As explained more fully below, Schmuck v. State , 2017 WY 140, 406 P.3d 286 (Wyo. 2017) overruled the aspect of the Shull opinion that held such an error was structural and held, instead, that it is simple trial error. Consequently, when no objection was made at trial to incorrect instructions on the relationship between murder and voluntary manslaughter, the appellant must show that the district court committed plain error, including showing that he suffered material prejudice, before reversal is warranted. SeeJohns v. State , 2018 WY 16, ¶ 20, 409 P.3d 1260, 1267 (Wyo. 2018).FACTS
See, e.g ., Robinson, ¶ 31, 378 P.3d at 608 (reviewing claim that district court erred by admitting hearsay evidence during the adjudicatory phase for plain error because the defendant did not object at the hearing); Shaw v. State, 998 P.2d 965, 967-68 (Wyo. 2000) (ruling that the failure to serve defendant with the petition to revoke probation amounted to plain error); Daves v. State, 2011 WY 47, ¶ 20, 249 P.3d 250, 257 (Wyo. 2011) (applying plain error standard to claim that the district court committed a procedural error). Under plain error review, the defendant must establish: 1) the record clearly shows the incident alleged as error; 2) the district court transgressed a clear and unequivocal rule of law; and 3) the defendant was denied a substantial right resulting in material prejudice. Johns v. State , 2018 WY 16, ¶ 12, 409 P.3d 1260, 1264 (Wyo. 2018) (citing Schmuck v. State , 2017 WY 140, ¶ 32, 406 P.3d 286, 297 (Wyo. 2017) and Collins v. State , 2015 WY 92, ¶ 10, 354 P.3d 55, 57 (Wyo. 2015) ).[¶29] Mr. Bazzle claims the district court placed the burden on him to prove he did not violate the conditions of his probation when it made the following statement during the adjudicatory hearing:
"[A] lesser-included offense instruction should not be given in the absence of some minimal evidentiary support." Sindelar v. State, 2018 WY 29, ¶ 55 n.5, 416 P.3d 764, 777 n.5 (Wyo. 2018) (citing Johns v. State, 2018 WY 16, ¶ 23, 409 P.3d 1260, 1268 (Wyo. 2018)). The question is not whether Ms. Jacobs could have had a different intent, but whether there was any evidence that she did, so as to support the requested lesser-included offense instruction.
Typically, the district court decides whether the defendant has made a prima facie case of an affirmative defense before it instructs the jury on the defense. Johns v. State, 2018 WY 16, ¶ 14, 409 P.3d 1260, 1265 (Wyo. 2018) ("[B]efore the district court was required to instruct the jury that the State had to prove beyond a reasonable doubt that Mr. Johns did not act in self-defense, Mr. Johns was required to make a prima facie showing of [the elements of the affirmative defense]."). See also, 75A Am. Jur. 2d Trial § 683 (2021) ("As a rule, the trial court must charge the jury on an affirmative defense if the defense is raised by the evidence; however, the trial court is not required to charge the jury on the defense if the charge is not authorized by the evidence.
"[T]his Court has not stated what quantity of evidence is necessary to satisfy the ‘minimal’ or ‘slight burden’ required to make a prima facie showing[.]" Johns v. State , 2018 WY 16, ¶ 15, 409 P.3d 1260, 1265 (Wyo. 2018) (addressing the quantity of proof in the trial context). As that question is not dispositive in this case, we will not elaborate here.
To satisfy the plain error standard, Ms. Wyant must show "1) the record is clear about the incident alleged as error; 2) the district court transgressed a clear and unequivocal rule of law; and 3) [s]he was denied a substantial right resulting in material prejudice." Sindelar , ¶ 16, 416 P.3d at 768 (citing Johns v. State , 2018 WY 16, ¶ 12, 409 P.3d 1260, 1264 (Wyo. 2018) ). Because the allegedly deficient jury instructions clearly appear in the record, the first prong of plain error review is satisfied.
Anderson v. State , 2014 WY 13, ¶ 20, 317 P.3d 1108, 1115 (Wyo. 2014) (review of constitutional claims is for plain error where appropriate objection not made below). Under our plain error review, the defendant must establish: 1) the record clearly shows the incident alleged as error; 2) the district court transgressed a clear and unequivocal rule of law; and 3) the defendant was denied a substantial right resulting in material prejudice. Bazzle v. State , 2019 WY 18, ¶ 28, 434 P.3d 1090, 1097 (Wyo. 2019) (citing Johns v. State , 2018 WY 16, ¶ 12, 409 P.3d 1260, 1264 (Wyo. 2018) ). 1. Confrontation Claim
Ortega v. State , 966 P.2d 961, 966 (Wyo. 1998) (emphasis added). See, e.g. , Johns v. State , 2018 WY 16, ¶ 12, 409 P.3d 1260, 1264 (Wyo. 2018) ; Mendoza v. State , 2013 WY 55, ¶ 9, 300 P.3d 487, 490 (Wyo. 2013) ; Bloomer v. State , 2010 WY 88, ¶ 9, 233 P.3d 971, 974 (Wyo. 2010). In other words, despite the clear obligations to speak set forth in the rule and the failure to comply with the rule, we treat the error as "forfeited," not "waived."
Sindelar v. State, 2018 WY 29, ¶ 16, 416 P.3d 764, 768 (Wyo. 2018). See also , Johns v. State , 2018 WY 16, ¶ 12, 409 P.3d 1260, 1264 (Wyo. 2018). [¶11] This Court generally hesitates to find plain error in closing argument because the trial court should not be placed in " ‘a position of having to sua sponte challenge remarks of counsel when there is otherwise no objection thereto.’ "