Person called the restaurant and demanded to talk to AP.
When she refused, Mr. Person became very upset, screamed profanities at her, and
threatened to come to the restaurant and kill Ms. Wilson and AP. Ms. Wilson
immediately locked the front doors of the building and called the police.
[¶23] Over trial counsel’s objection, the court provided the jury a general intent
instruction (Instruction No. 14), along with a correct instruction on the elements of
stalking (Instruction No. 15). The jury found Mr. Person guilty of stalking on July 30. He
was sentenced to four to six years in prison, with 828 days credit for time served.
6
DISCUSSION
I. Mr. Person was not denied his right to a speedy trial under W.R.Cr.P. 48 or the
Sixth Amendment to the United States Constitution.
[¶24] Mr. Person argues the State violated his right to a speedy trial under Rule 48 and
the Sixth Amendment to the United States Constitution. We review his speedy trial
claims de novo. Vlahos v. State, 2022 WY 129, ¶ 31, 518 P.3d 1057, 1066 (Wyo. 2022).
A. W.R.Cr.P. 48
[¶25] We first address Mr. Person’s Rule 48 speedy trial claim. Rule 48(b)(2) requires a
criminal charge to be brought to trial within 180 days after arraignment unless trial is
continued under one of the rule’s exceptions. W.R.Cr.P. 48(b)(2). Rule 48(b)(5) requires
dismissal of any criminal case that is not so tried or continued. W.R.Cr.P. 48(b)(5).
Compliance with the rule is mandatory. Vlahos, 2022 WY 129, ¶ 32, 518 P.3d at 1067
(citing Castellanos v. State, 2016 WY 11, ¶ 49, 366 P.3d 1279, 1294-95 (Wyo. 2016)).
[¶26] Rule 48 excludes “[a]ll proceedings related to the mental illness or deficiency of
the defendant” and “[d]elay occasioned by defendant’s change of counsel” from the 180-
day computation. W.R.Cr.P. 48(b)(3)(A), (D). The court may also continue trial beyond
180 days on its own motion if “[r]equired in the due administration of justice and the
defendant will not be substantially prejudiced[.]” W.R.Cr.P. 48(b)(4)(B)(iii). If the court
proposes a continuance, the defendant must be notified and, if the defendant objects, he
“must show in writing how the delay may prejudice the defense.” W.R.Cr.P. 48(b)(4)(C).
[¶27] Mr. Person was arraigned on October 10, 2019, and originally scheduled for trial
on February 10, 2020, 123 days after arraignment. His trial was delayed numerous times
and began on July 26, 2021, 655 days after arraignment. Our Rule 48 analysis requires
we determine what amount of that delay, if any, counts toward the 180-day period within
which Mr. Person was required to be brought to trial following arraignment. We conclude
only the first 123 days count toward the 180-day period.
February 10 to March 3, 2020
[¶28] The delay from February 10 to March 3, 2020, is excluded from the computation
because it was attributable to Mr. Person’s change of counsel. W.R.Cr.P. 48(b)(3)(D).
March 3 to June 18, 2020
[¶29] The delay from March 3 to June 18, 2020, is excluded from the computation
because it was attributable to Mr. Person’s competency evaluation. W.R.Cr.P.
48(b)(3)(A).
7
[¶30] Mr. Person suggests the period attributable to his competency evaluation ended
when the district court received the Hospital’s report on May 27. It did not. We have
made clear that the period of delay attributable to competency ends not when the
Wyoming State Hospital opines that the defendant is competent to proceed but when the
district court makes such determination. See, e.g., Castellanos, 2016 WY 11, ¶¶ 55-56,
366 P.3d at 1296; Vlahos, 2022 WY 129, ¶ 49, 518 P.3d at 1071. That occurred on June
18.
June 18 to July 27, 2020
[¶31] At the June 18 evaluation status hearing, the court placed Mr. Person’s case on the
trial stack for July 27, 2020. “As a practical matter, a trial cannot be set to begin the
moment a suspension of proceedings is lifted.” Vlahos, 2022 WY 129, ¶ 43, 518 P.3d at
1069 (quoting Castellanos, 2016 WY 11, ¶ 65, 366 P.3d at 1298). “Rule 48 ‘anticipates
such a situation’ and ‘allows for a continuance of the 180-day limit if required in the due
administration of justice and there is no resulting prejudice to the defendant.’” Id.
(quoting Castellanos, 2016 WY 11, ¶ 65, 366 P.3d at 1298). However, trial should be set
as soon as possible after competency is established. Id. at ¶ 44, 518 P.3d at 1070.
[¶32] The approximate five-week delay from the evaluation status hearing on June 18 to
the July 27, 2020, trial setting was reasonable, encompassed the period in which this
Court suspended most in-person proceedings, and was necessitated in the due
administration of justice pursuant to W.R.Cr.P. 48(b)(4)(B)(iii). See Vlahos, 2022 WY
129, ¶ 45, 518 P.3d at 1070. (determining setting trial five months after the competency
evaluation status hearing was reasonable in light of the COVID-19 pandemic and the
delay did not count against the 180-day period). Moreover, Mr. Person did not object to
the setting.
July 27, 2020, to July 26, 2021
[¶33] The court continued trial ten times between July 27, 2020, and July 26, 2021, due
to COVID-19. The court regularly held scheduling conferences to discuss the situation
with the parties. Each time the court continued Mr. Person’s trial it issued a written
continuance order documenting the reasons for the continuance, finding the continuance
was required in the due administration of justice pursuant to W.R.Cr.P. 48(b)(4)(B)(iii),
and providing Mr. Person notice of his right to file a written objection showing how the
delay would prejudice his defense.
[¶34] Mr. Person acknowledges the district court “follow[ed] the mandates of Rule
48(b)(4) continuances by giving notice to Mr. Person of the extraordinary circumstances
of holding a trial in light of COVID-19 closures and restrictions as to use of a courtroom
among four different judges.” He notes he “object[ed] in writing and argue[d] how the
8
delay may prejudice his defense.” It is true Mr. Person filed a written objection in May
2021, but the court held a hearing to address his objection and concluded he failed to
show the delay would substantially prejudice him. Mr. Person offers no cogent argument
to rebut the court’s finding or to show why the continuances for the COVID-19 pandemic
should not be excluded from the Rule 48 computation. See Pier v. State, 2019 WY 3,
¶ 26, 432 P.3d 890, 898 (Wyo. 2019) (citing Blevins v. State, 2017 WY 43, ¶ 22, 393
P.3d 1249, 1254-55 (Wyo. 2017) (“We do not address arguments not supported by cogent
argument or citation to pertinent authority.”). We conclude the continuance periods
should be excluded as they were required in the due administration of justice and the
court complied with Rule 48 requirements with each continuance.
B. Constitutional Right to Speedy Trial
[¶35] We turn next to Mr. Person’s Sixth Amendment speedy trial claim. The Sixth
Amendment to the United States Constitution guarantees criminal defendants a speedy
trial. U.S. Const. amend. VI. A constitutional speedy trial analysis requires we consider
the four factors articulated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d
101 (1972): “(1) the length of the delay, (2) the reason for the delay, (3) the defendant’s
assertion of his right, and (4) prejudice to the defendant.” Vlahos, 2022 WY 129, ¶ 51,
518 P.3d at 1071 (quoting Cotney v. State, 2022 WY 17, ¶ 19, 503 P.3d 58, 66 (Wyo.
2022)). No Barker factor is dispositive, and they must be considered “together and
balanced in relation to all relevant circumstances.” Id. (quoting Fairbourn v. State, 2020
WY 73, ¶ 42, 465 P.3d 413, 425 (Wyo. 2020)).
1. Length of the Delay
[¶36] The first Barker factor requires we examine the length of the delay. “The
constitutional ‘speedy trial clock begins to run at the time of arrest, information, or
indictment, whichever occurs first.’” Id. at ¶ 52, 518 P.3d at 1071 (quoting Cotney, 2022
WY 17, ¶ 20, 503 P.3d at 66). The clock ends on conviction, on acquittal, or when the
defendant is no longer under indictment. Id. (citing Cotney, 2022 WY 17, ¶ 20, 503 P.3d
at 66). “No precise length of delay constitutes an automatic violation of a constitutional
right to a speedy trial, but a delay of over 365 days presumptively triggers review of the
other Barker factors.” Id. (citing Cotney, 2022 WY 17, ¶ 20, 503 P.3d at 66).
