Jahnke v. State

THOMAS, Justice.

The critical question to be resolved in this case is whether voluntary manslaughter is a lesser-included offense when the charged offense is murder in the first degree; more specifically, whether the offense of aiding and abetting voluntary manslaughter is a lesser-included offense of aiding and abetting first degree murder. Other issues presented relate to the denial of the suppression of the teenage defendant’s statement to sheriffs officers; the constitutionality of vesting discretion in the prosecuting attorney to determine whether charges should be filed in juvenile court or in the district court where the defendant is treated as an adult; and the legality of the sentence imposed when appraised in the light of the state constitution.

Deborah Ann Jahnke was charged by Information with aiding and abetting her brother in the first degree murder of their father, and with conspiracy to commit first degree murder.1 A motion to transfer the case from district court, where Deborah Jahnke was charged as an adult, to juvenile court was denied. At her trial the district *914court admitted her statement to the officers of the sheriffs department into evidence and instructed on the lesser-included offense of aiding and abetting voluntary manslaughter. After her conviction of aiding and abetting voluntary manslaughter and her acquittal of other charges the district court sentenced her to serve not less than three nor more than eight years in the Women’s Correctional Center. We affirm the district court.

In her brief in this appeal Deborah Jahnke states the issues as follows:

“I.

“THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GIVING INSTRUCTIONS NUMBERED 13, 21, and 22, BY WHICH THE JURY WAS INSTRUCTED THAT THEY COULD FIND THE APPELLANT GUILTY OF THE LESSER INCLUDED OFFENSE OF AIDING AND ABETTING VOLUNTARY MANSLAUGHTER UPON A SUDDEN HEAT OF PASSION.

“II.

“THE TRIAL COURT COMMITTED ERROR IN DENYING APPELLANT’S MOTION TO SUPPRESS HER STATEMENT AND IN PERMITTING HER STATEMENT TO BE USED AGAINST HER AT TRIAL.

“HI.

“THE DISCRETION VESTED IN THE DISTRICT ATTORNEY BY SECTION 14-6-203(c), W.S. (1977) (CUM.SUPP. 1983), WHICH PERMITTED THE APPELLANT, A JUVENILE, TO BE CHARGED AS AN ADULT IN THE DISTRICT COURT IS UNCONSTITUTIONAL ON ITS FACE.

“(a) Section 14-6-203(c) W.S. (1977) (Cum.Supp.1983) violates the constitutional doctrine of separation of powers by placing judicial power in the hands of an executive officer as proscribed by Art. 2 Section 1 of the Wyoming Constitution.

“(b) Section 14-6-203(c) W.S. (1977) (Cum.Supp.1983) violates Appellant’s right to due process of law as guaranteed by the Fifth Amendment to the U.S. Constitution and Art. 1 Section 6 of the Wyoming Constitution.

“(c) The discretion vested in the District Attorney by Section 14-6-203(c) W.S. (1977) (Cum.Supp.1983) deprived Appellant of equal protection of the law as guaranteed by the 14th Amendment to the U.S. Constitution and by Art. 1 Section 2 of the Wyoming Constitution.

“IV.

“THE SENTENCE IMPOSED UPON APPELLANT VIOLATED ART. I SECTION 15 OF THE WYOMING CONSTITUTION.”

The brief of the State of Wyoming rephrases the same issues in this manner:

“I. WAS IT ERROR FOR THE TRIAL COURT TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF MANSLAUGHTER?

“II. WAS IT ERROR FOR THE TRIAL COURT TO DENY APPELLANT’S MOTION TO SUPPRESS HER STATEMENTS OR CONFESSIONS?

“HI. DOES SECTION 14-6-203(c) PASS MUSTER UNDER BOTH STATE AND FEDERAL CONSTITUTIONAL PROVISIONS HAVING TO DO WITH THE SEPARATION OF POWERS, EQUAL PROTECTION OF THE LAW AND DUE PROCESS OF LAW?

“IV. DOES APPELLANT’S SENTENCE VIOLATE ARTICLE 1, SECTION 15 OF THE WYOMING CONSTITUTION?”

The facts surrounding the killing of the Jahnke children’s father have been reviewed in the case of Jahnke v. State, Wyo., 682 P.2d 991 (1984). They can be reiterated briefly. Following years of both physical and psychological abuse of the children by the father, matters came to a head on the evening of November 16, 1982. After an altercation between the deceased father, Richard Chester Jahnke, and Deborah Jahnke’s brother, Richard John Jahnke, *915which included the father’s striking the brother with his fists, the Jahnke children’s parents went out to dinner. While they were gone Richard made elaborate preparations for confronting his father. These preparations included loading firearms and placing them at several “back-up” locations throughout the house; putting the family pets in the basement for their safety; and waiting in a darkened garage with a shotgun loaded with slugs for the parents to return. When the parents did return Richard Jahnke shot six times through the garage door, with four of the slugs striking the father and killing him almost instantly.

Deborah Ann Jahnke’s role in these events began on that evening when she observed the assault upon her brother, Richard, and heard her father tell her brother, “We’re going to get rid of you, we don’t know how we’re going to, but we’re going to get rid of you.” Deborah Jahnke stated that where her brother went she also went, but she was rebuffed by the father, who told her, “Shut up, you slut” and sent her back into her own room. From her bedroom Deborah Jahnke heard the events of still another verbal and physical assault upon the brother. Just before the parents left, the father returned to the house and shoved the brother, Richard, against the wall, stating “I’m really disgusted with the shit you turned out to be. I don’t want you to be here when I get back.”

Deborah Jahnke watched as her brother changed the ammunition in a modified .12 gauge shotgun, the death weapon, from what their father referred to as “candy-cane mix” to the fatal slugs. While the brother, Richard, was placing loaded weapons in “back-up” positions in the family room and the basement, he told Deborah to get her shoes on because he wanted to get her out of the house before the parents returned. Deborah put her shoes on, but she made no further preparations to leave because she began experiencing feelings of guilt about leaving her brother there alone. She decided not to leave but that instead she would stay to help her brother.

After this decision Richard demonstrated the use of two of the weapons, a 30.06 rifle in the basement and an M-l carbine, to Deborah. Deborah explained that the M-l carbine was selected for her to use because it kicked less than the other weapons. Other preparations made by the Jahnke children included turning on a number of lights in the house for the purpose of creating temporary night blindness for the father if he was able to enter the house; shutting off most of the exterior lights with the exception of those which illuminated the driveway outside of the garage; and placing the family pets in the basement to prevent them from being harmed or getting in the way. These latter two steps were accomplished at Deborah’s suggestion. Deborah stated that she perceived her role as a type of backup in the event something went wrong.

