               IN THE SUPREME COURT, STATE OF WYOMING

                                         2016 WY 7

                                                          OCTOBER TERM, A.D. 2015

                                                                  January 20, 2016
STEVEN W. VAUGHT,

Appellant
(Defendant),

v.                                                   S-15-0130

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                   Appeal from the District Court of Campbell County
                      The Honorable Thomas W. Rumpke, Judge

Representing Appellant:
      Office of the Public Defender: Diane Lozano, State Public Defender; Tina N.
      Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate
      Counsel. Argument by Mr. Morgan.

Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Caitlyn F.
      Young, Assistant Attorney General; Darrell D. Jackson, Faculty Director,
      Bradford H. Coates, Student Director, and Jonathon M. Lebsack, Student Intern,
      of the Prosecution Assistance Program. Argument by Mr. Lebsack.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.


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.
DAVIS, Justice.

[¶1] Steven Vaught appeals convictions for two counts of first-degree sexual assault
under Wyo. Stat. Ann. § 6-2-302(a)(ii) and one count of kidnapping under Wyo. Stat.
Ann. § 6-2-201(a)(iii), (d).1 We affirm.

                                              ISSUES

[¶2] Vaught raises two issues relating to jury instructions, which we condense as
follows:

               I.     Did the district court commit plain error by failing to
               instruct the jury that confinement would not support a
               kidnapping conviction unless it was separate from and not
               merely an incident of the sexual assaults?2

               II.    Did the district court’s reply to a question from the
               jury that the jurors should reread the instructions already
               given amount to plain error?

                                              FACTS

[¶3] Vaught and his wife-to-be started dating in early April of 2013, began living
together approximately a month later, and married on September 13, 2013. The events
leading to Vaught’s prosecution and conviction took place on January 15, 2014. Prior to
that morning, he had never been violent with his spouse. However, earlier that month he
became severely depressed, and despite taking the medication prescribed for his
condition, he found himself frequently contemplating suicide.

[¶4] At approximately 4:00 a.m. on January 15, Vaught’s wife arose because he had
been crowding her out of bed, and then went to the kitchen. While she was leaning on a
counter top and looking out the window in the dark, the kitchen lights came on, and
Vaught, who is six feet four inches tall and weighs three hundred pounds, rushed up to
her, forced duct tape over her mouth, knocked her legs out from under her, rolled her to
the floor, and pressed his forearm on her neck until she had to struggle to breathe. With
an angry look, he told her not to scream and that “you’ve made me do this. You’ve

1
  One sexual assault charge pertained to oral sex, the second to intercourse. In both instances, he
allegedly overcame his wife by threat of death, serious bodily injury, extreme physical pain, or
kidnapping. He allegedly committed the acts constituting a kidnapping by confining his victim with the
intent to inflict bodily injury on her or terrorize her.
2
  Both parties to this appeal refer to the proposition that would form the substance of the desired
instruction as the “incidental rule.” For the sake of convenience only, and without intending to lend
credence to the alleged existence or scope of such a rule, we will likewise employ that term.


                                                   1
forced me into this.” He then informed her that he was going to tie her to the bed, kill
her, and then kill himself.

[¶5] Vaught then pulled his wife from the floor, removed the duct tape, and ushered her
to the bedroom, where at his instruction she removed her pajamas and got into bed.
Vaught joined her and the two talked for nearly an hour. Believing that he intended to
kill her, she apologized for offending and belittling him during an argument they had the
evening before, and also told him that she was wrong and that he had every right to be
mad. She promised that if he let her go, she would never tell anyone about what had
taken place earlier in the kitchen.

[¶6] She tried to get him to change his lethal plan by telling him she loved him and
would do anything to prove it. She ultimately performed oral sex and engaged in
intercourse due to his threat to kill her. Afterward she asked him if he felt better about
their relationship. Vaught said he did not believe her, evidently referring to her
statements that she loved him and would not report the incident. He then lifted the
pillows on the bed to show the boot laces he had secured to both sides of the bed for the
purpose of lashing her to it.

[¶7] A few moments later, she asked him to “let [her] make [him] one last meal.”
When he assented, she went to the kitchen, turned on the stove, and cracked three eggs
into a skillet. She then asked if he wanted toast, which Vaught declined. With the eggs
frying and out of sight of the bedroom where Vaught remained, she secured a small
blanket and some slip-on shoes from near a couch. Thus attired, she slipped out the front
door and sought help from her neighbors, who provided her sanctuary and called the
Gillette Police Department.

