               IN THE SUPREME COURT, STATE OF WYOMING

                                        2015 WY 140


                                                          OCTOBER TERM, A.D. 2015

                                                                   November 6, 2015


JOHN WALLACE MCGINN,

Appellant
(Defendant),

v.                                                             S-14-0251

THE STATE OF WYOMING,

Appellee
(Plaintiff).


                    Appeal from the District Court of Laramie County
                        The Honorable Peter G. Arnold, Judge


Representing Appellant:
      Timothy C. Kingston, Law Office of Tim Kingston, LLC, Cheyenne, Wyoming.

Representing Appellee:
      Peter K. Michael, Attorney General; John G. Knepper, Chief Deputy Attorney General;
      David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney
      General. Argument by Mr. Knepper.

Before BURKE, C.J., and HILL, KITE*, DAVIS, and FOX, JJ.

BURKE, Chief Justice, delivers the opinion of the Court; FOX, Justice, files a specially
concurring opinion, in which KITE, Justice (Ret.), joins.

* Justice Kite retired from judicial office effective August 3, 2015, and, pursuant to Article 5,
§ 5 of the Wyoming Constitution and Wyo. Stat. Ann. § 5-1-106(f) (LexisNexis 2015), she was
reassigned to act on this matter on August 4, 2015.
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.
BURKE, Chief Justice.

[¶1] John Wallace McGinn was found guilty by a jury of domestic battery and
possession of a weapon with intent to threaten. Mr. McGinn testified at trial, and, over
the objections of defense counsel, the prosecutor asked him a series of questions in which
she repeated statements made by his daughter and asked, “was she lying?” Prior to trial,
at a hearing on the State’s Rule 404(b) notice, the district court ruled that evidence
regarding prior discharge of a gun would be admissible. Mr. McGinn appeals,
contending the “was she lying” questions constitute prosecutorial misconduct, and that
the trial court abused its discretion when it allowed the prior discharge evidence. We
reverse.

                                              ISSUES

[¶2]           1.     Were the prosecutor’s improper “was she lying”
               questions prejudicial to Mr. McGinn?

               2.    Did the district court abuse its discretion when it
               allowed evidence of prior discharge of the gun?

                                              FACTS

[¶3] Mr. McGinn and his wife, Shari Swenson, lived in Cheyenne, Wyoming, with
their eight-year-old daughter, K. Ms. Swenson worked long hours, and Mr. McGinn was
a stay-at-home dad. On the day after Thanksgiving 2012, Mr. McGinn was at home with
K and he instructed her to fold the laundry. K balked, and swung at him, and Mr.
McGinn testified that he gave her a “swat on her bottom, not very hard, and I sen[t] her to
her room.” 1 He then called Ms. Swenson and told her that K had been misbehaving.

[¶4] Ms. Swenson got home later that evening and found K in her playroom, where she
reported that she had been hurt by Mr. McGinn. Ms. Swenson confronted Mr. McGinn,
and the two embarked upon a fight that lasted several hours. At some point, the fight
ceased being merely verbal. Ms. Swenson testified:

               I stood up and I got in his face. He told me that he was the
               meanest son of a bitch that I’d ever seen. He backhanded me,
               and he proceeded down the hallway out of my eyesight.



1
 At trial, K testified that she was subjected to more extensive corporal punishment by Mr. McGinn, but
because Mr. McGinn was acquitted of the felony child abuse charge, we do not accept those facts as true.




                                                  1
[¶5] Ms. Swenson heard Mr. McGinn go into the bedroom and open the nightstand
drawer where he kept his handgun. He came down the hall with the gun in his hand,
waving it around, and said, “I’m not afraid to use this on you or anybody else. I’m not
afraid to go to prison. I’m not afraid of any of that.” Then Mr. McGinn went down to
the basement, and when he came back up Ms. Swenson did not see the gun again.
Meanwhile, Ms. Swenson packed some things for herself and K. The two got in her
truck and left. The next day Ms. Swenson reported the incident to the Cheyenne police,
who took their statements and photographs. Photos showed a lump over Ms. Swenson’s
left eye and some swelling around K’s right eye and bruising on her back. Mr. McGinn
was charged with child abuse, domestic battery, and possession of a weapon with intent
to threaten.

[¶6] At trial, Ms. Swenson testified to previous incidents involving the gun. In spring
2012, Mr. McGinn was cleaning the gun and told Ms. Swenson he wanted to show her
something. The gun discharged and the bullet went through the bathroom wall and into
the foundation of the neighbors’ house. Although Ms. Swenson believed at the time that
the discharge was an accident, at trial she testified:

             It could have been a misfire. It could have been an accidental
             discharge. It could have been a scare tactic. I don’t know at
             this point.

[¶7] Ms. Swenson also testified to approximately five other occasions during which she
locked herself in K’s room and could hear Mr. McGinn outside the door with the gun.
“[H]e would cock it, load it and unload it, so I could hear it.” On one of those occasions
she saw Mr. McGinn with the gun in his hands.

[¶8] Mr. McGinn testified at trial. His testimony regarding the laundry incident
differed significantly from K’s. On cross-examination, the prosecutor referred to specific
statements K had made in her forensic interview and asked Mr. McGinn whether K was
lying.

             Q.     She says she was folding laundry and you slapped her
             on the face. Is that true?

             A.     No, it’s not true again for the second time.

             Q.     So she’s lying?

             A.     I’m not saying that my daughter is lying. I’m going to
             say that Shari’s – that Shari’s speaking, not her.




                                            2
                   Q.    She says she started crying then. Is she lying about
                   that?

                   ...

                   A.     I never slapped her, so I don’t know how you would
                   like me to answer that.

                   Q.     The answer is yes or no. She says you slapped her and
                   then she started crying. Is she lying, yes or no?

[¶9] Defense counsel objected, noting that his client should not have to call his
daughter a liar to explain what happened. The district court overruled the objection, and
the same pattern of questions continued. The prosecutor asked approximately 20 “was
she lying” questions. Then, upon defense counsel’s renewed objection, the district court
instructed the jury:

                   Ladies and gentlemen, that’s a good point. Who is being
                   honest and who is being dishonest is for you to decide. The
                   questions I’ve allowed asked Mr. McGinn whether his
                   daughter was being honest. There’s a difference between the
                   two. Or whether he thought his daughter was being honest.