After Richard had stationed himself at his place of waiting in the garage, appellant on one occasion went into the garage and was escorted back into the family room by her brother, who told her to stay away. As he was returning to the garage Deborah asked Richard whether he intended to kill their mother also. Richard testified that Deborah was upset when he told her, “no,” and she asked him to kill “Mom.”

The parents returned at approximately 6:15 p.m., and as the father approached the garage from his parked vehicle Richard fired the fatal shots. In the statement that she furnished, Deborah said that she knew Richard was angry and would do something. She thought he would be active, but she did not expect “that he would just, you know, blow my father away.” She heard the shots from the garage and wondered whether she should pick up the M-l carbine. While trying to decide whether to grab the weapon, Deborah heard footsteps and her brother came down the hall from the garage area. Deborah ascertained that her mother was not shot, and went into her room, shut off her stereo, obtained a coat and book, and then fled with Richard through an open window from the master bedroom. They separated soon after they *916left the house, and she went out into the hills and plains adjacent to their home.

After fleeing the house, Deborah proceeded toward a shopping mall, and from there to the area of a roller rink, where she spoke with two of her friends. She then went to the clubhouse of a large apartment complex, where she spent the night. When she awoke the next morning she borrowed a newspaper from the doorway of one of the apartments. She read the article about the events of the prior evening, replaced the newspaper, and went from the apartment complex to a nearby park which she was seen entering at about 6:30 a.m. Then Deborah was picked up by a deputy sheriff, and she agreed to accompany the sheriffs officers to their office to talk.

Two days after the father’s death, on November 18,1982, a formal complaint was filed charging Deborah Jahnke with aiding and abetting her brother, Richard, in the commission of first degree murder and with conspiracy to commit first degree murder. She appeared before a county court judge and waived her right to a preliminary hearing, and she was bound over to the district court. On December 1,1982, the Information, charging the same offenses as those included in the complaint, was filed in the district court. Deborah Jahnke was arraigned on December 3, 1982, at which time she entered pleas of not guilty to both counts of the Information. A Motion to Transfer to Juvenile Court System was filed on her behalf, and following a hearing this motion was denied on February 23, 1983. Deborah Jahnke also presented a motion to suppress her statements, which was denied after the court found those statements to have been obtained after a knowing, intelligent and voluntary waiver of her right to remain silent.

The trial in this case began on March 7, 1983, three weeks after the trial in the case of the brother, Richard. Following the close of the evidence the district court did instruct the jury on the lesser-included offense of aiding and abetting voluntary manslaughter. On March 10, 1983, the jury returned its verdict, finding the appellant guilty of the offense of aiding and abetting voluntary manslaughter and acquitting her of the other charges. The Judgment and Sentence on that verdict was entered on May 23, 1983. Deborah Jahnke was sentenced to serve not less than three nor more than eight years in the Women’s Correctional Center for her participation in the patricide. Additional facts essential to the justification of our disposition of the appeal will be presented in connection with the discussion of the several issues.

The firs.t issue to be addressed is the propriety of the trial court’s instructions to the jury with respect to the lesser-included offense of aiding and abetting voluntary manslaughter. Those instructions were:

“INSTRUCTION NO. 13

“If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the offense charged, she may, however, be found guilty of any lesser offense, the commission of which is necessarily included in the offense charged, if the evidence is sufficient to establish her guilt of such lesser offense beyond a reasonable doubt.”

“The offense of aiding and abetting first degree murder with which the defendant is charged, includes the lesser offense of aiding and abetting second degree murder and also includes the lesser offense of aiding and abetting voluntary manslaughter.”

“INSTRUCTION NO. 21

“Pertinent portions of the Wyoming statutes provide as follows:

“ ‘Whoever unlawfully kills any human being without malice, expressed or implied, ... voluntarily, upon a sudden heat of passion ... is guilty of manslaughter’.”

“INSTRUCTION NO. 22

“The necessary elements of voluntary manslaughter are:

*917“1. The crime occurred within the county of Laramie on or about the date of November 16, 1983; and

“2. The principal killed a human being; and

“3. The principal acted voluntarily

“4. Upon a sudden heat of passion.”

The first aspect of Deborah Jahnke’s argument is that voluntary manslaughter is not a lesser-included offense with respect to the charge of murder in the first degree. Traditionally, with the exception of a charge of felony murder,2 voluntary manslaughter has been considered a lesser-included offense to the charge of murder. Stevenson v. United States, 162 U.S. 313, 16 S.Ct. 839, 40 L.Ed. 980 (1896); State v. Selig, Wyo., 635 P.2d 786; Searles v. State, Wyo., 589 P.2d 386 (1979); State v, Helton, 73 Wyo. 92, 276 P.2d 434 (1954); Eagan v. State, 58 Wyo. 167, 128 P.2d 215 (1942); Espy v. State, 54 Wyo. 291, 92 P.2d 549 (1939); State v. Lantzer, 55 Wyo. 230, 99 P.2d 73 (1940); Flory v. State, 40 Wyo. 184, 276 P. 458 (1929); State v. Sorrentino, 31 Wyo. 129, 224 P. 420, 34 A.L.R. 1477 (1924), reh. denied 31 Wyo. 499, 228 P. 283, 34 A.L.R. 1487 (1924); Meldrum v. State, 23 Wyo. 12,146 P. 596 (1915); Nicholson v. State, 18 Wyo. 298, 106 P. 929 (1910); and Cook v. Territory, 3 Wyo. 110, 4 P. 887 (1884). See also Evanson v. State, Wyo., 546 P.2d 412 (1976); State v. Gonzales, 46 Wyo. 52, 23 P.2d 354 (1933); Ivey v. State, 24 Wyo. 1, 154 P. 589 (1916); and Brantley v. State, 9 Wyo. 102, 61 P. 139 (1900). In Brantley v. State, supra, 61 P. at 139-140, the relationship between the several degrees of homicide was described in this way:

“ * * * [I]t is evident that in charging an intent to commit murder in the first degree there is necessarily included a charge of intent to commit murder in the second degree and voluntary manslaughter.