[¶8] Vaught heard the front door close and assumed the police would soon be looking
for him. Consequently, he dressed and locked and barricaded the front door with a chair
wedged under the knob before leaving the second-floor apartment through a bedroom
window and driving away. He was arrested later that day.

[¶9] Vaught claims that the acts alleged to constitute a kidnapping were merely
incidental to the sexual assaults described above, and could not constitute a separate
crime. However, this claimed “incidental rule” played no part in his trial. No one ever
alluded to it, Vaught offered no instruction that even remotely reflected the rule of which
he now claims the jury should have been informed, and such a rule was never mentioned
in a motion for judgment of acquittal or for a new trial.

[¶10] His second issue relates to a question posed by the jury during its deliberations.
The jury indicated, “We need clarification on count 3 and lesser charges; the courts’ [sic]
interpretation/definitions of #s 15, 22, 23.” Count 3 was the kidnapping charge, and
Instruction Nos. 15, 22, and 23 were the elements instructions for, respectively,


                                             2
kidnapping and the lesser-included offenses of false imprisonment and felonious
restraint.3

[¶11] The district court asked the prosecutor and defense counsel how it should respond
to the question. The prosecutor noted “they’ve been instructed and I think that they need
to read the packet and be encouraged to read the package.” Defense counsel then said, “I
agree, Your Honor. Read the instructions and then instructions have been provided and
whatever standard language the court uses for this kind of inquiry.” The judge confirmed
that counsel wanted him to instruct “the jury to review again all of the instructions that
were previously provided to the jury by the court,” which he then did. No one challenged
the instruction as being contrary to what the court was asked to do after it was given.

[¶12] Vaught was convicted on all three charged counts. The district court sentenced
him to twenty to forty years imprisonment on each of the sexual assault convictions, and
to fifty-five to sixty-two years for the kidnapping conviction, with all sentences to run
concurrently. Vaught timely perfected his appeal.

                                           DISCUSSION

The “Incidental Rule”

[¶13] Vaught contends that the district court erred in failing to instruct the jury on what
he calls the “incidental rule.” He concedes that because he never offered such an
instruction or otherwise brought the alleged rule to the court’s attention, he can obtain a
reversal of his conviction only if he can show that the court’s failure to give that
instruction amounted to plain error.

[¶14] To prevail, he must establish by reference to the record that a clear and obvious
violation of a clear and unequivocal rule of law adversely affected a substantial right to
such a degree that he was materially prejudiced. To show material prejudice, Vaught
must demonstrate a reasonable possibility that the jury verdict would have been more
favorable in the absence of the error. Kovach v. State, 2013 WY 46, ¶ 79, 299 P.3d 97,
122 (Wyo. 2013). To establish that failure to give the instruction violated a clear rule of
law, he must provide authority showing that, at the time of his trial, Wyoming law had a
clear-cut requirement that juries be given the instruction he now champions.4 Causey v.
State, 2009 WY 111, ¶¶ 20-21, 215 P.3d 287, 293-94 (Wyo. 2009).

3
  Those offenses were listed in their more usual and sensible order—descending from the most to the least
serious—in the verdict form.
4
  Vaught framed his first issue on appeal in terms of a failure to give what is claimed to be a required
instruction on the “incidental rule,” but the arguments of both parties appear to be directed more to the
question of whether the substantive “incidental rule” has been clearly and unambiguously adopted in
Wyoming. Although the two questions are without a doubt related, adoption of the substantive rule
would not necessarily require the jury to receive an instruction on it, as if it were an element of the


                                                    3
[¶15] Kidnapping is an offense which has evolved considerably over time, and in order
to understand Wyoming’s present kidnapping statute, it is helpful to briefly digress and
review its history. At common law the crime was a misdemeanor, the elements of which
were unlawfully confining and transporting another out of the country. Over time the
scope of the crime was gradually broadened far beyond its common-law roots. One
reason was likely a lack of development of the law of attempt and the desire to use the
offense to punish conduct that was preparatory to the commission of robbery, rape, or
some other crime. Model Penal Code § 212.1 cmt. 1 (Am. Law Inst. 1980).

[¶16] In approximately the first third of the last century, there was an increase in the
number of kidnappings associated with the growing use of automobiles. There were also
several high-profile abductions for ransom. These events motivated lawmakers to
increase the severity of the punishment for kidnapping, often drastically. Id.