[¶10] After that instruction, the prosecutor changed her questions regarding K’s version
to “Is that true or not true?” At the close of the testimony, defense counsel moved for a
mistrial on the basis of the “was she lying” questions. The district court denied the
motion, explaining that the tactic was necessary in this case, where Mr. McGinn
“forcefully” denied the facts testified to by his wife and daughter.2 In her closing


2
    The trial judge explained his reasons for permitting those questions:

                 All right. I understand your concern, [counsel for McGinn], but I think it’s
          important for me to put on the record what may not appear otherwise on the record.

                  Mr. McGinn, from my personal observation of his demeanor on the stand,
          forcefully denied doing the things that his wife and his daughter testified to. By
          “forcefully,” I mean it is clear on the record the words he used, but when he used those
          words, he turned intentionally to the jury and said such things as “absolutely not.”

                  When you, [counsel for McGinn], were asking questions, the only explanation of
          how this case is to be resolved is to determine who is telling the truth. There is some
          physical evidence, although the impact of that physical evidence being the photographs is
          disputed. But the overwhelming majority of the evidence that Mr. McGinn committed




                                                       3
argument, the prosecutor again referenced the “lying” testimony, saying “He said that she
was lying to every single thing that makes him [look] bad.”

[¶11] The district court called a recess after the prosecutor’s closing and informed the
parties that it had researched the propriety of the “was she lying” questions and
concluded that “[s]uch questions are improper and the use of them amounts to
misconduct.” Defense counsel then renewed his motion for a mistrial, which the court
denied. When the jury returned, the court advised:

              You will recall that the State asked a number of questions of
              Mr. McGinn, whether he was lying or whether his daughter
              and wife were lying. Those questions were improper. And I
              am instructing you to disregard the questions and the answers.




      these crimes is based upon the testimony of his daughter and his wife.

              The defense spent a large amount of time attempting to demonstrate to the jury
      how much Mr. McGinn loves his daughter, how well they got along, how happy they
      were, the efforts he made to participate in her school events. And his body language was
      such that he—and I will describe that—he was lounging back in the chair, attempting to
      demonstrate a great air of confidence. He was smiling. He was, in my view, smirking.
      He was fidgeting. He was dry-mouthed. He repeatedly took drinks of water. I don’t
      know how much of any [of] that the jury observed or shares. My categorization of those
      observations doesn’t matter.

               Normally, it would be improper for an examining attorney to ask a witness
      whether or not another witness is lying. But in this case, essentially the only evidence in
      this case is the testimony of Mr. McGinn and Ms. Swenson and [K]. And the questions
      directed to Mr. McGinn were worded so that the question was whether he believed his
      daughter was lying. Obviously, the insinuation is, is she lying? And the only explanation
      the defense has is that the two of them are lying.

               Mr. McGinn tried to equivocate saying, “Well, I think that my wife in essence
      put her up to it.” But assuming that’s the case, that would presume that [K] knew it
      wasn’t true but said it anyway, which is equivalent to lying. I believe that . . . the in-
      court-physical circumstances coupled with the unavoidable conclusion that one or the
      other is lying enabled the State to take that stance.

               Understandably, I might have preferred to have those—or that position submitted
      in closing argument rather than in cross-examination. But the jury has to evaluate
      credibility, and the only way they can do that is to determine whether a man who
      professes to love his daughter so much that she is his entire life, how he would explain
      that his daughter would testify in the fashion that she did. I think the State was allowed
      to do that. And I will deny the motion [for a mistrial].




                                                  4
[¶12] The jury acquitted Mr. McGinn of felony child abuse and found him guilty of the
two other charges. He was sentenced to four months for the battery conviction and four
to five years for possession of a weapon with intent to threaten, suspended in favor of
five years of probation. He timely appealed.

                                     STANDARD OF REVIEW

[¶13] We review allegations of prosecutorial misconduct3 under the plain error standard
if there has been no objection at trial. Carroll v. State, 2015 WY 87, ¶ 31, 352 P.3d 251,
259 (Wyo. 2015). Where, as here, there has been an objection below, we apply a
harmless error standard of review.

                Whether such misconduct has been reviewed on the basis of
                harmless error, W.R.Cr.P. 52(a) and W.R.A.P. 9.04, or on the
                basis of plain error, W.R.Cr.P. 52(b) and W.R.A.P. 9.05, this
                Court has focused on whether such error . . . affected the
                accused’s “substantial rights.” The accused’s right to a fair
                trial is a substantial right. Wyo. Const. art. 1, §§ 6, 9, and 10;
                and see, e.g., Jones v. State, 580 P.2d 1150, 1154 (Wyo.
                1978). Before we hold that an error has affected an accused’s
                substantial right, thus requiring reversal of a conviction, we
                must conclude that, based on the entire record, a reasonable
                possibility exists that, in the absence of the error, the verdict
                might have been more favorable to the accused.

White v. State, 2003 WY 163, ¶ 7, 80 P.3d 642, 646 (Wyo. 2003) (quoting Earll v. State,
2001 WY 66, ¶ 9, 29 P.3d 787, 789 (Wyo. 2001)). “To demonstrate harmful error, the
defendant must show prejudice under ‘circumstances which manifest inherent unfairness
and injustice or conduct which offends the public sense of fair play.’” Phillips v. State,
2007 WY 25, ¶ 8, 151 P.3d 1131, 1134 (Wyo. 2007) (quoting Condra v. State, 2004 WY
131, ¶ 7, 100 P.3d 386, 389 (Wyo. 2004)).