“Under our statute murder in the first degree, murder in the second degree and manslaughter each involves a felonious killing; to constitute the first it must be done with premeditated malice; the second is a killing with malice, but with the element of premeditation omitted, while in the case of voluntary manslaughter there is an intentional killing but without any element of malice or premeditation. It is therefore evident, we think, that the intent to commit murder in the second degree is specifically and sufficiently charged in the information and proof of such intent fitted the allegation. And so of intent to commit manslaughter. Proof can not be made of assault with intent to commit murder in the first degree which does not at the same time furnish appropriate and sufficient evidence to sustain a verdict for the lower, or included offenses of assault with intent to commit murder in the second degree and manslaughter.”

Despite this impressive historical array, Deborah Jahnke contends that a proper analysis of our recent decisions in Balsley v. State, Wyo., 668 P.2d 1324 (1983); Stamper v. State, Wyo., 662 P.2d 82 (1983); and State v. Selig, Wyo., 635 P.2d 786 (1981), teaches that voluntary manslaughter cannot be a lesser-included offense when the charge is murder. She argues that the offense of voluntary manslaughter contains elements not found in the offense of first degree murder. The element which Deborah Jahnke contends is not included is that the killing must be “upon a sudden heat of passion” in order for voluntary manslaughter to be found. She compares the elements of the offense of voluntary manslaughter as given by the court with the elements of first degree murder and then applies the rules of the cases she relies upon to the end that there is a different and additional element.

In State v. Selig, supra, 635 P.2d at 790, we quoted the test for instructing on a lesser-included offense from United States v. Chapman, 615 F.2d 1294-1299 (10th Cir. *9181980), cert. denied 446 U.S. 967, 100 S.Ct. 2947, 64 L.Ed.2d 827 (1980) as follows:

“This Court has held that a defendant is entitled to a lesser-included offense instruction when the following five elements are present: (1) a proper request is made; (2) the elements of the lesser offense are identical to part of the elements of the greater offense; (3) there is some evidence that would justify conviction of the lesser offense; (4) the proof on the element or elements differentiating the two crimes is sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser-included offense, and (5) there is mutuality, i.e., a charge may be demanded by either the United States or the defense. * * * ”

Deborah Jahnke argues that in applying that test in her case three of the five factors are missing, but her particular focus is upon her argument that the second factor is not satisfied in this instance. She urges that the elements of the lesser offense are not identical to part of the elements of the greater offense because as voluntary manslaughter is defined the homicide must be “without malice” and “upon a sudden heat of passion,” which elements are not present in the charged offense of murder in the first degree. Deborah Jahnke then points to the following language in Balsley v. State, supra, 668 P.2d at 1329:

“In summary, we hold that a crime described by statute may not be necessarily included within another statutory offense unless all of the elements within the claimed lesser offense are to be found in the greater, and unless the greater offense cannot be committed without also committing the putative lesser offense.”

Rule 32(c), W.R.Cr.P., justifies the giving of lesser-included offense instructions at trial. It provides:

“Conviction of lesser offense. — The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense.”

This rule is identical to Rule 31(c), F.R. Cr.P., and federal eases which interpret the counterpart of our rule are highly persuasive. Balsley v. State, supra; Richmond v. State, Wyo., 554 P.2d 1217 (1976); and Evanson v. State, Wyo., 546 P.2d 412 (1976). The basic principles governing the giving of lesser-included offense instructions under the federal rule have been articulated by the Supreme Court of the United States in this way:

“ * * * Rule 31(c) of the Federal Rules of Criminal Procedure provides in relevant part, that the ‘defendant may be found guilty of an offense necessarily included in the offense charged.’ Thus, ‘[i]n a case where some of the elements of the crime charged themselves constitute a lesser crime, the defendant, if the evidence justifie[s] it * 4 * [is] entitled to an instruction which would permit a finding of guilt of the lesser offense.’ Berra v. United States, supra [351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 1013]. See Stevenson v. United States, 162 U.S. 313, 16 S.Ct. 839, 40 L.Ed. 980. But a lesser-offense charge is not proper where, on the evidence presented, the factual issues to be resolved by the jury are the same as to both the lesser and greater offenses. Berra v. United States, supra; Sparf v. United States, 156 U.S. 51, 63-64, 15 S.Ct. 273, 277-278, 39 L.Ed. 343. In other words, the lesser offense must be included within but not, on the facts of the case, be completely encompassed by the greater. A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense. Berra v. United States, supra; Sparf v. United States, supra, 156 U.S. at 63-64, 15 S.Ct. at 277-278. * * * ” Sansone v. United States, 380 U.S. 343, 349-350, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965).

The fallacy in Deborah Jahnke’s argument that it was error to instruct on the *919lesser-included offense is the assumption that killing “upon a sudden heat of passion” is truly an element of the offense of voluntary manslaughter. The statute in effect at the time of the homicide in this case adopted the common-law definition of the crime of voluntary manslaughter by declaring in pertinent portion that “[wjhoe-ver unlawfully kills any human being without malice, express or implied, * * * voluntarily, upon a sudden heat of passion * * * is guilty of manslaughter * * Section 6-4-107, W.S.1977; State v. Lantzer, supra. The common-law offense of manslaughter was distinguished from the common-law crime of murder by the absence of malice in the commission of the homicide. 4 W. Blackstone, Commentaries *190-201; 2 Wharton’s Criminal Law § 151, p. 223 (14th ed. 1979). At common law all voluntary homicides were presumed to be malicious unless there was a showing of adequate provocation to mitigate to voluntary manslaughter what otherwise would be murder. 4 W. Blackstone, supra, at *201; 1 Hale, Pleas of the Crown 455 (1st Am. ed. 1847); and 2 Wharton’s Criminal Law § 153, p. 237. Accordingly, voluntary manslaughter was deemed to be a lesser-included offense of murder at common law. 1 Hale, supra, at 449; 2 W. Hawkins, Pleas of the Crown 619-620 (8th ed. 1824); and 1 Bishop, Criminal Law § 795, p. 567 (9th ed. 1923). The relationship between murder and manslaughter was summarized by Lord Hale as follows:

“Murder and manslaughter differ not in kind or nature of the offense, only in the degree, the former being the killing of a man of malice prepense, the latter upon sudden provocation and falling out.” 1 Hale, supra, at 449.