[¶37] Mr. Person was charged with stalking on September 24, 2019, and convicted on
July 30, 2021. 3 A total of 675 days elapsed between those dates. The 675-day delay
3
Mr. Person cites no authority to support his assertion that his constitutional speedy trial clock should
begin on September 12, 2019, when he was arrested for aggravated assault based on the September 10
vehicle incident, and therefore his argument will not be addressed. See Pier, 2019 WY 3, ¶ 26, 432 P.3d
at 898.
9
triggers review of the other Barker factors and weighs in Mr. Person’s favor. See Tate v.
State, 2016 WY 102, ¶ 31, 382 P.3d 762, 769 (Wyo. 2016) (“[T]he longer the delay, the
more likely it is that the first factor will weigh in the defendant’s favor.” (citation
omitted)); Vlahos, 2022 WY 129, ¶ 64, 518 P.3d at 1073 (weighing the 622-day delay in
appellant’s favor); Griggs v. State, 2016 WY 16, ¶¶ 61, 74, 367 P.3d 1108, 1129, 1131
(Wyo. 2016) (weighing the 411-day delay in appellant’s favor).
2. Reason for the Delay
[¶38] The second Barker factor requires we examine who or what caused the delay.
Vlahos, 2022 WY 129, ¶ 53, 518 P.3d at 1071-72 (citing Cotney, 2022 WY 17, ¶ 21, 503
P.3d at 66). Any delays caused by the State are weighed against those caused by Mr.
Person, bearing in mind the State had the burden to bring Mr. Person to trial in a timely
manner and must show the delays were reasonable and necessary. Id. at ¶ 53, 518 P.3d at
1072 (citing Cotney, 2022 WY 17, ¶ 21, 503 P.3d at 66).
[¶39] Mr. Person is responsible for the delay from February 10 to March 3, 2020,
because it was caused by his change of counsel. Griggs, 2016 WY 16, ¶ 63, 367 P.3d at
1129 (“A defendant is responsible for delays associated with his changes of counsel[.]”
(citation omitted)).
[¶40] The delay from March 3 to June 18, 2020, is neutral because it was caused by the
competency evaluation and determination. Vlahos, 2022 WY 129, ¶ 55, 518 P.3d at 1072
(“Delays due to competency evaluations are considered neutral.” (citing Castellanos,
2016 WY 11, ¶ 81, 366 P.3d at 1301-02)).
[¶41] The delay from June 18 to July 27, 2020, is neutral because it was caused by the
court’s need to re-docket the case after the competency evaluation and determination. Id.
at ¶ 56, 518 P.3d at 1072 (“Delays due to crowded dockets and court schedules are
neutral and are not weighed heavily against the State.” (citing Cotney, 2022 WY 17, ¶ 21,
503 P.3d at 66)).
[¶42] The delay from July 27, 2020, to July 26, 2021, is neutral because it was caused by
the pandemic. Id. at ¶ 54, 518 P.3d at 1072 (“Delays due to [the] COVID-19 pandemic
are neutral because the pandemic ‘was an extraordinary circumstance not attributable to
either the State’ or Mr. Vlahos.” (quoting Cotney, 2022 WY 17, ¶ 24, 503 P.3d at 67)).
[¶43] The vast majority of the delay is neutral. The second factor weighs only slightly
against Mr. Person, as a small portion of the delay is attributable to his change of counsel,
and no portion of the delay is attributable to the State.
10
3. Defendant’s Assertion of his Right to Speedy Trial
[¶44] The third Barker factor requires we examine to what extent, if any, Mr. Person
asserted his speedy trial right. Id. at ¶ 59, 518 P.3d at 1072. Though Mr. Person did not
have to assert his speedy trial right, “the vigor with which [he did so] is an important
consideration in determining the reasonableness of any delay.” Id. (quoting Cotney, 2022
WY 17, ¶ 26, 503 P.3d at 67). Consistent assertion of his right would weigh heavily in his
favor. Id. (citing Cotney, 2022 WY 17, ¶ 26, 503 P.3d at 67). Less than vigorous assertion
of his right is given little weight. Id. (citing Cotney, 2022 WY 17, ¶ 26, 503 P.3d at 67).
[¶45] Mr. Person filed a speedy trial demand in circuit court but, for an unknown reason,
that demand never made its way into the district court record. On October 27, 2020, Mr.
Person filed a motion for bond reduction that touched on speedy trial concerns but
contained no speedy trial demand. Defense counsel verbally objected to a continuance at
the September 2020 scheduling conference but did not file a written objection addressing
prejudice when instructed to do so to preserve the objection. Nor did Mr. Person object
when the court repeatedly continued trial between September 2020 and May 2021 due to
the pandemic.
[¶46] Mr. Person filed his first written objection to a continuance in May 2021,
expressly stating he did not previously object “because he [understood] the situation with
the pandemic and the concern [for] public safety.” But, even then, he was not prepared to
go to trial in May and stated he would be ready to go to trial in June. After obtaining
different counsel, he moved to dismiss the charge on speedy trial grounds approximately
10 days before trial.
[¶47] Though Mr. Person asserted his right to a speedy trial, he did so sporadically, not
vigorously. Berry v. State, 2004 WY 81, ¶ 45, 93 P.3d 222, 236 (Wyo. 2004) (weighing
the third factor heavily in Mr. Berry’s favor because he asserted his speedy trial right on
eight separate occasions over two years); Castellanos, 2016 WY 11, ¶ 87, 366 P.3d at
1302-03 (weighing the third factor in Mr. Castellanos’ favor because, early in the
proceedings, defense counsel notified the court Mr. Castellanos would not waive his
speedy trial right and then repeatedly asserted the right); Cotney, 2022 WY 17, ¶ 26, 503
P.3d at 67 (weighing the third factor heavily in Mr. Cotney’s favor because it was
undisputed he consistently asserted his speedy trial right). We accordingly give the third
factor little weight in the speedy trial analysis. See Vlahos, 2022 WY 129, ¶ 59, 518 P.3d
at 1072.
4. Prejudice
[¶48] The fourth Barker factor requires we consider whether the delay prejudiced Mr.
Person. We assess prejudice “in the light of the ‘interests that the speedy trial right was
designed to protect.’” Crebs, 2020 WY 136, ¶ 45, 474 P.3d at 1148 (quoting Tate, 2016
11
WY 102, ¶ 39, 382 P.3d at 770); Barker, 407 U.S. at 532, 92 S.Ct. at 2193. “The interests
that the speedy trial right was designed to protect are: (1) prevention of oppressive
pretrial incarceration; (2) minimization of the accused’s anxiety and concern; and (3)
minimization of the possibility that a delay will hinder the defense.” Crebs, 2020 WY
136, ¶ 45, 474 P.3d at 1148 (citing Barker, 407 U.S. at 532, 92 S.Ct. at 2193). We often
shorthand these interests as “(1) lengthy pretrial incarceration; (2) pretrial anxiety; and
(3) impairment of the defense.” Tate, 2016 WY 102, ¶ 39 n.9, 382 P.3d at 770 n.9
(citation omitted). Mr. Person has “the burden ‘to demonstrate and substantiate’ he was
prejudiced by the delay.” Crebs, 2020 WY 136, ¶ 45, 474 P.3d at 1148 (quoting
Fairbourn, 2020 WY 73, ¶ 57, 465 P.3d at 427). Though Mr. Person is not required to
demonstrate prejudice to prevail on his speedy trial claim, we must consider the presence
or absence of prejudice in the Barker analysis. Webb v. State, 2017 WY 108, ¶ 23, 401
P.3d 914, 924 (Wyo. 2017) (citation omitted). Moreover, if Mr. Person does not
“demonstrate prejudice, the other three Barker factors must weigh heavily in his favor to
establish a speedy trial violation.” Id. (citation omitted).
[¶49] Mr. Person argues all three prejudice considerations weigh in his favor. We
address each in turn, finding prejudice only as to the first.