                                            DISCUSSION

[¶14] We have held repeatedly that “[a] witness may not comment on the truthfulness or
veracity of another witness.” Barnes v. State, 2011 WY 62, ¶ 11, 249 P.3d 726, 730


3
 We have defined “prosecutorial misconduct” as “[a] prosecutor’s improper or illegal act (or failure to
act), esp. involving an attempt to persuade the jury to wrongly convict a defendant or assess an unjustified
punishment.” Craft v. State, 2013 WY 41, ¶ 13, 298 P.3d 825, 829 (Wyo. 2013) (quoting Black’s Law
Dictionary 1237 (7th ed. 1999)).




                                                     5
(Wyo. 2011); Schreibvogel v. State, 2010 WY 45, ¶ 41, 228 P.3d 874, 888 (Wyo. 2010);
Huff v. State, 992 P.2d 1071, 1079 (Wyo. 1999). It is the province of the jury to weigh
the credibility of witnesses. Beaugureau v. State, 2002 WY 160, ¶ 17, 56 P.3d 626, 636
(Wyo. 2002).

[¶15] It is “misconduct for the prosecutor to cross-examine a defendant using the ‘lying’
or ‘mistaken’ technique (i.e., well, then if ‘so-and-so’ said ‘such-and-such,’ was he
‘mistaken’ or ‘lying?’).” Barnes, ¶ 9, 249 P.3d at 728 (quoting Beaugureau, ¶ 17, 56
P.3d at 635-36). These questions are improper because they “require a defendant to
comment on another witness’ veracity . . . invade the province of the jury, create the risk
that the jury may conclude that, in order to acquit the defendant, it must find that the
other witnesses lied, and distort the state’s burden of proof.” Barnes, ¶ 9, 249 P.3d at
729. See also Proffit v. State, 2008 WY 114, ¶ 15, 193 P.3d 228, 235 (Wyo. 2008);
Talley v. State, 2007 WY 37, ¶ 11, 153 P.3d 256, 260 (Wyo. 2007); Jensen v. State, 2005
WY 85, ¶ 20, 116 P.3d 1088, 1096 (Wyo. 2005). “Society wins not only when the guilty
are convicted but when criminal trials are fair; our system of the administration of justice
suffers when any accused is treated unfairly.” Beaugureau, ¶ 16, 56 P.3d at 634 (quoting
Stephens v. State, 774 P.2d 60, 63 (Wyo. 1989), overruled on other grounds by Large v.
State, 2008 WY 22, ¶ 30, 177 P.3d 807, 816 (Wyo. 2008)).

[¶16] The State concedes that the questioning was improper. It contends, however, that
the error was harmless. To determine whether prosecutorial conduct was harmless, this
Court balances the following factors: “1) the severity and pervasiveness of the
misconduct; 2) the significance of the misconduct to the central issues in the case; 3) the
strength of the State’s evidence; 4) the use of cautionary instructions or other curative
measures; and 5) the extent to which the defense invited the misconduct.” Barnes, ¶ 11,
249 P.3d at 730 (quoting Schreibvogel, ¶ 42, 228 P.3d at 888).

[¶17] First, the misconduct was certainly severe and pervasive. The prosecutor asked
some version of the “was she lying” question more than twenty times4 on cross-
examination, and again referred to it in her closing argument. We have found far fewer
of those questions to be objectionable in our prior cases. Barnes, ¶ 13, 249 P.3d at 731 (6
times); Schreibvogel, ¶ 40, 228 P.3d at 887-88 (3 times); Proffit, ¶¶ 13-14, 193 P.3d at
234-35 (6 times); Talley, ¶ 12, 153 P.3d at 260-61 (5 times); Beaugureau, ¶ 15, 56 P.3d at
633 (3 times).

[¶18] Second, the State argues that the significance of the misconduct to the central issue
in the case is a factor that should weigh in its favor, because the primary focus of the
“was she lying” questions was K’s testimony, which was relevant to the child abuse


4
    We again note that the majority of those questions were asked with the trial court’s approval.




                                                       6
charge of which Mr. McGinn was acquitted. We note that the jury’s decision on the child
abuse charge was not necessarily based on a credibility determination, but may have
resulted from a failure of proof of the “inflicted physical injury” element, as defined in
Wyo. Stat. Ann. § 14-3-202(a)(ii)(B) (LexisNexis 2015) (“any harm to a child including
but not limited to disfigurement, impairment of any bodily organ, skin bruising if greater
in magnitude than minor bruising associated with reasonable corporal punishment,
bleeding, burns, fracture of any bone, subdural hematoma or substantial malnutrition”).

[¶19] The State’s argument overlooks the fact that the real damage caused by the “was
she lying” questions is to make the defendant look bad, especially when the person who
is accused of lying is as sympathetic as K. In Barnes, we recognized that the
“predominant, if not sole, purpose of such questioning is simply to make the defendant
look bad,” and we quoted with favor the Iowa Supreme Court’s statement that:

              Unfairly questioning the defendant simply to make the
              defendant look bad in front of the jury regardless of the
              answer given is not consistent with the prosecutor’s primary
              obligation to seek justice, not simply a conviction. Nor is
              such questioning consistent with the prosecutor’s duty to the
              defendant to ensure a fair trial, including a verdict that rests
              on the evidence and not on passion or prejudice.

Barnes, ¶ 9, 249 P.3d at 729 (quoting State v. Graves, 668 N.W.2d 860, 873 (Iowa
2003)).

[¶20] This case, as the State concedes, “depended on which witness was credible to the
jury.” As the trial court noted: “There is some physical evidence, although the impact of
that physical evidence being the photographs is disputed. But the overwhelming majority
of the evidence that Mr. McGinn committed these crimes is based upon the testimony of
his daughter and his wife.” If Mr. McGinn’s credibility was diminished by the “was she
lying” questions, it was diminished for all purposes. The effect of making Mr. McGinn
look bad could not be confined to the particular charge about which he was being
questioned, but necessarily injected prejudice into the jury’s consideration of all of the
charges. We therefore find the second factor weighs against the State.

[¶21] Third, we consider the strength of the State’s evidence. As mentioned above,
there was very little physical evidence and the decision rested on the witnesses’
credibility. The district court, in explaining its reasons for allowing the “was she lying”
questions, included its belief that “the state of the evidence is such that there is not much
else to support the State’s claims other than the testimony of Ms. Swenson and [K].”
Under these circumstances, this factor also weighs against the State.