Following these precepts of the common law, the phrase “upon a sudden heat of passion” as used in § 6-4-107, W.S.1977, is descriptive of the provocation or lack of malice which makes a homicide manslaughter instead of murder. In State v. Helton, supra, 276 P.2d at 442, this court stated:

“Our laws recognize an intermediate crime lying someplace between the excusable, justifiable or privileged killing of a human being, and the unlawful taking of a life with malice. This is an unlawful type of voluntary homicide which is not legally excused, privileged or justified, but wherein there is an absence of express legal, implied, or constructive malice. So we find in our law, that the intentional (i.e. voluntary) doing of the wrongful act, ‘upon a sudden heat of passion’, although completely free of express, implied, constructive or legal malice, but committed without legal excuse, privilege or justification, is a punishable crime which we call voluntary manslaughter. This simply recognizes that there may be circumstances surrounding a killing which cannot be justified under the law of self-defense, and while not producing that degree of mental disturbance or aberration of the mind which is necessary in law to excuse the homicide, still leaves the mind devoid of that wicked, evil and unlawful purpose, or of that wilful disregard of the rights of others which is implied in the term ‘malice’. Such circumstances mitigate or extenuate the act and make the homicide a crime of lesser degree. The ‘sudden heat of passion’ contemplated by our voluntary manslaughter statute is descriptive of just such a state of mind, and it may occur from any emotional excitement of such intensity that it temporarily obscures reason, or leaves the mind bereft of reason.”

We conclude that the descriptive phrase in the statute is simply a way of saying that the element of malice required for murder in the second degree and also murder in the first degree is not required. Consequently it is not a true element of the offense of voluntary manslaughter, and we reaffirm prior decisions that voluntary manslaughter is a lesser-included offense with respect to charges of murder in the first degree and murder in the second degree under the statutes which were in effect at the time of this homicide.

Deborah Jahnke also invokes the third factor of the test in United States v. *920Chapman, supra, as adopted by this court in State v. Selig, supra. She correctly asserts that there must be some evidence which would permit the jury rationally to find the accused guilty of the lesser offense and not guilty of the greater offense before a lesser-included offense instruction is appropriate. Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973); Stamper v. State, supra, 662 P.2d at 93; Jones v. State, Wyo., 580 P.2d 1150 (1978); State v. Goettina, 61 Wyo. 420,158 P.2d 865 (1945); and State v. Gonzales, supra. We have uniformly held that “the trial court should only give such instructions as arise from the evidence and that when the evidence shows that the defendant is either guilty or not guilty of the higher grade of the offense, the court is not required to instruct on the lesser offense.” Oldham v. State, Wyo., 534 P.2d 107, 109 (1975). See also Stamper v. State, supra, 662 P.2d at 92; State v. Selig, supra, 635 P.2d at 791; Neilson v. State, Wyo., 599 P.2d 1326 (1979), cert. denied 444 U.S. 1079, 100 S.Ct. 1031, 62 L.Ed.2d 763 (1980); and Ross v. State, 16 Wyo. 285, 93 P. 299, reh. denied 94 P. 217 (1908). In State v. Selig, supra, 635 P.2d at 791, the significance of the evidence in a determination with respect to the giving of a lesser-included offense instruction was said to be:

“The third and fourth conditions prerequisite to the giving of lesser-included offense instructions necessitate consideration of the evidence in the given case. The evidence must be considered to determine whether or not there is evidence upon which a conviction for the lesser offense can be founded, and to determine whether or not there is sufficient dispute as to such evidence to justify a conviction on the lesser offense rather than the greater.”

The determination of the credibility of witnesses and the weight to be given evidence are questions to be resolved by the jury, and it follows that if there is any evidence which would permit the jury rationally to acquit a defendant of the greater offense and convict of the lesser, upon proper request the trial court must instruct on the lesser offense. United States v. Keeble, supra, 412 U.S. at 208, 93 S.Ct. at 1995; Stevenson v. United States, supra, 162 U.S. at 314-315, 16 S.Ct. at 839-40; Stamper v. State, supra, 662 P.2d at 92-93; State v. Selig, supra, 635 P.2d at 791; and Goodman v. State, Wyo., 573 P.2d 400 (1977).

Deborah Jahnke contends in this regard that the evidence was not sufficient to support the giving of the lesser-included offense instructions on the charge of aiding and abetting voluntary manslaughter. In her view there was no evidence from which the jury rationally could conclude that her participation in the patricide was “upon a sudden heat of passion” which represents the intent or mental state required for the commission of voluntary manslaughter. Her argument in this regard is consistent with her contention that a “sudden heat of passion” is an element of the crime separate and apart from the requirement that the killing be done voluntarily but without malice. We have disposed of that contention. Nevertheless we must resolve Deborah Jahnke’s claim that as an “accessory before the fact” it is incumbent upon the State to prove that her association and participation in the crime encompassed the state of mind required for the substantive offense of which she was convicted.

Wyoming has abrogated the common-law distinctions between principal, aider and abettor, and accessory before the fact to felonies. At common law, the parties to a felony were divided into four categories: (1) principals in the first degree — the actor, or actual perpetrator, of the offense; (2) principals in the second degree — those who are present, aiding and abetting the commission of the offense; (3) accessories before the fact — those who are not present at the commission of the crime, but who have counseled, procured or commanded another to commit it; and (4) accessories after the fact — those who, knowing a felony has been committed, receive, relieve, comfort, or assist the felon. 4 Blackstone, Commentaries *34-40; Annotation: Acquittal of Principal, or His Conviction of Lesser De*921gree of Offense, As Affecting Prosecution of Accessory, or Aider and Abettor, 9 A.L.R. 4th 972 (1981); 21 Am.Jur.2d Criminal Law, §§ 167-175, pp. 320-332; and 22 C.J.S. Criminal Law, § 81, p. 239. Our statute with respect to the first three categories provides that each “may be indicted, informed against, tried and convicted in the same manner as if he were a principal.” Section 6-1-114, W.S.1977; Hawkes v. State, Wyo., 626 P.2d 1041 (1981); and State v. Weekley, 40 Wyo. 162, 275 P. 122, 64 A.L.R. 420 (1929). The result is that differences in the manner of participation by the parties to the commission of a felony do not affect their individual culpability for the crime. Each, whether he is the principal, an aider and abettor, or an accessory before the fact, is treated as a principal for purposes of punishment. Section 6-1-114, W.S.1977.3

The Information charged Deborah Jahnke with participation in murder in the first degree by alleging that she “did unlawfully and feloniously aid and abet Richard John Jahnke in the commission of first degree murder.” The State’s trial theory was consistent with this charge, that is, that the appellant actively participated and assisted her brother in what she later described as an “execution” of their father. Deborah Jahnke, on the other hand, by cross-examination and argument, proceeded on dual theories: (1) that it was impossible to convict her of aiding and abetting a felony because the underlying homicide was justified under the law of self-defense; and (2) that even if the homicide was not justified as an act of self-defense, Deborah Jahnke was blameless because she did not actively participate in or associate with her brother’s criminal venture.