Lengthy Pretrial Incarceration
[¶50] Prevention of oppressive pretrial incarceration is the second most important
interest the speedy trial right was designed to protect. Tate, 2016 WY 102, ¶ 39, 382 P.3d
at 771 (citing United States v. Hicks, 779 F.3d 1163, 1169 (10th Cir. 2015)); Barker, 407
U.S. at 532-33, 92 S.Ct. at 2193). Mr. Person’s lengthy pretrial incarceration of 675 days
undoubtedly impacted his relationships, employment, and finances, and thus gave rise to
some degree of prejudice. Castellanos, 2016 WY 11, ¶ 89, 366 P.3d at 1303 (finding the
record supported Mr. Castellanos’ claim of prejudice related to his 910-day pretrial
incarceration, “which undoubtedly resulted in a loss of relationships, employment, and
assets”); Lafferty v. State, 2016 WY 52, ¶ 63, 374 P.3d 1244, 1255 (Wyo. 2016) (“Mr.
Lafferty has shown that he suffered lengthy pretrial incarceration, as 811 days is indeed
extensive.”); Sisneros v. State, 2005 WY 139, ¶ 29, 121 P.3d 790, 800 (Wyo. 2005)
(concluding Mr. Sisneros undoubtedly “suffered some prejudice as a result of the delay”
in his case, as “his liberty was severely restricted and his extended incarceration
necessarily affected his ‘employment opportunities, financial resources and association’
with family and friends” (citation omitted)).
Pretrial Anxiety
[¶51] Minimization of the accused’s anxiety and concern is the least significant interest
the speedy trial right was designed to protect. Tate, 2016 WY 102, ¶ 39, 382 P.3d at 771.
Because a certain amount of pretrial anxiety exists in every criminal case, “a defendant
must demonstrate extraordinary or unusual pretrial anxiety.” Id. (citation omitted). Bare
12
assertions of anxiety are not enough. Cotney, 2022 WY 17, ¶ 28, 503 P.3d at 67 (citation
omitted). Mr. Person has made only bare assertions of pretrial anxiety throughout these
proceedings. He has not shown his anxiety was extraordinary or unusual. Castellanos,
2016 WY 11, ¶ 89, 366 P.3d at 1303 (noting Mr. Castellanos “point[ed] to detailed record
support relating to his pretrial anxiety”).
Impaired Defense
[¶52] Minimizing the possibility that delay will hinder the defense is the most important
interest the speedy trial right was designed to protect, as a “defendant’s inability to
adequately prepare and present his case can render a trial unfair.” Tate, 2016 WY 102,
¶ 39, 382 P.3d at 770-71 (citation omitted). The inquiry focuses on “whether the delay
resulted in a loss of evidence or impaired the defense by the ‘death, disappearance, or
memory loss of witnesses for the defense.’” Cotney, 2022 WY 17, ¶ 29, 503 P.3d at 68
(quoting Castellanos, 2016 WY 11, ¶ 90, 366 P.3d at 1303).
[¶53] Mr. Person asserts witnesses had difficulty remembering certain information due
to the amount of time that passed between when the charged incidents occurred in August
and September 2019 and his trial in July 2021. He more specifically notes AP could not
recall on which road the September 10 vehicle incident occurred, and Rodney Helgeson
could not remember the date of the incident he testified about.
[¶54] AP and Mr. Helgeson were the prosecution’s witnesses, not defense witnesses.
“When it is the prosecution’s witnesses who have suffered memory losses, the State is
prejudiced at least as much as, or more than, the defendant.” Fortner v. State, 843 P.2d
1139, 1143 (Wyo. 1992).
“[D]elay is a two-edged sword. It is the Government that
bears the burden of proving its case beyond a reasonable
doubt. The passage of time may make it difficult or
impossible for the Government to carry this burden.”
Id. (quoting State v. Mouser, 806 P.2d 330, 337 (Alaska Ct. App. 1991)). See also
Barker, 407 U.S. at 521, 92 S.Ct. at 2187 (noting that “[a]s the time between the
commission of the crime and trial lengthens, witnesses may become unavailable or their
memories may fade” and “[i]f the witnesses support the prosecution, its case will be
weakened, sometimes seriously so”).
[¶55] AP’s inability to recall the precise road on which the September 10 vehicle
incident occurred had minimal evidentiary impact. She remembered the general vicinity
where it occurred, and there was no dispute it occurred in Laramie County. The police
officer who responded to AP’s 911 call testified the incident occurred in Laramie County
as did Mr. Person. Moreover, Mr. Person used AP’s imperfect recall to his advantage on
13
cross-examination by highlighting AP’s inability to recall the precise road in an attempt
to undermine her credibility. Ridinger v. State, 2021 WY 4, ¶ 23, 478 P.3d 1160, 1166
(Wyo. 2021) (noting the appellant took advantage of the victim’s inability to recall
certain details about the incident on cross-examination). He has not shown how AP’s
imperfect memory harmed his defense.
[¶56] Mr. Helgeson’s testimony was also of minimal evidentiary import, as even the
State acknowledged the incident he was going to testify about only “loosely relate[d] to
[AP].” Mr. Helgeson was familiar with Mr. Person because his daughter was married to
AP’s brother. He testified about an incident where Mr. Person came to his home, “was
very angry and agitated,” and “was incoherent.” He could not remember precisely when
the incident occurred, suggesting it occurred in September 2019: “It was so long ago. It
was, I think, sometime in September a couple years ago right before COVID. Sometime
the fall before COVID, maybe. It’s so long ago I don’t remember exactly.” Mr. Person
himself cleared up any uncertainty when he testified the incident occurred within the
charged timeframe. Here again, Mr. Person has not shown how Mr. Helgeson’s imperfect
memory impaired his defense.
[¶57] Mr. Person also argues his defense was impaired because pandemic-related jail
restrictions hindered his ability to meet with trial counsel to prepare his defense. At least
one court has recognized pandemic-related restrictions in a detention center might suffice
to prove speedy trial prejudice under certain circumstances. Ali v. Commonwealth, 872
S.E.2d 662, 679 (Va. Ct. App. 2022). But that court rejected the appellant’s prejudice
argument because he failed to “articulate any specific way in which the . . . restrictions
impaired his ability to present a defense.” Id. Mr. Person’s argument similarly fails.
[¶58] At pretrial conference on July 20, 2021, trial counsel complained that recent
pandemic-related jail restrictions were limiting his ability to meet with Mr. Person to
prepare for trial. The court ordered a hearing to address these concerns. At a hearing two
days later, a deputy sheriff from the jail agreed to accommodate additional visitation time
for trial counsel to meet with Mr. Person. Trial counsel agreed the proposed
accommodations were reasonable. He raised no further concerns about his ability to meet
with Mr. Person to prepare for trial. Mr. Person fails to show any specific impairment to
his ability to present a defense.
[¶59] Considering the three interests the speedy trial right was designed to protect, we
conclude the fourth Barker factor weighs only slightly in Mr. Person’s favor, as he
established some degree of prejudice due to his lengthy pretrial incarceration but no
prejudice with respect to pretrial anxiety or impairment of his defense.
14
5. Balancing the Factors
[¶60] Balancing the Barker factors, we hold there was no violation of Mr. Person’s Sixth
Amendment speedy trial right. Though the long delay weighs in Mr. Person’s favor, none
of the delay was attributable to the State. A small portion was attributable to Mr. Person
changing counsel. The remainder of the delay was neutral, necessitated by a competency
evaluation, placing the case back on the docket following the competency determination,
and the extraordinary circumstances of the COVID-19 pandemic. Moreover, Mr. Person
did not vigorously assert his right to a speedy trial. And, though he undoubtedly suffered
some prejudice due to his lengthy pretrial incarceration, he failed to establish he suffered
extraordinary pretrial anxiety or that his defense was impaired because of the delay. The
prejudice factor therefore does not tip the scale in Mr. Person’s favor.
[¶61] Our inquiry in assessing Mr. Person’s speedy trial claim is whether the delay
substantially impaired his right to a fair trial. Crebs, 2020 WY 136, ¶ 50, 474 P.3d at
1149 (citation omitted). It did not. “The drastic remedy of dismissal with prejudice is not
justified in this case.” Id. at ¶ 49, 474 P.3d at 1149 (citation omitted).
II. The district court did not commit reversible error by instructing the jury as it
did.
[¶62] Mr. Person argues that the district court committed prejudicial error by instructing
the jury that a stalking charge under Wyo. Stat. Ann. § 6-2-506(b) is a general intent
crime. Proper jury instructions are a critical component of our criminal justice system.
The function of jury instructions is to afford the jury
with a foundational legal understanding to enable a reasoned
application of the facts to the law. Two major principles of
our system of justice are unwavering adherence to the rule of
law, and trust in juries to resolve factual disputes. Correct
instructions on the law are the thread that binds those two
principles together. They make it possible for the jury to
apply general rules of law enacted by the legislature or
adopted by the courts to the particular case before it.