[¶22] Fourth, we consider whether the district court’s curative instructions were


                                             7
sufficient to cure the error. The district court overruled defense counsel’s objections to
the first series of the “was she lying” questions. After several more of those questions
and a renewed objection, the court sustained the objection, and then gave an instruction
that seemed only to add to the confusion. See supra ¶ 9.

[¶23] The instruction did not address the fundamental impropriety of the “was she lying”
questions and did not cure the error. The prosecutor then proceeded to ask further
questions in the same vein and again referred to the lying testimony in her closing. Only
after the prosecution’s closing did the district court inform the jury that those questions
were improper and instruct them to disregard those questions.

[¶24] The State contends that the judge’s instruction, along with the standard jury
instructions that informed the jury that it is the province of the jury to make
determinations of credibility, to determine the issues of fact, and to disregard matters that
the judge orders to be stricken, is adequate to cure the error. We disagree. The pervasive
nature of the objectionable questions and the lapse in time between the questions and the
curative instruction compel the conclusion that the damage done could not be undone.
These facts are in stark contrast to Beaugureau, in which the prosecutor asked three
improper “was s/he lying” questions, and each time defense counsel’s objection was
immediately sustained by the trial court. Id., ¶ 15, 56 P.3d at 633. Further, in this case,
the instruction to jurors to disregard matters stricken is of limited utility when the damage
was not as to any fact, but rather was in the impression created of a defendant who
repeatedly accused his young daughter of lying.

[¶25] Finally, we look to the extent to which the defendant invited the conduct. It is
difficult to conceive of a situation in which prosecutorial misconduct would be justified
by any action taken by the defendant; however, we need only decide here that Mr.
McGinn’s assertion of a different version of events than that testified to by Ms. Swenson
and K is not a sufficient basis for finding that he invited such questions. Different stories
requiring a jury to determine the credibility of witnesses are the norm, and do not justify
use of “was she lying” questions.

[¶26] In sum, use of the improper questions was pervasive; it was intended to undermine
the credibility of the defendant in a case where credibility was the central issue. The
State’s case was not strong and efforts to cure the error came too late and were
ineffective. Appellant did not invite the error and defense counsel interposed timely
objections to the improper questions. Based upon the foregoing, we must conclude that
the error was prejudicial. There is a reasonable possibility that, absent the error caused
by the “was she lying” questions, the verdict might have been more favorable to Mr.
McGinn. Mr. McGinn’s conviction must be reversed.

[¶27] Before leaving the subject of prosecutorial misconduct, we find it worthwhile to
comment on Appellant’s request that we depart from our precedent requiring an appellant


                                             8
to establish that he was prejudiced by the misconduct. He contends that we should
require the State to establish a lack of prejudice when prosecutorial misconduct has
occurred. Because we conclude that Appellant would have prevailed under either
standard, resolution of this issue does not impact the outcome of the present case.
Nonetheless, in the interest of providing guidance for future cases, it seems prudent to
comment briefly on the merits of the approach urged by Appellant.

[¶28] Appellant’s suggestion that we depart from our precedent implicates the doctrine
of stare decisis. Under that doctrine, departure should occur only upon due reflection and
only if we are convinced that it is necessary to “vindicate plain, obvious principles of law
and remedy continued injustice.” Borns v. Voss, 2003 WY 74, ¶ 26, 70 P.3d 262, 271
(Wyo. 2003). In other words, we should depart from our precedent only when there is
good reason to do so. Appellant has failed to convince us that departure from our
precedent is warranted.

[¶29] Appellant relies principally upon Justice Voigt’s concurring opinion in
Schreibvogel, ¶ 52, 228 P.3d at 890. The sole justification for shifting the burden, as
suggested in that opinion, was the possibility of deterrence. According to Justice Voigt,
“[p]erhaps the State would pay attention to the law if it bore the burden of proof as to the
lack of prejudice.” Id. If changing the burden of establishing prejudice would eliminate
the problem, we would perhaps be inclined to take that step. From our perspective,
however, the deterrent effect of such a change is highly questionable.

[¶30] Our precedent unequivocally prohibits use of “were they lying” questions by a
prosecutor. We have previously reversed convictions for prosecutorial misconduct
identical to the conduct at issue here. If the threat of reversal will not deter the
misconduct, shifting the burden of establishing prejudice on appeal is unlikely to have
any effect on this behavior. Shifting the burden cannot dissuade the prosecutor who is
unaware of our precedent. Shifting the burden is also unlikely to deter the prosecutor
who knows such questions are improper but chooses to ask them anyway. We are left
unconvinced that changing the burden would have any impact on prosecutorial behavior.

[¶31] It should also be noted that Appellant is seeking a special harmless error rule only
for prosecutorial misconduct. He is not claiming that we should change the burden of
establishing prejudice in other cases involving a harmless error analysis. He has not cited
to any authority from any jurisdiction that supports his position.

[¶32] In general, there are two approaches to addressing the element of prejudice in a
nonconstitutional harmless error analysis.5 Some jurisdictions, including Wyoming,


5
    Where the alleged error is of constitutional magnitude the burden is on the prosecution to convince this




                                                      9
place the burden on the appellant to establish prejudice. Others place the burden on the
party seeking to benefit from the error to establish a lack of prejudice. 6 24 C.J.S.
Criminal Law § 2384. Regardless of which approach is utilized, courts apply the same
burden whether the error is classified as procedural, evidentiary, prosecutorial
misconduct, or some other form of nonconstitutional error.