The classic statement of the requisite involvement to justify convicting an accused of aiding and abetting the commission of a criminal offense is that of Judge Learned Hand in United States v. Peoni, 100 F.2d 401, 402 (2nd Cir.1938), in which he stated that the accessory must “in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.” In a similar vein, we said in Haight v. State, Wyo., 654 P.2d 1232, 1238 (1982):

“ * * * To convict one of aiding and abetting the commission of a substantive offense, the prosecution must prove that the substantive offense was committed by someone and that the person charged as an aider and abettor associated himself and participated in the accomplishment and success of the criminal venture. * * *”

The prosecution must demonstrate that a defendant shared the criminal intent of the principal if he is to be found guilty as an aider and abettor. Nye & Nissen v. United States, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919 (1949); United States v. Peoni, supra; United States v. Winstead, 708 F.2d 925 (4th Cir.1983); United States v. Beck, 615 F.2d 441 (7th Cir.1980); Bosnick v. State, 248 Ark. 846, 454 S.W.2d 311 (1970); People v. Tewksbury, 15 Cal.3d 953, 127 Cal. Rptr. 135, 544 P.2d 1335, appeal dismissed and cert. denied 429 U.S. 805, 97 S.Ct. 38, 50 L.Ed.2d 65 (1976); Harper v. State, 155 Ga.App. 764, 272 S.E.2d 736 (1980); State v. McAllister, La., 366 So.2d 1340 (1978); State v. Grebe, Mo., 461 S.W.2d 265 (1970); State v. Lord, 42 N.M. 638, 84 P.2d 80 (1938); Commonwealth v. McFadden, 448 Pa. 146, 292 A.2d 358 (1972); Red v. State, 39 Tex.Crim.R. 667, 47 S.W. 1003, 73 Am. St.Rep. 965 (1898); State v. Boast, 87 Wash.2d 447, 553 P.2d 1322 (1976); 21 Am. Jur.2d Criminal Law, § 171, p. 329; and 22 C.J.S. Criminal Law, § 87, p. 255. The law does not require, however, that the defendant possess the identical intent as the principal. United States v. Beck, supra, 615 F.2d at 448-449. In other jurisdictions *922which have statutes similar to § 6-1-114, W.S.1977, the courts have held that one who aids and abets in a homicide can be charged with and convicted of a greater or a lesser degree of offense than the principal, depending upon the mental set established at trial. Bosnick v. State, supra, 454 S.W.2d at 314-315; State v. McAllister, supra, 366 So.2d at 1343; State v. Lord, supra, 84 P.2d at 92; and Red v. State, supra, 47 S.W. at 1004. See also LaFave and Scott, Criminal Law, § 64, p. 507 (1972). Individual culpability of the several parties to the crime is determined by the intent of each of them. In this case, for example, although Deborah Jahnke’s brother earlier had been convicted of voluntary manslaughter, that would not have foreclosed a verdict that Deborah Jahnke aided and abetted first degree murder if the jury had found that she associated herself with and participated in the killing of her father acting purposely and with premeditated malice.

The jury in this case rationally could find Deborah Jahnke guilty of voluntary manslaughter while acquitting her of the greater charged offense of murder. When he testified, Richard Jahnke characterized Deborah Jahnke as being very upset and crying after their parents had left and he had stated his intentions. He described her as looking like she was losing it, murmuring, shaking, and walking around the house nervously running her fingers through her hair as they prepared for their parents’ return. Deborah Jahnke was very upset when her request to “kill Mom” was refused. Deborah Jahnke’s statement and Richard Jahnke’s testimony both established that she had been directly involved in a violent family confrontation that evening, and that both had been victims of prior abuse at the hands of their father. From this testimony the jury could have found that Deborah Jahnke was acting “upon a sudden heat of passion” aroused by the earlier incidents which continued through her participation in the planning and accomplishment of what she characterized as the father’s execution. See Helton v. State, supra, 276 P.2d at 443; and State v. Flory, supra, 40 Wyo. at 204-206, 276 P. 458.

All that is required in order to support the giving of a lesser-included offense instruction is that there be some evidence which would permit the jury rationally to find the accused guilty of the lesser offense while acquitting of the greater. Stamper v. State, supra. The effort by the State to prove that Deborah Jahnke aided and abetted first degree murder does not preclude the giving of a lesser-included offense instruction if the proof offered by the State arguably failed to establish an element of the charged offense. This is the purpose for which the lesser-included offense doctrine originally was propounded. Keeble v. United States, supra, 412 U.S. at 208, 93 S.Ct. at 1995. The essence of the doctrine of lesser-included offenses is the universally recognized maxim of our jurisprudence that disputed questions of fact must be submitted to the jury for their resolution. See Sparf v. United States, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343 (1895). Questions concerning intent or mental state are among those which uniquely are suitable for determination by the jury.

We also note that over the objection of the State the appellant insisted upon introducing the verdict in the prior trial of her brother into evidence. The jury would not have found Deborah Jahnke guilty of first degree murder once its members knew that her brother had been acquitted of that offense, and this explains her effort to have the jury’s consideration limited to first degree murder. As we have said, this is not the law, and the evidence of her brother’s conviction, coupled with other evidence of Deborah Jahnke’s intent which was sufficiently in dispute, justified the giving of the lesser-included offense instructions by the district court. Under all the circumstances the submission of the instruction on the lesser-included offense in this case was proper, and no error can be found based upon that action by the district court.