Andersen v. State, 2014 WY 88, ¶ 14, 330 P.3d 256, 260 (Wyo. 2014) (cleaned up).
[¶63] Mr. Person objected to Instruction No. 14 at trial, and we therefore review for
abuse of discretion. Schuerman v. State, 2022 WY 160, ¶ 7, 522 P.3d 145, 147 (Wyo.
2022) (citing Niedlinger v. State, 2021 WY 39, ¶ 41, 482 P.3d 337, 349 (Wyo. 2021)).
We defer to the district court’s tailoring of jury instructions unless the instruction does
not correctly state the law. Id.
15
[¶64] Instruction No. 14 stated:
In the crime, Stalking, charged there must exist a
connection between the act or conduct and general criminal
intent.
General criminal intent requires that the charged act is
voluntarily taken, but it does not require any intention to
violate the law or any intention to do a further act or achieve
any further consequence, result, harm or injury from such act.
When a person voluntarily does that which the law declares to
be a crime, that person is acting with general criminal intent.
[¶65] Instruction No. 15 correctly set forth the elements of stalking:
The elements of the crime of Stalking, as charged in this case,
are:
1. On or between August 8, 2019 to September 23, 2019
2. In Laramie County, Wyoming
3. The Defendant Kelly Person
4. With the intent to harass [AP]
5. While engaged in a course of conduct reasonably likely to
harass [AP], another person
6. The Defendant committed the acts set forth in paragraphs 4
and 5 in violation of a condition of bail
7. 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 the
evidence that any of these elements has not been proved
beyond a reasonable doubt, then you should find the
defendant not guilty.
16
A. Abuse of Discretion
[¶66] Mr. Person argues the district court abused its discretion by giving Instruction
No. 14 because it described stalking as a general intent crime when it in fact requires
specific intent. We agree.
[¶67] General intent crimes are different from specific intent crimes. When a crime’s
definition “consists of only the description of a particular act, without reference to intent
to do a further act or achieve a future consequence the fact that the defendant intended to
do the proscribed act makes that crime a general criminal intent offense.” Kite v. State,
2018 WY 94, ¶ 23, 424 P.3d 255, 263 (Wyo. 2018) (citation omitted). In contrast, when a
statute “refers to [the] defendant’s intent to do some further act or achieve some
additional consequence, the crime is deemed to be one of specific intent.” Id. (citation
omitted). It is more difficult for the State to prove specific intent than general intent.
Simmons v. State, 674 P.2d 1294, 1297 (Wyo. 1984), superseded by statute on other
grounds as stated in Cox v. State, 829 P.2d 1183 (Wyo. 1992).
[¶68] It is unnecessary to instruct the jury on the difference between a general intent
crime and a specific intent crime and, in fact, these instructions should not be given due
to their “vagueness and general failure to enlighten juries.” Wyant v. State, 2020 WY 15,
¶ 10, 458 P.3d 13, 18 (Wyo. 2020) (quoting Compton v. State, 931 P.2d 936, 941 (Wyo.
1997)); Black v. State, 2020 WY 34, ¶ 46, 458 P.3d 1245, 1256 (Wyo. 2020); Keats v.
State, 2003 WY 19, ¶ 13, 64 P.3d 104, 108 (Wyo. 2003). “[I]t is more important that the
jury understand what exactly they are required to determine.” Dennis v. State, 2013 WY
67, ¶ 40, 302 P.3d 890, 898 (Wyo. 2013) (quoting Keats, 2003 WY 19, ¶ 13, 64 P.3d at
108).
[¶69] Wyoming’s stalking statute describes a specific intent crime, as it required the
State to prove Mr. Person intended to harass AP. See Wyo. Stat. Ann. § 6-2-506(b)
(LexisNexis 2021) (stating “a [defendant] commits the crime of stalking if, with intent to
harass another person, the [defendant] engages in a course of conduct reasonably likely to
harass that person”); Dean v. State, 2014 WY 158, ¶ 10, 339 P.3d 509, 512 (Wyo. 2014)
(“Section 6-2-506(b) requires a specific intent to harass.” (citation omitted)).
[¶70] Because stalking is a specific, not general intent crime, the State concedes
Instruction No. 14 failed to accurately state the law and should not have been given. We
agree and conclude the district court abused its discretion by giving it. See Schuerman,
2022 WY 160, ¶ 19, 522 P.3d at 150.
B. Prejudice
[¶71] The failure to properly instruct the jury on elements of a crime is trial error, rather
than structural error; therefore, the Appellant must demonstrate prejudice to establish
17
reversible error. See Walker v. State, 2022 WY 158, ¶ 17, 521 P.3d 967, 976 (Wyo. 2022)
(Walker III) (requiring a finding of prejudice). In Shull v. State, 2017 WY 14, ¶ 45, 388
P.3d 736, 774 (Wyo. 2017), overruled by Schmuck v. State, 2017 WY 140, 406 P.3d 286
(Wyo. 2017) the jury instructions in a first-degree murder case did not require the State to
prove the defendant did not act in the sudden heat of passion, which was error. We
analyzed the proper standard of review and distinguished structural error from trial error
as “a defect affecting the framework within which the trial proceeds, rather than simply
an error in the trial process itself.” Id. at ¶ 43, 388 P.3d at 773. Structural error is an error
so grave and fundamental that it requires automatic reversal, without regard to prejudice.
Yazzie v. State, 2021 WY 72, ¶ 13, 487 P.3d 555, 560 (Wyo. 2021) (quoting Neder v.
United States, 527 U.S. 1, 7, 119 S.Ct. 1827, 1833 (1999)). We held that the improper
jury instruction shifted the burden to disprove sudden heat of passion and affected the
framework of the trial so severely the error was structural. Shull, 2017 WY 14, ¶ 45, 388
P.3d at 774.
[¶72] We overruled that holding just months later. In Schmuck, as in Shull, this Court
found the district court erred by not instructing the jury during a first-degree murder trial
that the State must prove, beyond a reasonable doubt, the defendant did not act in the
sudden heat of passion. Schmuck, 2017 WY 140, ¶ 22, 406 P.3d at 293-94. But we
concluded the failure to properly instruct on one element of a crime was a trial error
requiring a showing of prejudice, not structural error. Id. at ¶ 31. 406 P.3d at 297; see
also Granzer v. State, 2008 WY 118, ¶ 18, 193 P.3d 266, 271-72 (Wyo. 2008); Farrow v.
State, 2019 WY 30, ¶ 12, 437 P.3d 809, 815 (Wyo. 2019). We held that instructing “the
jury on an essential element of an offense is not part of the limited class of fundamental
constitutional errors so intrinsically harmful as to require automatic reversal . . . without
regard” to prejudice. Schmuck, 2017 WY 140, ¶ 31, 406 P.3d at 297 (quoting Granzer,
2008 WY 118, ¶ 15, 193 P.3d at 271).
[¶73] “Prejudice is not presumed[,] and the burden is on the appellant to demonstrate
it.” 4 Merit Energy Co. v. Horr, 2016 WY 3, ¶ 23, 366 P.3d 489, 497 (Wyo. 2016);
Rodriguez v. State, 2022 WY 109, ¶ 26, 516 P.3d 850, 855 (Wyo. 2022) (citing Armajo v.
State, 2020 WY 153, ¶ 33, 478 P.3d 184, 193 (Wyo. 2020)). “To the extent our past
decisions have suggested otherwise, we clarify that the existence of [] error and whether
the error is prejudicial requiring reversal of the conviction are two separate matters.”
Walker III, 2022 WY 158, ¶ 57, 521 P.3d at 985 (citing State v. Escobar, 523 S.W.3d
545, 551 (Mo. Ct. App. 2017)).
4
Federal law differs from Wyoming law and places the burden on the government to prove beyond a
reasonable doubt that the jury instruction error was harmless. United States v. Kahn, 58 F.4th 1308, 1318
(10th Cir. 2023); United States v. Holly, 488 F.3d 1298, 1307 (10th Cir. 2007).
18
[¶74] “Jury 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.” Walker III, 2022 WY 158, ¶ 17, 521 P.3d at 976 (quoting Baker v. State,
2010 WY 6, ¶ 31, 223 P.3d 542, 555 (Wyo. 2010)) (emphasis added); Schuerman, 2022
WY 160, ¶ 7, 522 P.3d at 148. If jury instructions are incorrect, “we recognize the error
and continue to determine whether the defendant was prejudiced after considering the
record as a whole.” Walker III, 2022 WY 158, ¶ 39, 521 P.3d at 980.
