Rule 31 Verdict

(a) Return. — The verdict shall be unanimous. It shall be returned by the jury to the judge in open court.

(b) Several defendants. — If there are two or more defendants, the jury at any time during its deliberations may return a verdict or verdicts with respect to a defendant or defendants as to whom it has agreed; if the jury cannot agree with respect to all, the defendant or defendants as to whom it does not agree may be tried again.

(c) 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.

(d) Poll of jury. — When a verdict is returned and before it is recorded the jury shall be polled at the request of any party or upon the court’s own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged. Compare. — Rule 31, Fed. Rules Cr. Proc. Separation of powers. — No violation of the separation of powers doctrine occurred when a trial court found a juvenile guilty of attempted shoplifting even though the juvenile petition only charged shoplifting and was never amended to include a charge of attempted shoplifting since a trial court may properly rely on Rule 31 to find a juvenile defendant guilty of a lesser-included or attempted offense even if not originally charged. MJS v. State (In re MJS), 2001 WY 31, 20 P.3d 506, 2001 Wyo. LEXIS 40 (Wyo. 2001). Guilty verdict unconstitutional where insufficient evidence to support element of crime. — A general verdict of guilty returned on an aggravated burglary count which alleged in the alternative intent to steal or intent to commit an assault violated the defendant’s rights to a unanimous jury verdict where the court had already ruled as a matter of law that there was insufficient evidence to support the intent to assault element. Fife v. State, 676 P.2d 565, 1984 Wyo. LEXIS 255 (Wyo. 1984) (decided under former § 6-7-201). Failure to object to irregularity is waiver. — Failure to object to the form or substance of a verdict within time whereby corrective action could be obtained amounts to a waiver of any irregularity, informality, ambiguity or other error in the verdict. Clegg v. State, 655 P.2d 1240, 1982 Wyo. LEXIS 406 (Wyo. 1982). Purpose of subdivision (c) is to aid the prosecution where its proof failed to make out all of the elements of the offense charged. State v. Selig, 635 P.2d 786, 1981 Wyo. LEXIS 383 (Wyo. 1981). Subdivision (c) is beneficial to defendant because it affords the jury a less drastic alternative than the choice between conviction of the offense charged and acquittal. State v. Selig, 635 P.2d 786, 1981 Wyo. LEXIS 383 (Wyo. 1981). Lesser included offense defined. — A lesser included offense is one which is necessarily established by proof of the greater offense, and which is properly submitted to the jury, should the prosecution’s proof fail to establish guilt of the greater offense charged, without necessity of multiple indictment. Evanson v. State, 546 P.2d 412, 1976 Wyo. LEXIS 171 (Wyo. 1976). 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. Balsley v. State, 668 P.2d 1324, 1983 Wyo. LEXIS 355 (Wyo. 1983); Amin v. State, 694 P.2d 119, 1985 Wyo. LEXIS 438 (Wyo. 1985). For a lesser offense to be “necessarily included” in the offense charged, it must be such that the greater offense cannot be committed without also committing the lesser. Evanson v. State, 546 P.2d 412, 1976 Wyo. LEXIS 171 (Wyo. 1976). The determination of the existence of a necessarily included offense pursuant to subdivision (c) of this rule is a question of law that justifies de novo review. Sindelar v. State, 932 P.2d 730, 1997 Wyo. LEXIS 10 (Wyo. 1997). Test for determining entitlement to lesser-included offense instruction. — Defendant is entitled to lesser-included offense instruction, as provided for in subdivision (c), 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 prosecution or the defense. State v. Selig, 635 P.2d 786, 1981 Wyo. LEXIS 383 (Wyo. 1981). Statutory elements test. — Under the statutory elements test, one offense is not “necessarily included” in another unless the elements of the lesser offense are a subset of the elements of the charged offense; where the lesser