*923Next Deborah Jahnke contends that the district court erred in denying her motion to suppress a statement given by her to sheriffs deputies on the morning following the killing of her father. The statement was admitted into evidence at trial over her objections. She argues that the statement was obtained in violation of her right to remain silent and her right to effective assistance of counsel guaranteed by the Fifth and Sixth Amendments to the United States Constitution.4 In addition, Deborah Jahnke argues that the statement was obtained in contravention of the policy of the State of Wyoming promulgated in § 14-6-206(b), W.S.1977, which provides as follows:

“Any person taking a child into custody shall as soon as possible notify the child’s parent, guardian or custodian. ⅜ * * )>

Essentially her argument is that a purported written waiver of her rights obtained prior to the initiation of questioning was ineffectual because as a juvenile she was incapable of voluntarily making a knowing and intelligent decision to relinquish those rights under the totality of the circumstances present at the time. She also urges that the failure to comply with § 14-6-206(b), W.S.1977, if it did exist, deprived her of an opportunity to consult with adults.

In several cases this court has considered the admissibility of custodial statements by minors. Mayer v. State, Wyo., 618 P.2d 127 (1980); Mullin v. State, Wyo., 505 P.2d 305 (1973), cert. denied 414 U.S. 940, 94 S.Ct. 245, 38 L.Ed.2d 166 (1973); Jarrett v. State, Wyo., 500 P.2d 1027 (1972); and Mortimore v. State, 24 Wyo. 452, 161 P. 766 (1916). We have stated the test of admissibility to be whether under the totality of the circumstances at the time the waiver of constitutional rights and subsequent statements were given voluntarily, knowingly and intelligently. Mayer v. State, supra. In these cases we have held that the fact that the individual being questioned is a juvenile is simply a factor to be considered in the totality of the circumstances in order to determine whether the waiver was efficacious. This view is consistent with that espoused in Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197, reh. denied 444 U.S. 887, 100 S.Ct. 186, 62 L.Ed.2d 121 (1979), in which the Supreme Court of the United States said:

“This totality-of-the circumstances approach is adequate to determine whether there has been a waiver even where interrogation of juveniles is involved. We discern no persuasive reasons why any other approach is required where the question is whether a juvenile has waived his rights, as opposed to whether an adult has done so. The totality approach permits — indeed, it mandates — inquiry into all the circumstances surrounding the interrogation. This includes evaluation of the juvenile’s age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights. [Citation.]”

In other cases the Supreme Court has admonished that the greatest care must be exercised to assure that the giving of a statement by a juvenile was in fact voluntary and not the product of immaturity, ignorance or coercion. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); Gallegos v. State of Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325, 87 A.L.R.2d 614 (1962), reh. denied 370 U.S. 965, 82 S.Ct. 1579, 8 L.Ed.2d 835 (1962); and Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948), cert. denied 337 U.S. 945, 69 S.Ct. 1501, 93 L.Ed. 1748 (1949) (plurality opinion). Giving of the warnings required by Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L. R.3d 974 (1966), reh. denied California v. *924Stewart, 385 U.S. 890, 87 S.Ct. 11, 17 L.Ed.2d 121 (1966), does not suffice in the instance of a juvenile to demonstrate a knowing and intelligent waiver of constitutional rights. The totality of the circumstances surrounding the custodial interrogation during which statements are obtained is to be examined to determine that in fact, and not merely in form, the accused knowingly and voluntarily waived the right to silence and to have the assistance of counsel. Fare v. Michael C., supra, 442 U.S. at 724-725, 99 S.Ct. at 2571-72; North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979); and Miranda v. State of Arizona, supra, 384 U.S. at 475-477, 86 S.Ct. at 1628-29.

The district court complied with the prior decisions of this court and held a full evidentiary hearing for the purpose of determining whether the appellant’s statement should be suppressed. See Hernandez v. State, Wyo., 577 P.2d 643 (1978); Raigosa v. State, Wyo., 562 P.2d 1009 (1977); and Dodge v. State, Wyo., 562 P.2d 303 (1977). After considering all the evidence introduced at the' suppression hearing, the district court ruled in a letter opinion which was incorporated by reference in its written Order that “based on all of the testimony, including that of the psychiatrist and psychologist who interviewed her sometime afterwards, that the State has carried its burden of proving beyond a preponderance of the evidence that the defendant did voluntarily, after advice of her constitutional rights, knowingly, intelligently, and voluntarily waive these rights, and therefore the Court finds and rules that the statements are admissible.” Our review of the evidence introduced during the hearing on the motion to suppress, which is essential to the consideration of this claim of error by Deborah Jahnke, leads to the conclusion that the trial court did not err in refusing to suppress her statement and in allowing its introduction against her at trial.

At approximately 6:40 a.m. on the morning following the killing of Deborah Jahnke’s father, a deputy sheriff approached her on foot in a park and, after identifying her, advised her that he was a deputy sheriff and that there were a couple of officers who wanted to talk with her. Deborah Jahnke agreed to accompany the deputy sheriff to his vehicle, and she waited in the car with him for the other officers to arrive. She said that she was sleepy, and her hair appeared as if she had been out in the wind. There was nothing else about her appearance that was unusual or remarkable. Deborah Jahnke asked whether her brother had been found, and she said she had read about the events of the previous evening in that morning’s newspaper. She did not indicate at any time that she did not want to speak with the officers or that she wanted to leave.

Within minutes of the time that Deborah Jahnke was located, one of the officers who actually conducted the interview arrived at the park. He came to the vehicle where Deborah Jahnke sat and identified himself by displaying his credentials. He asked Deborah Jahnke if she would accompany him to the station house and talk with him, and she indicated she would not mind going to the sheriff’s office and that she wanted to talk with the officers. Deborah Jahnke was then taken to the sheriff’s office, arriving at approximately 7:00 a.m., and she was escorted into a patrol room where she was given a cup of coffee. While they were waiting for another officer to arrive, Deborah Jahnke told the sheriff’s officer that she was scared.

The officer and Deborah Jahnke engaged in general conversation not related to the events of the prior evening while they waited approximately twenty minutes for a second officer to arrive. The conversation took place in the patrol lieutenant’s office, a large room with windows on two of the walls. The appellant and the officer sat on opposite sides of a desk approximately six feet from each other. When the officer asked if Deborah Jahnke had an English accent, she told him that he was the one with the accent. At that time she appeared very calm and collected, was speaking in normal tones, and was being very respon*925sive to conversation. She did not indicate any desire to leave nor did she complain of being tired or hungry. She appeared to be intelligent and well versed in the English language, conversing in complete intelligible sentences. At that time Deborah Jahnke was seventeen years old and a senior in high school.