[¶75] To show reversible error Mr. Person must establish he had a reasonable
probability of a more favorable outcome if the error had not been made. See, e.g., id. at
¶ 66, 521 P.3d 987; Anderson v. State, 2022 WY 119, ¶ 27, 517 P.3d 583, 592 (Wyo.
2022) (“An error is deemed prejudicial when there is a reasonable probability that, in the
absence of the [error], the verdict would have been more favorable to the appellant.”
(quoting Swett v. State, 2018 WY 144, ¶ 12, 431 P.3d 1135, 1140 (Wyo. 2018)));
Mitchell v. State. 2020 WY 142, ¶ 21, 476 P.3d 224, 232 (Wyo. 2020); Pina v.
Christensen, 2009 WY 64, ¶ 7, 206 P.3d 1298, 1300 (Wyo. 2009) (“To measure the
degree of prejudice, jury instructions are viewed in the light of the entire trial, including
the allegations of the complaint, conflict in the evidence on critical issues[,] and the
arguments of counsel.” (citing City of Cheyenne v. Simpson, 787 P.2d 580, 581-82 (Wyo.
1990))). A number of factors emerge from our cases addressing the impact of an
improper jury instruction, and those factors guide our analysis.
C. Factors
1. Evidence Jury was Misled or Confused
[¶76] Improper or conflicting jury instructions have the potential to mislead or confuse a
jury and thus may weigh in favor of finding prejudice. See Schuerman, 2022 WY 160,
¶ 19, 522 P.3d at 150; Kite, 2018 WY 94, ¶¶ 32-33, 424 P.3d at 264-65. We do not
presume prejudice and instead look to the record as a whole to determine if the jury was
misled or confused. Rodriguez, 2022 WY 109, ¶ 26, 516 P.3d at 855 (citing Armajo, 2020
WY 153, ¶ 33, 478 P.3d at 193); but see Walker III, 2022 WY 158, ¶¶ 68-69, 521 P.3d at
987.
[¶77] In Walker III, the defendant 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. Id.
at ¶ 1, 521 P.3d at 969. The five counts of third-degree sexual abuse of a minor were not
distinguished from one another in the verdict form and the jury convicted the defendant
of Counts I, II, and III. Id. at ¶¶ 13, 15, 521 P.3d at 975. Testimony and closing
arguments clarified that Count I related to the second time the defendant walked into the
victim’s bedroom but muddled Counts II-V and did not clearly distinguish each count
factually. Id. at ¶¶ 66-67, 521 P.3d at 987. The jury’s conviction on only three of the five
counts further raised concern about which incidents the jury convicted the defendant on.
19
Id. We concluded that the defendant established prejudice because there was a reasonable
probability the jury did not reach unanimity on the factual basis of each charge. Id. at
¶¶ 66- 68, 521 P.3d at 987.
[¶78] The Court reached a different result in Morones v. State, where the defendant was
charged with two counts of strangulation of a household member. 2020 WY 85, ¶ 6, 466
P.3d 300, 303 (Wyo. 2020). The jury instructions and verdict form for both counts were
identical, and the jury convicted the defendant on one count of strangulation of a
household member. Id. at ¶ 16, 466 P.3d at 305. The defendant argued on appeal his
conviction lacked sufficient evidence because the verdict form did not distinguish
between the two charges and risked a non-unanimous verdict. Id. We affirmed his
conviction because the parties consistently referred to the events sequentially and the
charges were sufficiently distinguished at trial, reducing the potential for jury confusion
or lack of unanimity. Id. at ¶ 18, 466 P.3d at 306.
[¶79] Mr. Person’s case is more like Morones than Walker III. The issue in Walker III
was the reasonable probability that, based on the record and the number of
indistinguishable counts, the jury did not reach a unanimous verdict on each count. 2022
WY 158, ¶¶ 67-69, 521 P.3d at 987. Reviewing the entire record, Mr. Person cannot
demonstrate the jury was confused or misled simply by the improper general intent
instruction. See Morones, 2020 WY 85, ¶ 6, 466 P.3d at 303; Rodriguez, 2022 WY 109,
¶ 26, 516 P.3d at 855 (citing Armajo, 2020 WY 153, ¶ 33, 478 P.3d at 193).
[¶80] In Schuerman, we held the district court abused its discretion by instructing the
jury that the defendant could be convicted of attempted aggravated assault and battery if
he “knowingly” or “intentionally” attempted to cause serious bodily injury despite the
crime requiring specific intent. 2022 WY 160, ¶ 5, 522 P.3d at 146-47. We did not
presume that the improper “knowingly” instruction misled the jury and caused prejudice.
Instead, we relied on the special verdict form which clearly demonstrated the jury
convicted the defendant under the knowingly option. Id. at ¶ 19, 522 P.3d at 150. We
concluded the jury’s conviction lacked a legally sufficient basis and reversed. Id. at ¶¶ 5,
11, 19, 522 P.3d at 146-147, 149, 150.
[¶81] In Kite, the jury was given a special verdict form that allowed it to convict the
defendant of an attempt crime under several different mens rea standards, when only
specific intent was legally sufficient. 2018 WY 94, ¶¶ 10, 33, 424 P.3d at 259-60, 265.
The jury convicted the defendant and selected “the defendant acted intentionally,
knowingly, and recklessly.” Despite the improper mens rea instruction, we were satisfied
the jury convicted the defendant upon a legally sufficient basis because the special
verdict form reflected that the jury found he acted intentionally. Id. at ¶ 34, 424 P.3d at
265. We required the defendant to show more than simply an incorrect jury instruction to
prove prejudice.
20
[¶82] We have also considered the presence or absence of jury questions when weighing
jury confusion. See, e.g., Morones, 2020 WY 85, ¶ 18, 466 P.3d at 306 (“[T]here was no
unanswered jury question, and it does not appear the jury was confused.”); Gentilini v.
State, 2010 WY 74, ¶ 23, 231 P.3d 1280, 1287 (Wyo. 2010) (“The jury did not ask
questions or otherwise indicate confusion regarding any other instruction.”); Heywood v.
State, 2007 WY 149, ¶ 29, 170 P.3d 1227, 1235 (Wyo. 2007) (“[J]ury questions revealing
confusion or a lack of understanding should be answered.”) abrogated on other grounds;
Vaught v. State, 2016 WY 7, ¶ 37, 366 P.3d 512, 520 (Wyo. 2016) (“The jury’s note
identified nothing defective or confusing about the original instructions, and . . . one
cannot tell whether the jury wanted a clarification of the law or some guidance as to how
the facts in evidence might relate to that law.”). The jury did not ask any questions
relating to the intent element of stalking, suggesting a lack of jury confusion, and making
it less likely Mr. Person would have had a more favorable outcome without Instruction
No. 14.
[¶83] A special verdict form was not used in this case, so unlike in Schuerman, there is
no clear indication the jury was misled or confused. And there were no jury questions that
could suggest confusion. This factor therefore weighs against a finding of prejudice.
2. Correct Instructions Clarifying Jury’s Task
[¶84] The next factor is whether the jury instructions contained a proper instruction that
helped clarify any confusion the improper instruction caused. Duke v. State, 2004 WY
120, ¶ 92, 99 P.3d 928, 955 (Wyo. 2004); Walker v. State, 2012 WY 1, ¶ 11, 267 P.3d
1107, 1111 (Wyo. 2012) (Walker I); Willoughby v. State, 2011 WY 92, ¶ 11, 253 P.3d
157, 161 (Wyo. 2011) (“We have said many times that a trial error may be corrected by
an appropriate curative instruction[.]”). Prejudice from an improper instruction can be
cured if an additional instruction conveys “correct information to the jury in a clear and
concise manner so that it is unlikely that an erroneous impression would remain in the
minds of the jurors.” Duke, 2004 WY 120, ¶¶ 95-96, 99 P.3d at 955 (quoting Christian v.
State, 883 P.2d 376, 379 (Wyo. 1994)); see also Walker III, 2022 WY 158, ¶ 57, 521
P.3d at 985-86 (clarifying that curative instructions are analyzed under the prejudice
prong and cannot cure trial error).