[¶33] Under the approach urged by Appellant, the burden of establishing prejudice
would remain with Appellant if the error was classified as “evidentiary.” If deemed to be
prosecutorial misconduct, the burden would be on the State to establish a lack of
prejudice. However, not every “evidentiary error which favors the State would be
considered prosecutorial misconduct.” Craft, ¶ 13, 298 P.3d at 829.7 Absent some
deterrent effect, there is nothing to be gained by treating prosecutorial misconduct
harmless error differently than other forms of nonconstitutional harmless error. A
consistent approach, applying the same analysis to all forms of nonconstitutional
harmless error is preferable. The focus should be on the effect of the error, not the
classification of the error.8

[¶34] Although we need not address any further issues, because it is likely to arise again
on remand, we will comment on the admissibility of uncharged misconduct evidence.
When there has been an objection, this Court reviews challenges to the admission of
evidence for an abuse of discretion. Cardenas v. State, 2014 WY 92, ¶ 7, 330 P.3d 808,
810 (Wyo. 2014). A trial court’s ruling on the admissibility of uncharged misconduct
evidence is entitled to considerable deference, “‘and, as long as there exists a legitimate
basis for the trial court’s ruling, that ruling will not be disturbed on appeal.’” Id. (quoting
Gonzalez-Ochoa v. State, 2014 WY 14, ¶ 11, 317 P.3d 599, 603 (Wyo. 2014)). “A trial
court abuses its discretion when it could not have reasonably concluded as it did.”
Bromley v. State, 2007 WY 20, ¶ 8, 150 P.3d 1202, 1206-07 (Wyo. 2007). “In this
context, ‘reasonably’ means sound judgment exercised with regard to what is right under


Court beyond a reasonable doubt that the error was harmless. Vigil v. State, 2004 WY 110, ¶ 19, 98 P.3d
172, 179 (Wyo. 2004); Campbell v. State, 589 P.2d 358, 367 (Wyo. 1979).
6
    Most of the cases cited in the concurring opinion are from jurisdictions that utilize this approach.
7
  In this case, the issue could have been avoided if the district court had sustained the initial objection to
the improper questioning. Arguably, the error claimed by Appellant could be deemed evidentiary and the
issue stated: “Did the district court abuse its discretion in permitting the prosecutor to ask improper
questions?” See, e.g., Issue 2 as stated by Appellant: “If the prosecutor engaged in misconduct, should
the Appellant have to prove prejudice, or should the [S]tate be required to prove that the Appellant was
not prejudiced?”
8
  Whether we should join those jurisdictions that place the burden on the party benefitting from the error,
regardless of the type of harmless error, is not a question that is before us.




                                                       10
the circumstances and without being arbitrary or capricious.” Id., ¶ 8, 150 P.3d at 1207
(citing Thomas v. State, 2006 WY 34, ¶ 10, 131 P.3d 348, 352 (Wyo. 2006)). “Even if a
district court abused its discretion in admitting uncharged misconduct evidence, we must
also determine whether the error was prejudicial.” Mersereau v. State, 2012 WY 125, ¶
17, 286 P.3d 97, 106 (Wyo. 2012) (citing Rolle v. State, 2010 WY 100, ¶ 9, 236 P.3d
259, 264 (Wyo. 2010)). “Error is prejudicial if there is a reasonable possibility that the
verdict might have been more favorable to the defendant if the error had not been made.”
Mersereau, ¶ 17, 286 P.3d at 106.

[¶35] In Gleason, we outlined the “mandatory procedure” first set forth in Vigil v. State,
926 P.2d 351, 357 (Wyo. 1996), for testing the admissibility of uncharged misconduct
evidence:

               (1) the evidence must be offered for a proper purpose; (2) the
               evidence must be relevant; (3) the probative value of the
               evidence must not be substantially outweighed by its potential
               for unfair prejudice; and (4) upon request, the trial court must
               instruct the jury that the similar acts evidence is to be
               considered only for the proper purpose for which it was
               admitted.

Gleason v. State, 2002 WY 161, ¶ 18, 57 P.3d 332, 340 (Wyo. 2002). We further noted
that the test is not to be used in appellate review; “rather, it is intended to be conducted
by the trial court.” Id.

[¶36] Mr. McGinn filed Defendant’s Motion to Require Specific Statement of 404(b)
Evidence and Demand for Hearing on November 13, 2013.9 In response, the State filed
its Notice of Specific Instances of Conduct under W.R.E. 404(b), which included the
following:

               Ms. Swenson will testify that in the Spring of 2012, when the
               Defendant threatened her with a gun, he shot it off an inch
               from her face and called it a “misfire,” although she believes
               he did it to scare her.

The State’s pleading also included an extensive “Proper Purpose Analysis” in support of
the admission of 404(b) evidence.



9
 Such a motion is treated as a timely objection to 404(b) evidence. Howard v. State, 2002 WY 40, ¶ 23, 42
P.3d 483, 491 (Wyo. 2002).




                                                  11
[¶37] The district court held a motion hearing December 16, 2013, at which a number of
issues were discussed, including the 404(b) issue pertaining to the spring 2012 discharge.
At the hearing, the district court stated:

                     Well, I’m – of course, we all struggle, but the law –
             and very properly has evolved as to 404(b) so that notice is
             given, objections are assumed, placing the proponent of such
             evidence in a position, especially if it’s a criminal case, and
             it’s the prosecutor, of proving up the need. It then evolved to
             not only a list of factors, but eventually into a requirement
             that we not only conduct such a hearing, but if I’m going to
             allow it, I have to make findings. And all that’s fine, but then
             we’re still here. Maybe it comes up in cross-examination.
             Maybe it doesn’t. Maybe it is made relevant following the
             testimony of witnesses.

                    Maybe the Defendant even testifies. Of course, that
             places his character under 404(a) maybe, but certainly –
             certainly not until then, and you might have five witnesses
             that aren’t him that don’t say anything about character. So it
             has become my practice to hear from you all, make the
             findings necessary to get us to the start of the trial, and
             caution you, and I’ll caution you now, and you might get it in
             an order as well, that the rulings of the Court are fact and
             maybe even witness specific. So [defense counsel] has to
             worry that – and plan accordingly, that it might – we might be
             arguing this at a bench conference at some point during the
             trial.