[¶17] The wide variety of legislative responses to those concerns and the equally wide
variety of judicial efforts to reconcile and apply that legislation resulted in a lack of
consistency between jurisdictions. Compounding that diversity was the fact that the
grading of some kidnapping-like offenses into the lesser crimes of felonious restraint and
false imprisonment was not uniform. Commentators observed that identical conduct
often would subject defendants to wildly disparate punishments in different jurisdictions.
Moreover, instances of asportation or confinement of a victim during the commission of
another crime could result in punishment much more grave than that for the other crime,
even though the movement or detention involved was relatively trivial or had no
criminological significance apart from its role in the commission of the other crime. Id.;
see also cmt. 2.

[¶18] Legislative and judicial efforts to eliminate the most egregious of those anomalies
have been based on a relatively vague notion that if a kidnapping statute is to apply to
confinement or movement of a victim that is in any way associated with the commission
of another crime, the confinement or movement must in some sense be so substantial that
it cannot be deemed a mere incident of the other crime. 2 Charles E. Torcia, Wharton’s
Criminal Law § 207 (15th ed. database updated September 2015); Frank J. Wozniak,
Annotation, Seizure or detention for purpose of committing rape, robbery, or other
offense as constituting separate crime of kidnapping, 39 A.L.R.5th 283 § 2[a] (1996).

[¶19] However, that notion has by no means led to a cure for the problems described
above. Several jurisdictions that purport to follow it nevertheless recognize exceptions
when the underlying crime is an escape, murder, or extortion, or when the victim is taken
as a hostage or for purposes of inflicting great bodily harm or terror. Wozniak, supra, §

offense of kidnapping. This might be a question of law for the court on an appropriate challenge to the
sufficiency of the evidence.


                                                   4
2[a] n.4. Furthermore, courts in the jurisdictions purporting to follow that approach
frequently reach disparate and even contradictory results in factually similar cases. For
the most part, those differences can be attributed to widely varying views as to the
breadth and meaning of the terms “substantial” and “significant” on the one hand, and the
terms “incidental” and “inherent” on the other. 2 Torcia, supra, § 207; see also 3 Wayne
R. Lafave, Substantive Criminal Law § 18.1(b), (c) (2d ed. database updated October
2015).

[¶20] Often courts define the substantiality or significance of confinement or movement
by the extent to which it increases the risk of harm to the victim over and above that
which is necessarily present in the underlying crime. Other definitions look to whether
the confinement or movement is somehow different in kind from the sort that is inherent
in the nature of the other crime, whether it makes that crime substantially easier to
commit, or whether it substantially lessens the risk of detection. Most commonly,
substantiality is viewed as a function of the duration of confinement or the distance the
victim is moved. Thus a prolonged confinement, even within the same premises that
were the site of the underlying crime, or movement from one premises to another will
generally not be viewed as incidental to the underlying crime. Wozniak, supra, § 2[a].
None of those tests, however, account for decisions that hold it merely incidental to a
sexual assault to grab and drag a victim into a nearby alley to complete the assault, or that
hold it merely incidental to a robbery to lock a homeowner in a closet while searching for
valuables to steal. See 2 Torcia, supra, § 207.

[¶21] These anomalies provided motivation and guidance to the drafters of the Model
Penal Code’s section on kidnapping, as we briefly observed in Keene v. State, 812 P.2d
147, 150-51 (Wyo. 1991). The solution5 they proposed has been aptly summarized as
follows:

                The Model Code response to these concerns is to retain
                kidnapping as an aggravated felony but to restrict its scope to
                cases of substantial removal or confinement for certain
                specified purposes. The rationale is twofold: first, to punish
                conduct that effects substantial isolation of the victim from
                the protection of the law; but, second, to confine the offense
                to instances where the degree of removal or the duration of
                confinement coupled with the purpose of the kidnapper
                render the conduct especially terrifying and dangerous. Less


5
 In our view, there is a significant distinction between a principle that guides the creation of a law, and a
rule of law by which such principles are implemented. In Keene, we recognized a concern which
motivated the drafters of the Model Penal Code. Here we speak to the resolution to that concern; that is,
to the rule embodied in the text of the Model Penal Code proposed statute and the statute actually adopted
in Wyoming.


                                                      5
             serious forms of unlawful restraint are punished as felonious
             restraint or false imprisonment[.]