At approximately 7:24 a.m. the second officer arrived and he sat at the far end of the desk about eight feet from where Deborah Jahnke was seated. She was asked whether she could read and write the English language, and she gave an affirmative response. A written waiver of her constitutional rights form was given to her. The officer read each of the rights appearing on the form aloud while Deborah Jahnke read along on the form which had been provided for her. After these rights had been read to her, the officers asked that she indicate in the appropriate block on the form whether she understood the rights or not. She was told she could check the block any way that she desired. Deborah Jahnke checked the yes block, indicating that she understood her rights as outlined in the form. She then checked the appropriate block on the form and signed the form, thereby representing that she had the constitutional rights in mind and that she wanted to talk to the officers. The form was signed by both of the officers prior to any questioning. They explained to Deborah Jahnke that before any questioning took place they had to ensure that she did understand her rights.

Only then did the officers begin interviewing Deborah Jahnke about the events of the night before. During the initial portion of this interview one of the officers made notes of what Deborah Jahnke told them. The notes could not be produced at trial because after a complete and thorough search they could not be located. At the end of the initial stage of the interview the officers then asked Deborah Jahnke if she would consent to recording on tape the remainder of the interview, and she agreed to that. The officer testified that Deborah Jahnke appeared calm throughout the interview and was not threatened in any way nor were any promises made to secure her cooperation. There'was a break of approximately fifteen minutes while the necessary equipment to record the interview was set up. The record discloses that during this time Deborah Jahnke’s mother came to the jail and asked to see her, but she was denied permission to see her daughter at that time. Deborah Jahnke again was advised of her rights and given the opportunity to reconsider her alternatives. The recorded portion of the interview began at 8:28 a.m. and lasted for nearly an hour and a half. The officer who had earlier taken notes testified that he referred to them periodically during the recorded interview to be sure that they had covered all the information included in the earlier unrecorded portion of the interview. At the conclusion of the recorded interview Deborah Jahnke was informed that she was under arrest and that charges would be filed against her. The record also discloses that at about 8:00 a.m. a teacher who was a friend of Deborah Jahnke had spoken with one of the officers and asked if she could see her, and permission was denied.

Prior to the advice that she was under arrest Deborah Jahnke had not been informed that she was a suspect in a crime or that her mother and a teacher had asked to speak with her. During the course of the interview she told the officers that she had slept the previous night in a clubhouse of a large apartment complex and had eaten the evening before. She stated that she felt fine and she did not appear nervous. The officer stated that he notified the sheriffs dispatch center when Deborah Jahnke was taken into custody earlier that morning, but he did not contact anyone further until after her statement had been concluded. Deborah Jahnke did not at any time during the interview request to speak to an attorney or ask to speak to any other adult. She did not ask to leave the interview. The officer testified that by the conclusion of the interview he believed that Deborah Jahnke was very intelligent and analytical in her answers to their questions. During the suppression hearing a transcript of the *926tape-recorded interview was introduced into evidence.

A clinical psychologist and a forensic psychiatrist testified on behalf of Deborah Jahnke at the suppression hearing. The psychologist, who had interviewed Deborah Jahnke on two separate occasions for a total of approximately two hours while she was in custody in the county jail, said that he believed that she was emotionally insta-ble as a result of the history of abuse in her home. He based that opinion upon the interview he conducted on November 18, 1982, immediately following the funeral of the father, and a second interview two days later. It was his opinion that Deborah Jahnke suffered from a mixed personality disorder and was not capable of knowingly and intelligently waiving her rights at the time that he spoke with her. This witness also testified that Deborah Jahnke appeared to be at least average in intelligence but immature. He conceded that he had conducted no diagnostic testing and was relying wholly upon impressions he had formed in the two brief interviews with Deborah Jahnke.

The forensic psychiatrist testified that in his opinion Deborah Jahnke was of average to above average intelligence but that she was very immature and suffered from emotional instability. It was his opinion that Deborah Jahnke was not capable of making an effective waiver of her rights at the time she was interviewed by the sheriffs officers. On cross-examination the witness conceded that Deborah Jahnke, although given to extensive fantasizing, was without a doubt capable of distinguishing fantasy from reality. He further testified that he was sure that Deborah Jahnke fully understood what the officers were saying when they advised her of her rights in accordance with the Miranda decision. He further testified that in his opinion at the time and place she gave her statement to the officers she understood the questions being asked of her and that she could request an attorney if she desired to. He said, however, that she was incapable of making that decision on her own due to many factors.

Our review of the record, including the particular evidence outlined above, persuades us that under the totality of the circumstances Deborah Jahnke made a voluntary, knowing and intelligent waiver of her rights prior to being questioned by the sheriff's officers. We agree with the trial judge that there was no reason demonstrated to suppress the statement. From her first contact with the deputy sheriff in the park throughout the interview with the other officers, Deborah Jahnke was willing to speak with them. She was given complete advice of her rights, and was capable of comprehending what was being asked her. At no time did Deborah Jahnke indicate any desire not to talk with the officers or to consult with any other person prior to or during the questioning. She responded readily and at length to all of the questions. Deborah Jahnke was of at least average intelligence and she understood her right to remain silent and her right to consult with the attorney. We can discover in this record no overreaching on the part of the officers or any manner of coercion in the obtaining of the waiver of Deborah Jahnke’s rights to remain silent and to consult an attorney. The fact that Deborah Jahnke was a juvenile and was not given an opportunity to consult with an adult prior to waiving those rights does not make her waiver ineffective as a matter of law. See, e.g., Fare v. Michael C., supra, 442 U.S. at 725, 99 S.Ct. at 2572; United States v. Palmer, 604 F.2d 64 (10th Cir. 1979); State v. F.L.A., Alaska, 608 P.2d 12 (1980); State v. Rodriguez, 113 Ariz. 409, 555 P.2d 655 (1976); People v. Terry, 85 Cal.Rptr. 409, 2 Cal.3d 362, 466 P.2d 961, cert. dismissed 406 U.S. 912, 92 S.Ct. 1619, 32 L.Ed.2d 112 (1972); State v. Turcio, 178 Conn. 116, 422 A.2d 749 (1979), cert. denied 444 U.S. 1013, 100 S.Ct. 661, 62 L.Ed.2d 642 (1980); Matter of D.A.S., D.C., 391 A.2d 255 (1978); Arnold v. State, Fla.App., 265 So.2d 64 (1972); Lane v. State, 247 Ga. 19, 273 S.E.2d 397 (1981); Edwards v. State, 227 Kan. 723, 608 P.2d 1006 (1980); People v. Baxtrom, 81 Ill.App.3d 653, 37 Ill.Dec. 437, 402 N.E.2d 327 (1980); State v. Thomas, 305 Minn. 513, 232 N.W.2d 766 (1975); *927Commonwealth v. Veltre, 492 Pa. 237, 424 A.2d 486 (1980); In re Williams, 265 S.C. 295, 217 S.E.2d 719 (1975); K.W.M. v. State, Tex.Civ.App., 598 S.W.2d 660 (1980); Green v. Commonwealth, 223 Va. 706, 292 S.E.2d 605 (1982); State v. Laws, W.Va., 251 S.E.2d 769 (1978); and State v. Jones, 95 Wash.2d 616, 628 P.2d 472 (1981); contra, People v. Maes, 194 Colo. 235, 571 P.2d 305 (1977) (statutory); Lewis v. State, 259 Ind. 431, 288 N.E.2d 138 (1972); Commonwealth v. Roane, 459 Pa. 389, 329 A.2d 286 (1974); and In re E.T.C., 141 Vt. 375, 449 A.2d 937 (1982) (state constitutional grounds).