[¶38] The Order that was issued January 15, 2014, contained the following:

             IT IS FURTHER ORDERED THAT the Defendant’s
             resistance to the States’ [sic] notice of evidence to be
             admitted pursuant to Rule 404(b) of the W.R.E. is a sufficient
             objection to the use of that evidence, and that noticed
             evidence will not be permitted in the States [sic] case in chief
             at trial with the exception of evidence of the Defendant’s
             prior use and habits concerning his firearm as such evidence
             relates to the issue of intent as required to be proven in Count
             III.

[¶39] At trial, Ms. Swenson testified about the spring 2012 discharge without further
objection. The district court’s order identifies the purpose for admission of the 2012


                                           12
discharge evidence, finding that it “relates to the issue of intent.” We can also glean from
the hearing transcript that the district court recognized that the evidence was relevant, and
that the evidence had a prejudicial effect. 10 The jury was instructed that it should
consider prior acts evidence “only on the issue of the Defendant’s intent.” We can find
nowhere in the record, however, any weighing by the district court of the probative
versus prejudicial value of the evidence. In Gleason, we set forth a comprehensive list of
factors that the trial court should consider in determining the probative value of prior bad
acts evidence. Id., ¶ 27, 57 P.3d at 342. Although we recognized that “express findings
on each factor are not necessary, abuse of discretion, or the lack thereof, cannot be
determined by reviewing a record that contains no information as to how that discretion
was exercised.” Id., ¶ 28, 57 P.3d at 343 (emphasis in original). Recently, in Carroll,
352 P.3d 251, we reviewed a challenge to the trial court’s decision allowing evidence of
the appellant’s prior convictions. After describing the district court’s thorough analysis
of each of the Gleason factors, Id., ¶¶ 13-16, 352 P.3d at 255-56, we concluded that
“[t]he district court’s thoughtful discussion documents a reasonable decision based on
sound judgment.” Id., ¶ 17, 352 P.3d at 256. No such discussion appears in this record.
The absence of appropriate findings and discussion hinders review of the district court’s
decision to admit the evidence. On remand, the district court should weigh the uncharged
misconduct evidence and, if it deems the evidence admissible, provide an explanation for
its decision in accordance with the law discussed.

[¶40] We reverse and remand to the district court for further proceedings in
conformance with this opinion.




10
     The court stated as follows:

           And that misfire, pretty dramatic thing to set a gun off next to someone’s head, and dry
           firing through a door during prior violent incidents, or prior confrontations goes straight
           to intent. It’s almost like it’s almost – you can almost not doubt the relevance. It’s just,
           as you said, like the conduct is ten times worse than what he did on this day.




                                                       13
FOX, Justice, specially concurring, in which KITE, Justice (Ret.), joins.

[¶41] I concur in the result, but I write separately because I believe the burden of
demonstrating harmless error from prosecutorial misconduct should be on the beneficiary
of the error.

[¶42] The United States Supreme Court has imposed the burden to demonstrate harmless
error on the prosecution for many years. See, e.g., Kotteakos v. United States, 328 U.S.
750, 760, 66 S.Ct. 1239, 1246, 90 L.Ed. 1557 (1946) (“If the error is of such a character
that its natural effect is to prejudice a litigant’s substantial rights, the burden of sustaining
a verdict will . . . rest upon the one who claims under it.”). “[L]ater cases have made it
clear that, unlike plain error analysis that places on the defendant the burden of
demonstrating prejudice, harmless error requires the prosecutor to disprove prejudice.”
3B Charles A. Wright et al., Federal Practice and Procedure § 854, at 506 (4th ed.
2013).

[¶43] Federal courts distinguish between the burden of showing harmless error under
F.R.Cr.P. 52(a), which is imposed on the government, and the burden of showing
prejudice occurred under the F.R.Cr.P. 52(b) 11 plain error standard, in which case it “is
the defendant rather than the Government who bears the burden of persuasion with
respect to prejudice.” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 1778,
123 L.Ed.2d 508 (1993) (applying the plain error standard). See also United States v.
Fleming, 667 F.3d 1098, 1103 (10th Cir. 2011) (“[W]hen a defendant fails to object to an
allegedly improper statement during trial, we will ‘review only for plain error and it is the
defendant rather than the Government who bears the burden of persuasion with respect to
prejudice.’” (citation omitted)). When, as here, a timely objection has been made by the
defendant, the burden should shift to the State to show that the prosecutorial misconduct
did not result in prejudice to the defendant.

[¶44] Several state courts also allocate the burden to the prosecution to show that
nonconstitutional error was harmless. See, e.g., State v. Dolloff, 58 A.3d 1032, 1043 (Me.
2012) (The State must persuade us that “it is highly probable that the jury’s determination
of guilt was unaffected by the prosecutor’s comments.”); State v. Akins, 315 P.3d 868,
882 (Kan. 2014) (“The State bears the burden of proving the misconduct was harmless
error.”); State v. Hill, 801 N.W.2d 646, 654 (Minn. 2011) (“[T]he State bears the burden
of persuasion on claims of prosecutorial misconduct to demonstrate that ‘the misconduct


11
  W.R.Cr.P. 52 is substantially identical to the federal rule. Pena v. State, 2013 WY 4, ¶ 48, 294 P.3d 13,
22 (Wyo. 2013) (“In construing Wyoming rules of procedure, where Wyoming and federal rules of
procedure are similar, we have repeatedly looked to federal cases construing the federal rule as persuasive
authority.” (citation omitted)).




                                                    14
did not affect substantial rights.’” (citation omitted)); Guzman v. State, 868 So.2d 498,
507 (Fla. 2003) (“[O]nce a defendant has established that the prosecutor knowingly
presented false testimony at trial, the State bears the burden to show that the false
evidence was not material[.]”).

[¶45] Justice Voigt (then Chief Justice) suggested this approach in his special concurrence
in Schreibvogel v. State, 2010 WY 45, 228 P.3d 874 (Wyo. 2010):

                     I concur in the result reached by the majority because
              stare decisis requires us to place upon the appellant the
              impossible task of proving prejudice in cases such as this.
              The majority states the well-established law in Wyoming: “It
              is error and misconduct for a prosecutor to ask a witness
              whether he thinks other witnesses are ‘lying’ or ‘mistaken.’”
              Yet the prosecutor in this case asked the appellant not once,
              but three times, whether another witness—the bartender, the
              victim, and the cellmate—was incorrect or mistaken. Perhaps
              the State would pay attention to the law if it bore the burden
              of proof as to the lack of prejudice.