Model Penal Code, supra, § 212.1 cmt. 3. Stated another way, under the Model Penal
Code’s formula, unlawful movement or confinement that occurs in comparatively close
temporal proximity to another crime is not merely “incidental” to that crime if done with
statutorily specified purposes or intent, and the distance of the move or the time of the
confinement is deemed to be (presumably by appellate courts on a case-by-case basis)
“substantial” as a matter of law.

[¶22] However, many jurisdictions, including Wyoming, did not adopt the Model Penal
Code’s recommended language in its entirety. Section 212.1 of the Model Penal Code
reads as follows:

                    A person is guilty of kidnapping if he unlawfully
             removes another from his place of residence or business,
             or a substantial distance from the vicinity where he is
             found, or if he unlawfully confines another for a
             substantial period in a place of isolation, with any of the
             following purposes:

                   (a) to hold for ransom or reward, or as a shield or
             hostage; or

                    (b) to facilitate commission of any felony or flight
             thereafter; or

                    (c) to inflict bodily injury on or to terrorize the victim
             or another; or

                   (d) to interfere with the performance of any
             governmental or political function.
                     Kidnapping is a felony of the first degree unless the
             actor voluntarily releases the victim alive and in a safe place
             prior to trial, in which case it is a felony of the second degree.
             A removal or confinement is unlawful within the meaning of
             this Section if it is accomplished by force, threat or deception,
             or, the case of a person who is under the age of 14 or
             incompetent, if it is accomplished without the consent of a
             parent, guardian or other person responsible for general
             supervision of his welfare.




                                              6
(Emphasis added.)

[¶23] On the other hand, Wyo. Stat. Ann. § 6-2-201 (LexisNexis 2015) provides:

             (a)    A person is guilty of kidnapping if he unlawfully
             removes another from his place of residence or business or
             from the vicinity where he was at the time of the removal, or
             if he unlawfully confines another person, with the intent to:
                   (i) Hold for ransom or reward, or as a shield or
             hostage;

                    (ii) Facilitate the commission of a felony; or

                   (iii) Inflict bodily injury on or to terrorize the victim or
             another.

             (b)  A removal or confinement is unlawful if it is
             accomplished:

                    (i) By force, threat or deception; or

                    (ii) Without the consent of a parent, guardian or other
             person responsible for the general supervision of an
             individual who is under the age of fourteen (14) or who is
             adjudicated incompetent.

             (c)    If the defendant voluntarily releases the victim
             substantially unharmed and in a safe place prior to trial,
             kidnapping is a felony punishable by imprisonment for not
             more than twenty (20) years.

             (d)    If the defendant does not voluntarily release the victim
             substantially unharmed and in a safe place prior to trial,
             kidnapping is a felony punishable by imprisonment for not
             less than twenty (20) years or for life except as provided in
             W.S. 6-2-101.

[¶24] As the quoted language indicates, the Model Penal Code provides that unlawful
movements or confinements constitute a separate crime of kidnapping not merely
“incidental” to some other approximately contemporaneous crime if done with statutorily
specified purposes or intent, and if the distance of the move or the time of the
confinement is substantial. A victim must be taken a substantial distance from any place



                                              7
other than his home or business. The Wyoming legislature removed the “substantial
distance” requirement when it adopted our kidnapping statute.

[¶25] Similarly, unlawful confinement constitutes the separate crime of kidnapping
under the Model Penal Code only if the confinement lasts for a substantial period of time
and is in a place of isolation. The Wyoming legislature chose not to so limit the
confinement that constitutes a crime independent of another roughly contemporaneous
offense.

[¶26] Thus, to the extent the kidnapping provisions of the Model Penal Code may
embody an “incidental rule” as broad, vague, and general as that advanced by Vaught,
key aspects of that rule did not survive in the statute adopted in Wyoming. This Court is
not at liberty to ignore or alter that legislative decision. See State v. Walch, 213 P.3d
1201, 1206-12 (Or. 2009) (en banc) (where legislature declines to include the Model
Penal Code’s “substantial distance” requirement in its kidnapping statute, and instead
limits the reach of that statute only by reference to the intent which must accompany an
unlawful asportation, court will not read the Model Penal Code requirement into the
statute); State v. Morris, 160 N.W.2d 715, 717-18 (Minn. 1968) (same approach in
confinement cases); see also Burton v. State, 426 A.2d 829, 834-35 (Del. 1981) (if the
statute is unambiguous, courts cannot and should not limit when a kidnapping conviction
is permissible by adding what is in effect a new element in the guise of construction).
Consequently, we are unable to find the incidental rule Appellant argues for somewhere
in the interstices of Wyo. Stat. Ann. § 6-2-201.