[¶85] The court told the jury, in Instruction No. 2, it must consider all the instructions
and could not ignore any of them:
If in these instructions any rule, direction or idea is
stated in varying ways, no emphasis is intended, and none
must be inferred by you. For that reason, you are not to single
out any certain sentence, or any individual point or
instruction, and ignore the others. You are to consider all the
21
instructions as a whole, and are to regard each in light of all
the others. The order in which the instructions are given has
no significance as to their relative importance.
[¶86] The court also instructed the jury on the importance of the elements of the crime:
“[i]n order to convict the defendant of the crime charged, every material and necessary
element to constitute such a crime must be proved beyond a reasonable doubt”; and “[t]he
burden is always on the State to prove the defendant’s guilt beyond a reasonable doubt as
to each element of the offense.” After the court misinformed the jury in Instruction
No. 14 that stalking is a general intent crime, it correctly instructed the jury, in Instruction
No. 15, that one of the elements of the crime of stalking was “the intent to harass [AP].”
[¶87] In Duke, we addressed a similar issue of conflicting jury instructions. The court
gave erroneous elements instructions on each of two counts of first-degree murder, with
both instructions stating, “If you find from your consideration of all the evidence that any
of these elements has been proved beyond a reasonable doubt, then you should find the
defendant guilty.” Duke, 2004 WY 120, ¶ 92, 99 P.3d at 955 (emphasis added). We held
that, even if the jury was confused or misled by these instructions, two other instructions
clearly articulated it was the State’s burden to prove every element of their case and
sufficiently described the jury’s task. Id. at ¶ 96, 99 P.3d at 955-56 (citing Rigler v. State,
941 P.2d 734, 741 (Wyo. 1997)). The instructions continued, if “you find from your
consideration of all the evidence that each of these elements has not been proved beyond
a reasonable doubt, then you should find the defendant not guilty.” Id. at ¶ 96, 99 P.3d at
955 (emphasis added). We consider jury instructions as a whole, not in isolation, to
determine if they were legally sufficient and adequately instructed the jury. Id. at ¶ 90, 99
P.3d at 954 (citing Black v. State, 2002 WY 72, ¶ 5, 46 P.3d 298, 300 (Wyo. 2002));
Walker III, 2022 WY 158, ¶ 39, 521 P.3d at 980; Daves v. State, 2011 WY 47, ¶ 12, 249
P.3d 250, 255 (Wyo. 2011). Considering the instructions together, we concluded in Duke
that the defendant failed to show the jury was misled into believing he could be convicted
of first-degree murder if any one element was proved beyond a reasonable doubt. 2004
WY 120, ¶ 98, 99 P.3d at 956.
[¶88] In Walker I, the judge verbally instructed the jury improperly on seven occasions
on the burden of proof for a particular element of stalking. Walker I, 2012 WY 1, ¶ 4, 267
P.3d at 1109. The jury was given a conflicting written instruction regarding the element
and a proper elements instruction, and then heard conflicting closing arguments about the
same element. Id. at ¶¶ 11-12, 267 P.3d at 1111-12. We weighed the number of times the
jury was verbally instructed on the issue, the confusing written instruction, and counsel’s
closing statement against the correct elements instruction. We determined the elements
instruction, in that instance, could not, on its own, remedy the confusion and give
adequate legal guidance. Id. at ¶ 11, 267 P.3d at 1111.
22
[¶89] In contrast, although Instruction 14 should not have been given, Instruction 15 was
a clear and concise direction to the jury to determine whether Mr. Person acted with the
intent to harass AP. Considering the clarity of the instruction, it is not probable that the
jury was left with an erroneous impression that Mr. Person need only have acted
voluntarily. In light of Instruction 15, jury confusion in this instance is less likely to have
occurred and this factor weighs against a finding of prejudice.
3. Overwhelming Weight of the Evidence
[¶90] The weight of the evidence against a defendant is a critical factor in the Court’s
determination of prejudice. See, e.g., Walker v. State, 2013 WY 58, ¶¶ 33-34, 302 P.3d
182, 192-93 (Wyo. 2013) (Walker II) (determining evidence against the defendant was
not so overwhelming as to negate a finding of prejudice); Walker III, 2022 WY 158, at
¶¶ 66-68, 521 P.3d at 987; Schmuck, 2017 WY 140, ¶¶ 35-36, 406 P.3d at 298-99;
Klingbeil v. State, 2021 WY 89, ¶ 38 n.3, 492 P.3d 279, 287 n.3 (Wyo. 2021).
[¶91] In Walker II, the jury was incorrectly instructed that it could find the defendant
had the specific intent to harass if he engaged in certain enumerated acts. 2013 WY 58,
¶¶ 16, 33, 302 P.3d at 186, 192. The defendant argued he did not possess the requisite
intent to harass his ex-wife. He asserted his encounter with his ex-wife at Walmart was
accidental, that he was shopping for electronics and only saw the back of her head and
did not know it was her. Id. at ¶ 34, 302 P.3d at 192. This Court disagreed with the State
that the evidence of the defendant’s guilt was overwhelming, and therefore concluded
that Mr. Walker had established the incorrect jury instructions prejudiced him. Id. at ¶ 34,
302 P.3d at 192-93.
[¶92] In Klingbeil, we analyzed whether a doctor’s improper testimony that the victim’s
cause of death was homicide caused prejudice in a first-degree murder trial. 2021 WY 89,
¶ 39, 492 P.3d at 288 (analyzing the same overwhelming evidence factor as used in
improper jury instruction analysis). This Court considered testimony from multiple
witnesses, weighed the defendant’s own conflicting statements in and out of court, and
other unrefuted evidence. Id. at ¶¶ 47-48, 492 P.3d at 289. We determined that it was not
reasonably probable the defendant would have received a more favorable outcome
without the improper evidence and the overwhelming evidence weighed against a finding
of prejudice. Id. at ¶ 49, 492 P.3d at 289.
[¶93] In this case, the jury was required to find Mr. Person intended to harass AP. The
definition of harass means “to engage in a course of conduct . . . directed at a specific
person that the defendant knew or should have known would cause a reasonable
person . . . emotional distress . . . fear for their safety . . . [or] fear for the destruction of
property.” Wyo. Stat. Ann. § 6-2-506 (LexisNexis 2021) (emphasis added).
23
[¶94] The evidence of Mr. Person’s intent was overwhelming. AP recounted at least nine
instances of harassment over the course of the month leading up to the stalking charge.
The evidence showed Mr. Person:
• repeatedly emailed her;
• repeatedly called her obscene names;
• yelled obscenities in front of her at her daughter’s
elementary school;
• told her to live in fear;
• followed her vehicle while wearing a disguise, behavior
that was sufficiently frightening that their children
screamed and called 911;
• told her that their children would have to grow up without
a mom or dad;
• disabled her vehicle;
• destroyed and stole her personal belongings;
• threatened to torture a man he believed she was involved
with; and
• in a telephone conversation with AP’s employer, he
threatened to come to AP’s workplace and kill her.
Mr. Person admitted that AP blocked his number, and he was advised by counsel not to
contact AP, and yet he persisted in this conduct.
[¶95] Even against Mr. Person’s denials and attempts to explain some of his actions, the
evidence was overwhelming that he engaged in a course of conduct that he knew or
should have known would cause AP emotional harm or fear for her safety. There is no
reasonable probability he would have received a more favorable outcome without
Instruction No. 14, which weighs against a finding of prejudice.
4. Closing Arguments
[¶96] Closing arguments alone cannot cure improper jury instructions; however, they are
a factor that can be weighed to assist in analyzing prejudice. Walker I, 2012 WY 1, ¶ 12,
267 P.3d at 1111-12; Walker III, 2022 WY 158, ¶ 65, 521 P.3d at 987 (“[We] have
considered clarifying statements in closing argument when affirming a conviction based
on ambiguous instructions.” (citing Gentilini, 2010 WY 74, ¶ 24, 231 P.3d at 1287-88));
Duke, 2004 WY 120, ¶ 97, 99 P.3d at 956 (holding that the prosecution’s reminder to the
24
jury during closing that the State must prove each element of its case beyond a reasonable
doubt was a factor to consider when determining if the defendant was prejudiced by
improper burden of proof jury instructions). Both parties made clear in closing that intent
was at issue.
