Cheyenne · Laramie County · Wyoming · (307) 333-7539
Wyoming plain error and the right to a unanimous jury
Nobody objected at trial. Under Wyoming law that normally ends an appeal before it begins. Francis McVay found the defect in the written instructions the jury was handed, argued it to all five justices of the Wyoming Supreme Court, and won. Two felony convictions reversed. Walker v. State, 2022 WY 158, 521 P.3d 967.
This page describes a published decision of the Wyoming Supreme Court and nothing outside it. The complainant was a minor and appears in the record only by initials. Nothing here comments on the defendant’s guilt or innocence. The subject of this page is a rule of constitutional law — and how it was found.
Every juror must agree. Agree on what?
The United States and Wyoming Constitutions guarantee a criminal defendant a unanimous jury verdict. Twelve people, one answer. Everyone has heard that. Walker forced the harder question underneath it: agree on what, exactly?
The State charged five counts of the same offense — same defendant, same complainant, same county, same three-week window, same statutory language. When the judge handed the jury its written instructions, five of them were identical, differing only by a count number. The verdict form was identical too. And the testimony described as many as ten separate occasions.
So twelve jurors could each look at Count II, each have a completely different occasion in mind, each vote guilty — and the foreperson could report a unanimous verdict. Everyone agrees. Nobody agrees on anything.
Nobody caught it
Not the prosecutor, not the judge, not trial counsel. That normally ends the story. Wyoming law is blunt: if your lawyer sat silent while it happened, you do not get to raise it on appeal. The State says you waived it, and almost every time the State is right.
What plain error means in Wyoming
There is one narrow way through. The mistake has to be clear in the written record. It has to break a rule of law that was already settled. And it has to have cost the defendant something real. Lawyers call it plain error. In plain terms, it means winning an appeal you were never supposed to be allowed to file.
Francis McVay filed it — as Senior Assistant Appellate Counsel with the Wyoming State Public Defender. Appellate defenders are assigned their cases; they do not choose them. The duty runs to the record and to the constitutional rights of the person whose liberty is at stake, whatever the charge. He read the instructions the jury actually received, saw that five identical pieces of paper could not tell twelve people what they had to agree on, and argued it.
The verdict that could not be true
The jury convicted on three counts and acquitted on two — using the exact same instructions, on the exact same evidence.
If that sounds wrong to you, you understand the case. All five justices of the Wyoming Supreme Court agreed. As the Court put it, the jury faced “five identical charges, committed in the same manner, in the same location, within the same time frame, with the same perpetrator and the same victim.” Its conclusion: those instructions “cannot pass constitutional muster.”
What the Court held
The Court reversed the convictions on two counts and remanded for a new trial. It affirmed the first count, where the testimony and the State’s closing had clearly fixed the underlying event, and affirmed a separate attempt count, which rested on one distinct course of conduct rather than an undifferentiated series.
One holding worth flagging: the Court rejected the State’s argument that the absence of any sign of jury confusion showed there was no harm. A jury, the Court explained, can be misled without ever feeling confused. The danger is not visible confusion — it is a verdict that looks unanimous and is not.
The part that outlived the case
Walker did a second thing that reached far past one defendant. Before it, Wyoming decisions could be read to let a witness’s testimony or a prosecutor’s closing patch up defective written instructions after the fact — as if a good closing could repair the paper the judge handed the jury. McVay argued that had it backwards. The State argued the opposite. The Court took his position and said so expressly.
The rule now runs in order. First: were the written instructions adequate on their own? If not, the error exists — full stop. Only then does the court look at the whole record to decide whether that error cost the defendant anything. Argument does not cure error. It bears on consequence. Those are two different questions, and since Walker they are asked in that order, in every Wyoming case involving a challenged jury instruction.
Where the rule stands today
Walker is now cited whenever a Wyoming court reviews a defective jury instruction. In Person v. State (2023) the Court built its entire prejudice analysis on it, and two justices wrote separately over how far it reaches — the proposition they were arguing about is the one McVay argued for and the State argued against. Kobielusz (2024) and Lee (2024) folded it into the standard every Wyoming court now applies. Iverson (2025) applied the framework to an omitted element. Townsend (2025) marked its outer edge — it governs multiple identical counts, not single-count instructions. And Duncan (2026) shows it working: the trial court there did exactly what Walker said had been missing, and the conviction stood.
That is the ripple. One argument, made under a standard almost nobody survives, now shapes how every multi-count case in Wyoming is charged, instructed, and reviewed.
Why this is on a law firm’s website
Because it is the clearest account available of how this firm works. The record was bad. The objection had never been made. The standard was the hardest one there is, and the argument was not the one anyone else wanted to make. It succeeded because someone read the paper the jury actually received and refused to accept that an error nobody caught is the same as no error at all.
Every criminal-defense lawyer says they fight for you. Ask them what appellate court has adopted their argument. This is the difference between a lawyer who works these cases and one who has changed the law they run on.
The law is not settled until it is just.
Read it yourself
Walker v. State, 2022 WY 158, 521 P.3d 967 (Wyo. 2022). Wyoming Supreme Court opinions are public at courts.state.wy.us. Read it rather than take our summary of it.
If you or a family member has been convicted and you are weighing an appeal or post-conviction relief, the first step is getting the record in front of someone who reads transcripts for a living. Appellate deadlines in Wyoming are short and jurisdictional.
Call (307) 333-7539 or request a free consultation.
Questions people ask
Does a Wyoming jury have to agree on which specific act supports each charge?
When someone is charged with several counts of the same offense, arising from repeated conduct in the same place and timeframe, the instructions and verdict form have to give the jury a way to know which act goes with which count. A general instruction that the verdict must be unanimous is not enough by itself.
What happens if my lawyer didn’t object at trial?
Ordinarily the issue is lost. Wyoming recognizes a narrow exception, called plain error, requiring that the mistake be clear in the record, that it broke a rule of law that was already settled, and that it cost the defendant a real right. It is a difficult standard and appeals rarely succeed under it. They are not impossible. Walker is one.
Can a prosecutor’s closing argument fix a bad jury instruction?
No. Under Walker, what a lawyer says in closing does not make defective written instructions legally adequate. It can bear on whether the defendant was harmed by the error — a separate question, asked afterward.
Is Walker still good law?
Yes. Wyoming courts have cited it in six decisions through 2026. Townsend clarified that it addresses multiple identical counts rather than single-count instructions, and Duncan applied its principle in 2026.
Does Deep Waters Law handle criminal appeals?
Yes — direct appeals, post-conviction matters, and appellate consultation for trial lawyers, in Wyoming state courts, federal court, and the Eastern Shoshone and Northern Arapaho tribal courts.
Francis H. McVay appeared as Senior Assistant Appellate Counsel with the Wyoming Office of the State Public Defender and argued Walker v. State, 2022 WY 158, 521 P.3d 967 (Nos. S-21-0045, S-22-0042), on appeal from the District Court of Campbell County. The matter was not handled by Deep Waters Law, L.L.C. Prior results do not guarantee or predict a similar outcome in any future matter. This page describes one appellate decision, is general information rather than legal advice, and does not create an attorney-client relationship.