[¶27] Vaught asks us to find that we judicially adopted such a rule in Keene v. State,
supra. In that case, a gunman robbed a pharmacy in Cheyenne. During the robbery, he
ordered two employees working in another area of the business behind the pharmacy
counter before loading up drugs and cash and leaving. He was convicted of two counts
of kidnapping for that act. Keene argued that the kidnapping convictions could not stand
because he did not remove the two employees from the business or the vicinity. We
agreed.

[¶28] We engaged in a grammatical analysis of the text of the kidnapping statute and
determined that the phrase “or from the vicinity where he was” referred to a catch-all
third alternative site, in addition to a victim’s residence or business, from which one
could be kidnapped. Thus, the phrase did not refer to moving a victim from one place to
another within a residence or business, as the State argued. We observed that this result
was consistent with the principles which guided the drafting of the Model Penal Code’s
kidnapping provision. Keene, 812 P.2d at 150-51. Given its focus on the specific
language of the statute, that observation cannot be said to declare an “incidental rule” in
Wyoming.




                                             8
[¶29] Two years later, in Doud v. State, 845 P.2d 402 (Wyo. 1993), we rejected the
appellant’s invitation to read into § 6-2-201 the Model Penal Code requirement that a
confinement had to last for a substantial period of time in order to constitute a
kidnapping. We concluded that regardless of what this Court may think of the Model
Code’s intent and method of distinguishing between kidnapping and restraints that are
less significant or strictly necessary to the commission of another crime, 6 it had to honor
the legislature’s decision not to adopt that requirement. Id. at 405-06.7

[¶30] Vaught has not carried his burden of showing that authority existing at the time of
his trial clearly established an “incidental rule” beyond the elements of the kidnapping
statute. Nor has he shown us any authority requiring juries to be instructed on the
claimed rule.8

[¶31] This is not to suggest that any amount of restraint could constitute kidnapping or
one of its lesser included offenses. 9 The state of the law at the time of Vaught’s trial
required the jury to determine whether specific acts constituted the crime of kidnapping
or one of its lesser included offenses. On a proper challenge, the trial court or this Court
would have had to determine whether the facts were sufficient to submit to a jury or to



6
  Restraints that are necessary to, part and parcel of, inherent in, or merely incidental to another crime
would include, for instance, restraining a victim to commit a sexual assault.
7
  Doud unfortunately gives the impression that we took a different course in Darrow v. State, 824 P.2d
1269 (Wyo. 1992), and read into our kidnapping statute the Model Penal Code requirement that
confinement be in a place of isolation. We did not go so far in Darrow. In holding that confinement of a
victim in her home could constitute a kidnapping, we observed that such was justified because the
confinement blocked the victim’s access to the protections of society in the form of discovery or rescue.
We did refer to that obstruction as isolating the victim from those protections, but we did not say that
such confinement must occur in an isolated location. Id. at 1270-71.
8
  Vaught made no effort to describe such a rule in anything other than the most general of terms, or to
suggest how an instruction on such a rule might or might not be deemed relevant to a particular set of
facts and defenses presented at trial. Here, for instance, evidence suggests that the acts of confinement in
the kitchen and bedroom were in no way subsidiary to the sexual assault. The evidence viewed in the
light most favorable to the State demonstrated that his plan was to keep his wife quiet, tie her to the bed,
kill her, and then kill himself. The sexual acts appear to have resulted from desperate efforts to divert him
from that purpose. Although submission was achieved by fear generated by his plan or threat, and
therefore satisfied the elements of first degree sexual assault, the sexual acts were subsidiary to that plan.
In other words, it appears that the sexual assaults were incidental to the kidnapping, not the reverse.
9
  For instance, the Massachusetts Supreme Judicial Court draws a distinction between the “incidental
rule” promoted by Vaught and a more narrow rule that disallows kidnapping convictions based solely on
the sort of restraint that is strictly necessary to the commission of a sexual assault or robbery. It rejected
the former. Commonwealth v. Rivera, 490 N.E.2d 1160, 1165-66 (Mass. 1986), abrogated on other
grounds by 555 N.E.2d 208 (Mass. 1990). Otherwise, that court permits a defendant to be convicted of
both kidnapping and another offense arising out of a single course of conduct, so long as each contains an
element that the other does not. Commonwealth v. McCoy, 926 N.E.2d 1143, 1159 (Mass. 2010). In this
latter regard, also see State v. Simpson, 347 N.W.2d 920, 924-25 (Wis. Ct. App. 1984).