[¶97] The State in closing summarized its burden stating “Now, the State needs to prove
that . . . Defendant Kelly Person with the intent to harass [AP] . . . engaged in a course of
conduct reasonably likely to harass[.]” The State then pointed the jury to the improper
general intent instruction but did not overly emphasize it, unlike Walker I, 2012 WY 1,
¶ 11, 267 P.3d at 1111. The State immediately told the jury, “if you’re wondering, well,
jeez did he really try to harass [AP], read that email from the middle of September. It
makes it perfectly clear the state of mind Kelly Person is in[.]” The State made no other
references to general intent.
[¶98] Mr. Person’s attorney also focused on specific intent in closing. Defense counsel
discussed specific intent, saying, “Let’s take a look at a couple of the statements that the
State believes show this mental state, this intent to harass.” He then rehashed several
instances of conduct presented at trial and discussed Mr. Person’s mental state and how
his goal was to have contact with his kids, rather than to intentionally harass his ex-wife.
[¶99] Closing arguments clarified that the issue was whether Mr. Person acted with the
specific intent to harass AP. This factor weighs against a determination of jury confusion
and of prejudice.
D. Weighing the factors together, Mr. Person did not meet his burden to establish
prejudice.
[¶100] Mr. Person did not meet his burden to prove prejudice. Nothing occurred that
would suggest jury confusion, and the elements instruction was a clear and accurate
statement of the law and the jury’s task. There was overwhelming evidence against Mr.
Person, and closing arguments focused on and clarified the specific intent requirement.
Based on the combination of these factors, we conclude that Mr. Person has not shown a
reasonable probability of a more favorable outcome absent Instruction No. 14.
CONCLUSION
[¶101] Mr. Person was not denied his right to a speedy trial. Although the district court
abused its discretion by giving Instruction No. 14, Mr. Person failed to meet his burden to
establish prejudice. Affirmed.
25
BOOMGAARDEN, Justice, concurring in part and dissenting in part, in which FENN,
Justice, joins.
[¶102] I concur with the majority opinion’s holding in Part I. However, I respectfully
dissent from Part II because Mr. Person was prejudiced when the district court misled the
jury by giving a general intent instruction for the specific intent crime of stalking.
[¶103] I agree with the majority that the district court’s instruction on general intent is a
trial error that “must be prejudicial to constitute reversible error.” Schuerman v. State,
2022 WY 160, ¶ 7, 522 P.3d 145, 148 (Wyo. 2022) (quoting Schmuck v. State, 2017 WY
140, ¶ 45, 406 P.3d 286, 301 (Wyo. 2017)); Granzer v. State, 2008 WY 118, ¶18, 193
P.3d 266, 271–72 (Wyo. 2008) (“[A] trial court’s failure to instruct on an element of a
crime is not a structural or fundamental error, but rather a trial error.”). Where I diverge
from the majority is the prejudice standard to be applied given the nature of the error in
this case. The majority discerns, for the first time, a one-size-fits-all multi-factor
prejudice standard for cases involving erroneous jury instructions. I believe that
approach is misguided and, for the following reasons, runs afoul of our precedent and the
sanctity of the jury’s role as the finder of fact. See e.g., Schuerman, ¶ 7, 522 P.3d at 147–
48; Walker v. State, 2022 WY 158, ¶¶ 17, 55, 521 P.3d 967, 976, 985 (Wyo. 2022)
(Walker III); Walker v. State, 2013 WY 58, ¶¶ 33–34, 302 P.3d 182, 192 (Wyo. 2013)
(Walker II); Walker v. State, 2012 WY 1, ¶¶ 10–11, 267 P.3d 1107, 1111 (Wyo. 2012)
(Walker I); Giles v. State, 2004 WY 101, ¶ 14, 96 P.3d 1027, 1031 (Wyo. 2004).
[¶104] It is well established “the concept of prejudice is defined in different ways
depending on the context in which it appears.” Weaver v. Massachusetts, 137 S. Ct.
1899, 1911, 198 L.Ed.2d 420 (2017). We examine prejudice in this case in the context of
an error whereby the trial court gave two mutually exclusive intent instructions that we
must, on the record presented, presume the jury followed. See Walker III, ¶ 69, 521 P.3d
at 987; Walker II, ¶ 34, 302 P.3d at 192–93.
[¶105] As the majority acknowledged, “[p]roper jury instructions are a critical component
of our criminal justice system.” Supra, ¶ 62. This Court has explained “[t]he function of
jury instructions is to afford the jury with a ‘foundational legal understanding to enable a
reasoned application of the facts to the law.’” Andersen v. State, 2014 WY 88, ¶ 14, 330
P.3d 256, 260 (Wyo. 2014) (citation omitted); see also Dennis v. State, 2013 WY 67,
¶ 40, 302 P.3d 890, 898 (Wyo. 2013) (“[J]uries should be instructed as to the appropriate
intent that is an element of the particular crime; it is more important that the jury
understand what exactly they [are required] to determine[,]” than to attempt to distinguish
between specific and general intent. (quoting Keats v. State, 2003 WY 19, ¶ 13, 64 P.3d
104, 108 (Wyo.2003))). “Because the purpose of jury instructions is to provide guidance
on the applicable law, prejudice will result when the instructions confuse or mislead the
jury.” Walker III, ¶ 55, 521 P.3d at 985; Schuerman, ¶ 7, 522 P.3d at 148 (quoting
Neidlinger v. State, ¶¶ 41–42, 482 P.3d 337, 349 (Wyo. 2021)); Walker II, ¶¶ 33–34, 302
26
P.3d at 192; Walker I, ¶¶ 10–11, 267 P.3d at 1111; see also Giles, ¶ 14, 96 P.3d at 1031
(“Prejudice 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.”).
[¶106] The root inquiry in the prejudice analysis is therefore whether the instructions,
when viewed as a whole, and in the context of the entire trial, confused or misled the
jury. See e.g., Schuerman, ¶ 7, 522 P.3d at 147–48; Walker III, ¶¶ 17, 57, 521 P.3d at
976, 985; Walker II, ¶¶ 33–34, 302 P.3d at 192; Walker I, ¶¶ 10–11, 267 P.3d at 1111;
Giles, ¶ 14, 96 P.3d at 1031. To help determine whether the instructions confused or
misled the jury, we have considered, among other circumstances in the trial record,
clarifying instructions, opening and closing arguments, and the evidence presented. See
e.g., Walker III, ¶¶66–69, 521 P.3d at 987 (considering the state’s evidence and closing
arguments to determine whether the jury was confused or misled); Walker II, ¶ 34, 302
P.3d at 192–93 (considering the defendant’s testimony to find the state’s evidence was
not “overwhelming” and the jury was confused by the instructions); Duke v. State, 2004
WY 120, ¶¶ 95–98, 99 P.3d 928, 955–56 (Wyo. 2004) (considering whether a jury was
confused or misled by an erroneous instruction when other instructions “clearly described
the jury’s task”).
[¶107] Within that framework, the ultimate test is “whether the instructions leave no
doubt as to the circumstances under which the crime can be found to have been
committed.” E.g., Kite v. State, 2018 WY 94, ¶ 33, 424 P.3d 255, 265 (Wyo. 2018)
(quoting Blevins v. State, 2017 WY 43, ¶ 26, 393 P.3d 1249, 1255 (Wyo. 2017)); Walker
II, ¶ 31, 302 P.3d at 191 (quoting Burnett v. State, 2011 WY 169, ¶ 14, 267 P.3d 1083,
1087 (Wyo. 2011)); Walker I, ¶ 10, 267 P.3d at 1111 (citation omitted); see also Dennis,
¶ 36, 302 P.3d at 897. It is this ultimate consideration the majority’s factor test sidesteps.
[¶108] I would conclude Instruction Nos. 14 and 15, when read together, cannot purge
any doubt the jury may have convicted Mr. Person of stalking based on general intent.
See Keats, ¶ 13, 64 P.3d at 108 (citation omitted). In applying Instruction No. 14, the
jury had to determine whether there was “a connection between the act or conduct and
general criminal intent,” being told that general criminal intent, for the charged crime of
“Stalking,” “does not require any intention to violate the law or any intention to do a
further act or achieve any further consequence, result, harm or injury from such act.”