offense requires an element not required for the greater offense, no instruction is to be given under this rule. Sindelar v. State, 932 P.2d 730, 1997 Wyo. LEXIS 10 (Wyo. 1997). Both the prosecution and the defense have an equal right to lesser included offense instruction, in light of the fact that the language of subsection (c), identical to Federal Rule 31(c), implies and requires such equality. State v. Keffer, 860 P.2d 1118, 1993 Wyo. LEXIS 154 (Wyo. 1993). Instructions regarding greater and lesser offenses. — When a greater and lesser offense are charged to the jury, the proper course is to tell the jury to consider first the greater offense, and to move on to consideration of the lesser offense only if they have some reasonable doubt as to the guilt of the greater offense. A jury that finds guilt as to the greater offense does not enter a verdict concerning guilt of the lesser offense. The reason for this absence of consideration is not any inconsistency between the offenses, but rather reflects the very “inclusion” that defines the lesser offense as one “included” in the greater. Evanson v. State, 546 P.2d 412, 1976 Wyo. LEXIS 171 (Wyo. 1976). No instruction on lesser offense where evidence concerns only greater. — 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. Richmond v. State, 554 P.2d 1217, 1976 Wyo. LEXIS 215 (Wyo. 1976), reh’g denied, 558 P.2d 509, 1977 Wyo. LEXIS 323 (Wyo. 1977); State v. Selig, 635 P.2d 786, 1981 Wyo. LEXIS 383 (Wyo. 1981); Amin v. State, 694 P.2d 119, 1985 Wyo. LEXIS 438 (Wyo. 1985). But instruct on lesser if jury could rationally find guilty thereof. — The defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater. Richmond v. State, 554 P.2d 1217, 1976 Wyo. LEXIS 215 (Wyo. 1976), reh’g denied, 558 P.2d 509, 1977 Wyo. LEXIS 323 (Wyo. 1977); State v. Selig, 635 P.2d 786, 1981 Wyo. LEXIS 383 (Wyo. 1981). Notice invalid for improper lesser included offense. — Where the information charged defendant with only second degree sexual assault, instructing jury members that defendant could be convicted for taking indecent liberties with a child worked material prejudice for failure of full proper notice, requiring reversal. Derksen v. State, 845 P.2d 1383, 1993 Wyo. LEXIS 25 (Wyo. 1993). The jury has the duty to resolve conflicting evidence, and an appellate court cannot interfere with their verdict even if it might think the conflict was resolved wrongly. Fresquez v. State, 492 P.2d 197, 1971 Wyo. LEXIS 275 (Wyo. 1971). Juror’s confusion during polling. — Reversal of defendant’s conviction was not warranted where, upon the polling of the jury pursuant to this section, one of the jurors answered “No” when asked if guilty was his verdict and appeared confused. Upon further deliberations the jury unanimously returned a verdict of guilty, and it was determined that any contact the juror had with his wife to determine if his confusion was related to an insulin reaction did not relate to the case. Gunnett v. State, 2005 WY 8, 104 P.3d 775, 2005 Wyo. LEXIS 10 (Wyo. 2005). Poll of the jury ensured that the verdict was unanimous. — Vargas-Rocha v. State, 891 P.2d 763, 1995 Wyo. LEXIS 37 (Wyo. 1995). Questioning of juror by judge. — Subdivision (d) of this rule does not prohibit the trial judge from questioning a juror who has given an uncertain or equivocal answer during the polling. Harris v. State, 933 P.2d 1114, 1997 Wyo. LEXIS 48 (Wyo. 1997). The trial judge did not coerce jurors who had indicated during polling that they disagreed with the verdict into accepting the verdict; the judge’s questioning them was simply an attempt to determine whether the jurors truly disagreed with the jury’s verdict or whether they were just confused. Harris v. State, 933 P.2d 1114, 1997 Wyo. LEXIS 48 (Wyo. 1997). False imprisonment is a lesser-included offense of kidnapping; however, a trial court did not err by refusing to give such an instruction because the theory of the defense, consent, only allowed the jury to find defendant guilty or not guilty of kidnapping. Dean v. State, 2003 WY 128, 77 P.3d 692, 2003 Wyo. LEXIS 155 (Wyo. 2003).