                                                       9
sustain a conviction, as was done in Keene.10 Although the law in this area may in the
future undergo considerable development, there was no transgression of a clear rule of
law in this case.

The Jury Question

[¶32] As already explained, the jury indicated during deliberation that it wanted the
district court to clarify or interpret the three elements instructions relating to the
kidnapping charge and the lesser-included crimes of false imprisonment and felonious
restraint. As already explained, when the court asked counsel how it should respond to
the jury’s note, the prosecutor noted “they’ve been instructed and I think that they need to
read the packet and be encouraged to read the package.” Defense counsel then replied, “I
agree, Your Honor. Read the instructions and then instructions have been provided and
whatever standard language the court uses for this kind of inquiry.” Consequently, the
court instructed the jury “to review again all of the instructions that were previously
provided to the jury by the court.”

[¶33] Vaught now claims the district court’s response to the note amounts to plain error.
The State asserts that we should not review that response because Vaught invited any
error upon which he now relies upon.

[¶34] The plain error rule is applicable only to acts of omission, deliberate or not, when
a party fails to timely assert a right or pose an objection. Such an omission forfeits
reversal based upon the error unless an appellant satisfies our well-established plain error
test, which we set out in our discussion of Vaught’s first claim of error. The invited error
rule, on the other hand, altogether precludes appellate consideration of errors that a
party’s affirmative actions induced, invited, or provoked because such intentional
conduct constitutes a species of knowing waiver. Toth v. State, 2015 WY 86A, ¶¶ 45-47,
353 P.3d 696, 710-11 (Wyo. 2015) (in response to jury question, defendant’s attorney
wanted court to simply instruct jurors to review instructions already given);11 Ortiz v.
State, 2014 WY 60, ¶ 81, 326 P.3d 883, 899 (Wyo. 2014); Eric J. Magnuson & David F.
Herr, Federal Appeals Jurisdiction and Practice § 4:4 (2016 ed.); 9C Arthur R. Miller,
Federal Practice and Procedure Civil § 2558 (3rd ed. database updated April 2015).

[¶35] The facts of this case illustrate the sometimes fine line between positive acts and
omissions. Vaught’s counsel did in fact endorse a plan of action which the district court
ultimately implemented. However, that endorsement took the form of a simple
agreement with the prosecutor’s view. It was not an act of such independent intent that

10
   This is the approach adopted in Rivera, 490 N.E.2d at 1165 n.5, where the court expressed its
preference for deciding these issues only after the return of a verdict.
11
   There is an exception for an error which is “necessarily prejudicial.” Toth, ¶ 47, 353 P.3d at 711
(quoting Snow v. State, 2009 WY 117, ¶ 26, 216 P.3d 505, 513-14 (Wyo. 2009)).


                                                  10
we can view it as a complete waiver of the error now alleged on appeal. Consequently,
we will apply the plain error standard to that allegation.

[¶36] Vaught has not shown that, under the circumstances, the district court’s response
to the jury note violated a clear rule of law. We have found that the failure to provide
supplemental instructions can amount to prejudicial error where the original instructions
are insufficient and confusing, but we have also cautioned courts to avoid giving such
instructions where they touch upon factual matters. Brown v. State, 2015 WY 4, ¶¶ 40-
44, 340 P.3d 1020, 1031-32 (Wyo. 2015).

[¶37] It is difficult to see how the court could have done other than it did. The jury’s
note identified nothing defective or confusing about the original instructions, and it was
so lacking in particulars that one cannot tell whether the jury wanted a clarification of the
law or some guidance as to how the facts in evidence might relate to that law. In short,
the jury’s question was so general that the court could not have answered it, and it would
have been inappropriate for it to inquire into the jury’s deliberations—and for it to
potentially intrude into the jury’s fact finding—to narrow it.

[¶38] Likewise, Vaught has failed to demonstrate any reasonable probability that he was
convicted of kidnapping because of the district court’s response to the jury’s note. If the
jury was still unable to understand the charges after reviewing the instructions, it could
have asked a more specific question. There was no plain error.

                                     CONCLUSION

[¶39] The district court did not violate a clear and unequivocal rule of law by failing to
instruct the jury on Vaught’s belatedly proposed “incidental rule,” nor did the court’s
response to the question posed by the jury during deliberations violate such a clear rule of
law. The court did not, therefore, commit plain error. Accordingly, we affirm Vaught’s
conviction.




                                              11
