from the District Court of Park County. The Honorable Steven
R. Cranfill, Judge.
Appellant: Office of the State Public Defender: Diane M.
Lozano, State Public Defender; Tina N. Olson, Chief Appellate
Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel.
Argument by Mr. Morgan.
Appellee: Peter K. Michael, Wyoming Attorney General; David
L. Delicath, Deputy Attorney General; Christyne M. Martens,
Senior Assistant Attorney General; Darrell D. Jackson,
Faculty Director, Bradford H. Coates, Student Director,
Travis K. Wagman, Student Intern, of the Prosecution
Assistance Program. Argument by Mr. Wagman.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
[¶1] A jury convicted Ernest Ray Watts of
aggravated assault and battery in violation of Wyo. Stat.
Ann. § 6-2-502(a)(i) (LexisNexis 2015), as a result of
an altercation with his girlfriend. Mr. Watts appeals,
arguing that the prosecutor's incorrect statement
regarding the presumption of innocence and his attempt to
define " reasonable doubt" in his closing argument
constituted prosecutorial misconduct, the cumulative effect
of which denied him his right to a fair trial. We affirm.
[¶2] We adopt the issue statement advanced
by Mr. Watts:
Was Mr. Watts denied his right to a fair trial due to the
cumulative effect of two acts of prosecutorial misconduct?
[¶3] At the time of the incident, Mr. Watts
was living with his girlfriend, Diana Lynch, in a rental
house outside of Cody, Wyoming. On January 9, 2014, Ms. Lynch
was at home when Mr. Watts returned from work. The two argued
when Ms. Lynch told Mr. Watts that she did not want him
watching television in the same room in which she had been
reading. Ms. Lynch testified that after a brief " hand
skirmish" over the remote control, she walked to the
telephone to call the television service provider and request
that the service be disconnected. She explained that Mr.
Watts followed her, and told her that if she had the service
shut off, he was going to " knock me on my . . .
ass." Ms. Lynch responded, stating: " If you do
that, you'd better make it a good one." At that
point, according to Ms. Lynch, Mr. Watts punched her in the
face. She then remembered being on the floor with Mr. Watts
standing over her and taunting her while she asked him to
stop. After the altercation, Ms. Lynch went to the bathroom
to tend to her wounds. She asked Mr. Watts, " What
happened?" to which Mr. Watts responded that she "
had fallen into the plant." Ms. Lynch responded,
stating: " Ernie [Mr. Watts], that isn't what
happened. You did this to me." Ms. Lynch testified that
she asked Mr. Watts to drive her to the hospital, but he
refused, telling Ms. Lynch that she was fine. Ms. Lynch then
drove herself to the hospital where she was treated. Ms.
Lynch suffered a blow-out fracture to the right orbit which
required surgery; nasal bone fractures; a minor subarachnoid
bleed; a concussion; and lacerations to her upper and lower
lip and eyebrow, which required sutures.
[¶4] Mr. Watts took the stand and testified
that after the argument over the television, he retreated to
the basement of the house to do his laundry. Mr. Watts
testified that he heard a crash in the upstairs area. When he
came upstairs, he saw Ms. Lynch lying " slumped" in
the corner of the kitchen with a " plant  encompassing
her face." Mr. Watts helped Ms. Lynch up and helped tend
to her injuries. He then stated that he did not believe Ms.
Lynch needed further care, so he went to bed, and when he
woke the next morning, Ms. Lynch was gone.
[¶5] After a three-day trial, the jury
convicted Mr. Watts of intentionally causing serious bodily
injury to another in violation of Wyo. Stat. Ann. §
6-2-502(a)(i). Mr. Watts timely filed his notice of appeal.
Additional facts, testimony, and argument will be set forth
below, as necessary.
[¶6] Mr. Watts failed to object to the
prosecutor's allegedly improper statements at trial. Our
review is therefore limited to a search for plain error.
Brown v. State, 2014 WY 104, ¶ 19, 332 P.3d
1168, 1174-75 (Wyo. 2014) (citing Leiker v. State,
994 P.2d 917, 918 (Wyo. 1999)). " Plain error exists
when: 1) the record is clear about the incident alleged as
error; 2) there was a transgression of a clear and
unequivocal rule of law; and 3) the party claiming the error
was denied a substantial right resulting in material
prejudice." Collins v. State, 2015 WY 92,
¶ 10, 354 P.3d 55, 57 (Wyo. 2015) (citing Fennell v.
State, 2015 WY 67, ¶ 23, 350 P.3d 710, 719 (Wyo.
[¶7] Normally, we would determine whether
each incident of alleged misconduct by the prosecutor caused
sufficient prejudice to require a reversal. However, in this
case, Mr. Watts does not argue that each isolated statement
made by the prosecutor constituted plain error. Instead, Mr.
Watts contends that it is only when the errors are considered
in the aggregate that they create sufficient prejudice to
warrant reversal of his conviction. As a result, we need not
analyze the prejudice prong for each separate instance of
alleged prosecutorial misconduct. Instead, we examine: 1)
whether the record is clear about each incident alleged to be
misconduct; 2) whether each instance of alleged misconduct
actually transgressed a clear and unequivocal rule of law;
and 3) if both instances of alleged misconduct violate clear
and unequivocal rules of law, whether the cumulative effect
of the misconduct prejudiced Mr. Watts to such an extent that
his trial was other than fair and impartial. McClelland
v. State, 2007 WY 57, ¶ 27, 155 P.3d 1013, 1022
Mr. Watts denied his right to a fair trial due to the
cumulative effect of two acts of prosecutorial
[¶8] Mr. Watts alleges two instances of
prosecutorial misconduct in the prosecutor's closing
argument to the jury. Prosecutorial misconduct is " [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) (citations omitted). "
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). Prosecutorial
misconduct occurs when the prosecutor engages in conduct that
he knew or should have known would deprive the defendant of
the right to a fair trial. Id. at 544. It is against
this backdrop that we examine Mr. Watts' allegations.
[¶9] First, Mr. Watts contends that the
prosecutor's remark concerning the presumption of
innocence was an incorrect statement of law. Second, Mr.
Watts asserts that the prosecutor attempted to define
reasonable doubt in contravention of this Court's
previous rulings. We address each of Mr. Watts'
contentions in turn.
Presumption of Innocence
[¶10] Mr. Watts argues that the prosecutor
incorrectly instructed the jury concerning the presumption of
innocence when the prosecutor stated in his closing argument:
We have proven our case. We have proven every element of this
case beyond a reasonable doubt. And now when you go back
to deliberate, that presumption of innocence no longer
exists. That veil in essence is lifted, and you are now