                     ....

                     My concern is that, while the harmless error rule
              certainly makes sense as a reasonable systemic tool, its actual
              application via a process that requires each appellant to prove
              that he or she has been prejudiced by prosecutorial
              misconduct, leaves the State nearly unfettered in its ability to
              do as it pleases, this Court’s opinions to the contrary
              notwithstanding.

Id. at ¶¶ 52, 54, 228 P.3d at 890-91 (Voigt, C.J., specially concurring) (citations omitted).
The Court again signaled its interest in shifting the burden in such cases in Barnes v. State,
2011 WY 62, ¶ 12, 249 P.3d 726, 730-31 (Wyo. 2011).

[¶46] This Court has previously allocated the burden to the State of showing harmless
error beyond a reasonable doubt in cases of constitutional error. “The Chapman standard
requires the appellate court to be convinced beyond a reasonable doubt no reasonable
possibility exists that the error contributed to the jury’s determination.” Vigil v. State,
2004 WY 110, ¶ 21, 98 P.3d 172, 180 (Wyo. 2004) (citing Chapman v. California, 386
U.S. 18, 23-26, 87 S.Ct. 824, 827-29, 17 L.Ed.2d 705 (1967)). There are two different
standards of review for harmlessness, “one for nonconstitutional errors and one for errors
of constitutional dimension.” United States v. Powell, 334 F.3d 42, 45 (D.C. Cir. 2003).
Under federal law, “[u]nder both standards, the burden is on the government to


                                            15
demonstrate that the error was harmless.” United States v. Whitmore, 359 F.3d 609, 622
(D.C. Cir. 2004).

[¶47] I would allocate the burden to the State to demonstrate the error was harmless in
cases of prosecutorial misconduct involving a nonconstitutional error, although I would
not require it to make that showing beyond a reasonable doubt. Nonconstitutional errors
are harmless “unless the error had a substantial influence on the outcome of the
proceeding or leaves one in grave doubt as to whether it had such effect.” United States
v. Thompson, 287 F.3d 1244, 1253 (10th Cir. 2002) (citing United States v. Rivera, 900
F.2d 1462, 1469 (10th Cir. 1990)); see also Kotteakos, 328 U.S. at 765, 66 S.Ct. at 1248
(“[I]f one cannot say, with fair assurance, after pondering all that happened without
stripping the erroneous action from the whole, that the judgment was not substantially
swayed by the error, it is impossible to conclude that substantial rights were not affected.
The inquiry cannot be merely whether there was enough to support the result, apart from
the phase affected by the error. It is rather, even so, whether the error itself had
substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.”).

[¶48] There is no dispute in this case that “was she lying” questions constituted
prosecutorial misconduct. Our precedent is clear on that point, and the State concedes it.
Barnes, 2011 WY 62, ¶ 9, 249 P.3d at 728-29 (It is “misconduct for the prosecutor to
cross-examine a defendant using the ‘lying’ or ‘mistaken’ technique (i.e., well, then if ‘so-
and-so’ said ‘such-and-such,’ was he ‘mistaken’ or ‘lying?’)”) (quoting Beaugureau v.
State, 2002 WY 160, ¶ 17, 56 P.3d 626, 636 (Wyo. 2002)). See also ABA Standards for
Criminal Justice Prosecution Function and Defense Function, Standard 3-5.6(b), at 101
(3d ed. 1993):12

               A prosecutor should not knowingly and for the purpose of
               bringing inadmissible matter to the attention of the judge or
               jury offer inadmissible evidence, ask legally objectionable
               questions, or make other impermissible comments or
               arguments in the presence of the judge or jury.

[¶49] “Prosecutorial misconduct claims are not intended to provide an avenue for tactical
sandbagging of the trial courts, but rather, to address gross prosecutorial improprieties that
have deprived a criminal defendant of his or her right to a fair trial.” 21 Am. Jur. 2d
Prosecutorial Misconduct § 429, at 545 (2008). We have defined “prosecutorial


12
  We have previously adopted the broad guidelines found in the ABA Standards. Moe v. State, 2005 WY
58, ¶ 20, 110 P.3d 1206, 1214 (Wyo. 2005).




                                                16
misconduct” as “[a] prosecutor’s improper or illegal act (or failure to act), esp. involving
an attempt to persuade the jury to wrongly convict a defendant or assess an unjustified
punishment.” Craft v. State, 2013 WY 41, ¶ 13, 298 P.3d 825, 829 (Wyo. 2013) (quoting
Black’s Law Dictionary 1237 (7th ed. 1999)). We also affirmed that not every “evidentiary
error which favors the State would be considered prosecutorial misconduct.” Id.

[¶50] Other courts have recognized that prosecutorial misconduct is something more
than an evidentiary error: United States v. Walton, No. ARMY 20011151, 2007 WL
7264761, at *1 (Army Ct.Crim.App. May 3, 2007) (“Prosecutorial misconduct can be
generally defined as action or inaction by a prosecutor in violation of some legal norm or
standard, e.g., a constitutional provision, a statute, a Manual rule, or an applicable
professional ethics canon.” (citation omitted)); State v. Ramey, 721 N.W.2d 294, 299-300
(Minn. 2006) (“ conduct the prosecutor should know is improper”); State v. Inkelaar, 264
P.3d 81, 93 (Kan. 2011) (Appellate court first determines if prosecutor’s questions were
proper, then “reviews (1) whether the misconduct was gross and flagrant, (2) whether the
misconduct showed ill will on the prosecutor’s part, and (3) whether the evidence was of
such a direct and overwhelming nature that the misconduct would likely have had little
weight in the minds of jurors.”).