Thus, in making this determination, the jury could find Mr. Person guilty regardless of
whether he intended to achieve the consequence or result of harassing AP. Yet when
applying Instruction No. 15, the jury could convict Mr. Person only if it determined the
State proved, beyond a reasonable doubt, that Mr. Person specifically intended to harass
AP. The jury was instructed it could not ignore any of the instructions given. Absent any
evidence to the contrary, we must presume the jury did what it was told. Fox v. State,
2020 WY 88, ¶ 13, 467 P.3d 140, 143 (Wyo. 2020). Viewing the instructions as a whole,
in the context of the entire trial, Instruction No. 14 irreconcilably obfuscated the intent to
27
harass element in Instruction No. 15 because it allowed the jury to convict Mr. Person
based on a less culpable mental state. See Kite, ¶¶ 31–33, 424 P.3d at 264–65 (discussing
the difference between general and specific intent).
[¶109] In considering the trial record, the court’s and prosecutor’s statements of the law
to the jury amplified the erroneous general intent instruction, creating more doubt
whether the jury convicted Mr. Person based on the proper principles of law. See
Andersen, ¶ 19, 330 P.3d at 261–62 (finding the prosecutor’s misstatements of the law in
closing “amplified the erroneous instructions, which no doubt further ‘confused or misled
the jury with respect to the proper principles of law’”). As the majority recognized, the
court abused its discretion by misstating the law. The State then exacerbated that
misstatement in its closing argument by drawing the jury’s attention to the intent to
harass element and referring the jury specifically to Instruction No. 14—the general
intent instruction.
[¶110] There are cases where the trial record has removed similar doubt. See Kite, ¶¶ 33–
34, 424 P.3d at 265; Schuerman, ¶ 19, 522 P.3d at 150. However, the majority
misapplies these cases to hold the jury was not misled by the erroneous general intent
instruction. Supra, ¶¶ 80–81, 83. In Kite, the defendant was convicted of a specific
intent crime after the jury was offered an instruction stating the defendant could be
convicted for acting with any three states of mind—“[i]ntentionally [or] knowingly [or]
recklessly[.]” Kite, ¶¶ 18, 34, 424 P.3d at 261–62, 265. We looked at the instructions as
a whole and determined the jury was provided the “correct” state-of-mind option—
“intentionally”—and that “the verdict form specifically asked the jury whether Mr. Kite’s
actions were [intentional] to which the jury responded in the affirmative.” Id. ¶ 33, 424
P.3d at 265. We then held the instructions were adequate because “[they] gave the jury a
correct and legally sufficient basis on which to convict Mr. Kite[.]” Id. ¶ 34, 424 P.3d at
265. Thus, in Kite the intent instruction and special verdict form, together, left no doubt
as to the circumstances under which the defendant’s crime can be found to have been
committed. See id. ¶¶ 33–34, 424 P.3d at 265.
[¶111] In Schuerman, the jury was provided an erroneous general intent instruction for a
crime requiring specific intent. Schuerman, ¶ 19, 522 P.3d at 150. The jury was also
given a special verdict form allowing it to determine if the defendant acted
“intentionally[,]” “knowingly[,]” or both. Id. The jury found the defendant acted
“knowingly” but not “intentionally[.]” Id. Thus, reading the intent instruction and
special verdict form together in Schuerman, we were unable to conclude the jury
convicted the defendant on “a correct and legally sufficient basis[.]” Id. (citation
omitted). The defendant’s conviction was subsequently reversed. Id.
[¶112] Unlike Kite and Schuerman, the verdict form used in Mr. Person’s trial was
general, not specific. Because it required the jury only to state whether it found Mr.
Person not guilty or guilty “as to the crime of Stalking,” and did not include any special
28
interrogatories to indicate whether the jury found Mr. Person had the requisite specific
intent to harass AP, the verdict form offers nothing in the way of a legally sufficient basis
to uphold Mr. Person’s conviction. We note the jury asked the court two questions
during deliberations but neither concerned the jury instructions. Consequently, we do not
know whether the jury convicted Mr. Person of stalking as a general intent crime—a
crime that does not exist—or if it convicted him on the basis of proof he intended to
harass AP.
[¶113] The majority’s prejudice analysis hinges on emphasizing the weight of the State’s
evidence, which it describes as a “critical factor,” to assert that the erroneous instruction
did not prejudice Mr. Person. Supra, ¶ 90. However, none of the cases it cites supports
the proposition that the weight of the state’s evidence is a “critical factor” relevant in
determining prejudice based on an erroneous intent instruction. See Walker III, ¶¶ 66–68,
521 P.3d at 987 (comparing the victim’s testimony and state’s closing arguments to the
charged counts against the defendant, not to consider the weight of the evidence, but only
to determine whether the jury could have reached a unanimous conclusion on each
count); Schmuck, ¶¶ 35–37, 406 P.3d at 298–99 (considering the defendant’s evidence
and counsel’s statements at opening and closing arguments, not to consider the weight of
the evidence, but only to determine whether the defendant was prejudiced from the
failure of the district court to provide the jury with a sudden heat of passion instruction);
Klingbeil v. State, 2021 WY 89, ¶ 38 n.3, 492 P.3d 279, 287 n.3 (Wyo. 2021)
(considering only whether the admission of evidence under W.R.E. 404(b) was
prejudicial).
[¶114] The majority also relies on Walker II. Supra, ¶ 90–91. There, this Court stated it
did not agree “the evidence of Appellant’s guilt was ‘overwhelming[.]’” Walker II, ¶ 34,
302 P.3d at 192. Instead of basing our holding on the weight of the evidence, we stated:
More fundamentally, however, considering the fact that Jury
Instruction No. 10 effectively relieved the State of the
obligation to prove that Appellant acted with intent, we are
unable to conclude that the jury instructions left “no
doubt as to the circumstances under which the crime can
be found to have been committed.” Burnett, ¶ 14, 267 P.3d
at 1087. Rather, we conclude that the instructions likely
“confused or misled the jury with respect to the proper
principles of law.” [Walker I], ¶ 6, 267 P.3d at 1110.
Accordingly, we find that Appellant was materially
prejudiced[.]
Walker II, ¶ 34, 302 P.3d at 192–93 (emphasis added).
29
[¶115] The majority ultimately does not explain why there is “no doubt as to the
circumstances under which the crime can be found to have been committed.” Id. (citation
omitted). It instead applies a multi-factor analysis, with emphasis on the weight of the
State’s evidence, to overlook the manifest doubt created by the erroneous general intent
instruction given in this case. Here, nothing about the weight of the State’s evidence
goes to how the jury dealt with the irreconcilable instructions on the law of intent. The
majority “cannot pretend to know what occurred in the jury room” without making
factual findings on the State’s evidence to presume the jury did not convict Mr. Person of
stalking based on general intent. Walker III, ¶ 69, 521 P.3d at 987.
[¶116] “The sanctity of the jury’s role as fact-finder has always been honored in this
State.” Snow v. State, 2009 WY 117, ¶ 29, 216 P.3d 505, 514 (Wyo. 2009). We have
“consistently emphasized the principle that the jury—not the trial court and not the
attorneys—resolves factual issues.” Widdison v. State, 2018 WY 18, ¶ 21, 410 P.3d
1205, 1213 (Wyo. 2018) (citations omitted). Further, “[t]he aim of the guarantee of the
right to trial by jury is to preserve . . . the concept that issues of law are to be resolved by
the court and issues of fact are to be determined by the jury under appropriate instructions
by the court[.]” Id. (quoting Snow, ¶¶ 29–30, 216 P.3d at 514). Thus, even if we agreed
about the relative strength of the State’s evidence to support Mr. Person’s conviction, to
consider the weight of that evidence under these circumstances would impermissibly
supplant our knowledge of the law and judgment for that of the jury. See Andersen, ¶ 14,
330 P.3d at 260; Widdison, ¶ 21, 410 P.3d at 1213; Snow, ¶¶ 28–30, 216 P.3d at 514.
[¶117] For the reasons discussed, the intent instructions, viewed as whole in the context
of the entire trial, “misled the jury with respect to the proper principles of law.” Walker
II, ¶ 34, 302 P.3d at 192–93 (quoting Walker I, ¶ 6, 267 P.3d at 1110); Walker III, ¶ 68,
521 P.3d at 987 (“It is entirely possible that a jury may not feel confused, especially if it
has been misled by the instructions it was given.” (emphasis in original)). Most
important, the record in this case renders it impossible for us to conclude there is “no
doubt as to the circumstances under which [Stalking] can be found to have been
committed.” Walker II, ¶ 34, 302 P.3d at 192 (citation omitted). Accordingly, I conclude
Mr. Person was prejudiced by the erroneous general intent instruction and would reverse
and remand for a new trial.
30