Deborah Jahnke also argues some special application of § 14-6-206(b), W.S. 1977, which requires that notification be given as soon as possible to a child’s parent, guardian or custodian when a juvenile is taken into custody. The implication of this argument is that the failure to furnish such notification would make Deborah Jahnke’s statement inadmissible. It is clear from the record that the officer who arrested Deborah Jahnke at the conclusion of her interview did not personally notify her mother that she had been taken into custody. What the record does reflect, however, is that another officer of the Laramie County Sheriff’s Department who was at the Jahnke home on the morning following the killing told Deborah Jahnke’s mother that she had been found and was being taken to the sheriff’s department office, and this advice occurred within minutes after Deborah Jahnke was initially approached in a park and identified. We have noted that permission was denied her mother to speak with her during the course of the interview, and that is a factor in the totality of the circumstances which we already have considered. Under these circumstances we can perceive no prejudice to Deborah Jahnke under these circumstances arising out of any asserted failure to comply with the notification statute. In fact, it would appear that timely notification was given to her mother by the officers of the law enforcement agency which took her into custody.

In her third claim of error Deborah Jahnke attacks the constitutionality of § 14-6-203, W.S.1977. Specifically the claimed error relates to § 14-6-203(c), W.S. 1977, which provides in pertinent part as follows:

“The jurisdiction of the juvenile court is not exclusive. If a minor is alleged to have violated a municipal ordinance, a complaint may be processed in the municipal court in the manner provided by general law or the complaint may be referred to the county and prosecuting attorney for disposition as provided in this subsection. All complaints alleging misconduct of a minor other than violation of a municipal ordinance, of W.S. 12-6-101 or a misdemeanor violation of the Uniform Act Regulating Traffic on Highways, must be referred to the county and prosecuting attorney who shall determine the appropriate action to be taken and the appropriate court in which to prosecute the action. * * * ” (Emphasis added.)

Deborah Jahnke contends that this statute is unconstitutional on its face because it violates the separation-of-powers doctrine by placing a decision as to the appropriate court in which to prosecute within the discretion of an officer of the executive branch when that decision properly should be made by the judiciary; that due process requires that there be appropriate guidelines established with respect to the decision as to which court the case should be prosecuted in, and that the decision be made only after an opportunity for a hearing; and that the failure to establish guidelines for the exercise of the prosecutor’s discretion results in a denial of equal protection. These arguments were not presented to the trial court. In fact, Deborah Jahnke’s attorney stated in argument during a hearing on her pretrial motion to transfer proceedings to the juvenile court:

“Now, I have not raised any constitutional questions because I believe that under appropriate circumstances that kind of discretion may be appropriate, but it *928would only be appropriate if there are some standards by which this court can review that discretion on the part of the district attorney.”

This court well might be justified in not considering this contention. Our rule is that in the absence of fundamental error affecting a substantial right of the appellant or involving the jurisdiction of the court, we do not consider questions sought to be raised for the first time on appeal. Hopkinson v. State, Wyo., 664 P.2d 43 (1983), cert. denied — U.S.-, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983); Nickelson v. People, Wyo., 607 P.2d 904 (1980); and Nisonger v. State, Wyo., 581 P.2d 1094 (1978). Furthermore, unless plain error is present, questions concerning the constitutionality of a statute are not considered on appeal if the party presenting them failed to present or argue the contentions in the trial court. Hopkinson v. State, supra, 664 P.2d at 50; Jackson v. State, Wyo., 624 P.2d 751, cert. denied 451 U.S. 989, 101 S.Ct. 2327, 68 L.Ed.2d 848 (1981); and Hampton v. State, Wyo., 558 P.2d 504 (1977). There is no jurisdictional question present in this case. Our statutes vest concurrent jurisdiction in the juvenile court and district court for purposes of criminal prosecution of minors for felonies. Wyoming Constitution, Art. 5, § 10, and § 14-6 — 203(c), W.S.1977. Deborah Jahnke must rely upon plain error in order to present her argument on the merits to the court. See Rule 49(b), W.R.Cr.P.

In Hampton v. State, supra, 558 P.2d at 507, this court stated the criteria for applying the doctrine of plain error:

“While this Court has recognized that the plain error concept must be applied to each case on its own particular facts, and any attempt to define the term ‘plain error or defects affecting substantial rights’ is unlikely to be helpful (Hays v. State, Wyo., 522 P.2d 1004 (1974)), still there are some accepted criteria which we invoke when a claim of plain error is presented. When review is sought under the plain error doctrine the Court must be able to discern from the record, without resort to speculation or equivocal inference, what occurred at trial, that is we are entitled to know the particular facts. [Citations.] Further, the proponent of plain error must demonstrate the existence of a clear and unequivocal rule of law which the particular facts transgress in a clear and obvious, not merely arguable, way. [Citations.] If these criteria are met, the error or defect must adversely affect some substantial right of the accused in order to avoid the application of the harmless error concept procedurally expressed in Rule 49(a), W.R. Cr.P. [Citations.] The assertion of a constitutional ground of error will not avoid the application of these criteria, and if they are not satisfied any claim for review under the plain error doctrine must fail. [Citations.]”

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