[¶51] There is a solid body of Wyoming case law establishing the type of conduct that
constitutes prosecutorial misconduct, which typically falls into a handful of types of
conduct:

             [W]e have said that prosecutors are not to inject into the trial
             their personal beliefs as to the credibility of the evidence.
             Moe [v. State], 2005 WY 58, ¶ 21, 110 P.3d [1206,] 1214
             [(Wyo. 2005)]; and Lane [v. State], 12 P.3d [1057,] 1065
             [(Wyo. 2000)]. We have also repeatedly said that prosecutors
             should not suggest that a defendant carries any burden of
             proof. Id. at 1066 (citing Harper v. State, 970 P.2d 400, 405
             (Wyo. 1998)). And it is not appropriate for a prosecutor to
             argue to a jury that it is the jury’s duty to convict the
             defendant. Lafond v. State, 2004 WY 51, ¶ 25, 89 P.3d 324,
             332 (Wyo. 2004); Burton v. State, 2002 WY 71, ¶ 50, 46 P.3d
             309, 321 (Wyo. 2002); see also [United States v.] Sanchez,
             176 F.3d [1214,] 1224 [(9th Cir. 1999)].

Seymore v. State, 2007 WY 32, ¶ 20, 152 P.3d 401, 410 (Wyo. 2007), abrogated by
Granzer v. State, 2008 WY 118, 193 P.3d 266 (Wyo. 2008). It is prosecutorial
misconduct: to vouch for the credibility of witnesses, Fennell v. State, 2015 WY 67,
¶¶31-44, 350 P.3d 710, 719-26 (Wyo. 2015); to ask the jury to convict a defendant for
any reason other than the evidence before it, Mazurek v. State, 10 P.3d 531, 542 (Wyo.
2000); to comment upon an accused’s silence “when used to the state’s advantage either


                                           17
as substantive evidence of guilt or to suggest to the jury that the silence was an admission
of guilt,” Abeyta v. State, 2003 WY 136, ¶ 11, 78 P.3d 664, 667 (Wyo. 2003) (citation
omitted); to suggest that he has independent knowledge of facts that could not be
presented to the jury, Talley v. State, 2007 WY 37, ¶ 21, 153 P.3d 256, 263 (Wyo. 2007);
to use voir dire to prove the elements of the case or to invite the jury to emotionally
sympathize with the victim, Law v. State, 2004 WY 111, ¶ 34, 98 P.3d 181, 194 (Wyo.
2004); to “launch personal attacks against defense counsel to inflame the passions and
prejudices of the jury,” Lafond v. State, 2004 WY 51, ¶ 39, 89 P.3d 324, 336-37 (Wyo.
2004) (citation omitted); to ask the jury to place themselves in the position of the victim,
Trujillo v. State, 2002 WY 51, ¶ 13, 44 P.3d 22, 27 (Wyo. 2002); to intentionally misstate
the evidence, Bustos v. State, 2008 WY 37, ¶ 9, 180 P.3d 904, 907 (Wyo. 2008); to
suggest the jury should consider the defendant’s fate rather than focusing on its fact
finding responsibility, Haynes v. State, 2008 WY 75, ¶¶ 26-28, 186 P.3d 1204, 1210-11
(Wyo. 2008); and to ask “was she lying” questions (see majority opinion at ¶17).

[¶52] While this list is not exhaustive, what we can conclude is that the type of conduct
we have found to constitute prosecutorial misconduct all falls into the general category of
conduct that the prosecutor knew or should have known would deprive the defendant of
the right to a fair trial; and we have had no difficulties in distinguishing between such
clearly egregious prosecutorial misconduct and mere evidentiary errors.

[¶53] I believe the courts are up to the task of identifying prosecutorial misconduct, and
that our objective of providing fair trials is best served in cases of prosecutorial
misconduct by imposing the burden on the State to demonstrate the error was harmless. I
recognize the difficulty for the prosecutor in this case, who proceeded to ask the improper
questions after the district court had overruled defense counsel’s objections and
seemingly authorized the misconduct. However, it is the prosecutor’s duty to “seek
justice, not merely to convict.” ABA Standards for Criminal Justice Prosecution
Function and Defense Function, Standard 3-1.2(c), at 4 (3d ed. 1993). As the United
States Supreme Court has noted with respect to the United States Attorney’s prosecutorial
duty:

                     The United States Attorney is the representative not of
              an ordinary party to a controversy, but of a sovereignty whose
              obligation to govern impartially is as compelling as its
              obligation to govern at all; and whose interest, therefore, in a
              criminal prosecution is not that it shall win a case, but that
              justice shall be done. As such, he is in a peculiar and very
              definite sense the servant of the law, the twofold aim of
              which is that guilt shall not escape or innocence suffer. He
              may prosecute with earnestness and vigor-indeed, he should
              do so. But, while he may strike hard blows, he is not at
              liberty to strike foul ones. It is as much his duty to refrain


                                            18
             from improper methods calculated to produce a wrongful
             conviction as it is to use every legitimate means to bring
             about a just one.

Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935),
overruled on other grounds by Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4
L.Ed.2d 252 (1960)). See also Lawson v. State, 2010 WY 145, ¶ 20, 242 P.3d 993, 1000
(Wyo. 2010) (“The right to a fair trial, guaranteed to state criminal defendants by the Due
Process Clause of the Fourteenth Amendment, imposes on States certain duties consistent
with their sovereign obligation to ensure ‘that justice shall be done’ in all criminal
prosecutions.”) (quoting Cone v. Bell, 556 U.S. 449, 451, 129 S.Ct. 1769, 1772, 173
L.Ed.2d 701 (2009)); Beaugureau, 2002 WY 160, ¶ 16, 56 P.3d at 634 (“Society wins not
only when the guilty are convicted but when criminal trials are fair; our system of the
administration of justice suffers when any accused is treated unfairly.” (citation
omitted)).

[¶54] If we held that misconduct could be cleansed by the trial court’s erroneous approval,
we would be sending the message that misconduct is acceptable if the prosecutor can get
away with it. That would be the wrong message. The prosecutor’s duty is to seek justice
and to win trials only when justice is served. Shifting the burden of demonstrating lack of
prejudice to the State in cases of prosecutorial misconduct where appropriate objection has
been made is consistent with that duty.




                                            19
