IN THE SUPREME COURT, STATE OF WYOMING

2024 WY 39

 APRIL TERM, A.D. 2024

April 4, 2024

WESLEY DE SOUSA SOARES a/k/a 

WESLEY SOUSA,

Appellant

(Defendant),

v.

THE STATE OF WYOMING,

Appellee

(Plaintiff).

S-23-0160

Appeal from the District Court of Albany County

The Honorable Misha E. Westby, Judge

Representing Appellant:

Office of the State Public Defender: Diane Lozano, Wyoming State Public 

Defender; Kirk A. Morgan, Chief Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee:

Bridget Hill, Attorney General; Jenny L. Craig, Deputy Attorney General; Kristen 

R. Jones, Senior Assistant Attorney General; Donovan Burton, Assistant Attorney 

General. Argument by Mr. Burton.

Before FOX, C.J., and KAUTZ*, BOOMGAARDEN, GRAY, and FENN, JJ.

* Justice Kautz retired from judicial office effective March 26, 2024, and, pursuant to Article 

5, § 5 of the Wyoming Constitution and Wyo. Stat. Ann. § 5-1-106(f) (2023), he was reassigned 

to act on this matter on March 27, 2024.
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.
1

FOX, Chief Justice.

[¶1] Wesley de Sousa Soares was charged with four counts of sexual assault in the first 

degree. A jury convicted him of three. Mr. Sousa’s arguments on appeal relate to the trial 

court’s admission into evidence of Exhibits 23 and 24, two compact discs (CDs) that 

contained audio recordings of telephone calls Mr. Sousa made while in custody. The 

recordings were mostly in the Portuguese language. We find no reversible error. 

ISSUES

[¶2] Mr. Sousa presents four issues on appeal, which we rephrase and consolidate. 

1. Did the district court commit plain error when it admitted the 

audio exhibits into evidence without an accompanying 

English transcription? 

2. Did the prosecutor commit misconduct during his crossexamination of Mr. Sousa or during his closing argument?

3. Did the district court commit structural error by providing the 

jury with equipment to listen to the audio exhibits? 

FACTS

[¶3] Wesley de Sousa Soares is a Brazilian national and professional jiu jitsu fighter. 

Mr. Sousa obtained a United States athlete visa and resided in Denver, Colorado. Mr.

Sousa’s native language is Portuguese, but he can speak and understand some English. 

[¶4] Mr. Sousa and KB met through an online mobile dating application. After 

communicating online, the two agreed to meet in person. Mr. Sousa went to KB’s 

residence in Laramie, where KB said he sexually assaulted her multiple times until she 

escaped. KB went to the hospital, spoke with law enforcement, and completed a Sexual 

Assault Nurse Examiner (SANE) exam. 

[¶5] Mr. Sousa was arrested in Denver and jailed. The State charged him with four 

counts of sexual assault in the first degree. Each count was for a separate and specific 

sexual act KB said he committed against her in her home without her consent. Mr. Sousa 

claimed KB consented to their entire sexual encounter. 

[¶6] While in custody, Mr. Sousa made phone calls, which were recorded and provided 

to the investigating detective. The recorded conversations were in Portuguese, and law 

enforcement had them translated. Both the State and Mr. Sousa designated the recordings 
2

as trial exhibits in their pre-trial filings. Neither party designated an English transcript of 

the audio recordings as an exhibit.

[¶7] The State also designated the detention center’s record custodian to lay foundation 

for the jail phone call recordings in the detention center’s ordinary course of business, 

and Dorly Piske to testify “regarding translations of jail phone calls [Mr. Sousa] made . . . 

consistent with her experience and knowledge of the Portuguese language.” Defendant’s

witness list included “[a]ll witnesses summoned by the State.” 

[¶8] The case proceeded to trial, where Mr. Sousa was provided with an interpreter. 

The State called Deputy Louis Pugliese, the Denver Sheriff’s Department’s custodian of 

record for recorded phone calls. Deputy Pugliese explained the inmate call recording 

system. He also testified he provided all jail calls made by Mr. Sousa while in custody at 

the Denver Sheriff’s Department to Albany County law enforcement. 

[¶9] During Deputy Pugliese’s testimony, the State introduced two CDs, designated as 

Exhibits 23 and 24. The exhibits were each labeled “Portion of Defendant’s jail phone 

call from Denver” and contained accurate copies of the telephone calls Mr. Sousa made 

while in custody. Both exhibits were admitted into evidence without objection from 

defense counsel. The State did not provide the court or the jury with an English transcript 

of the recordings, and the recordings were never played in open court for the jury to hear.

[¶10] The State later called Detective Jeffrey McKinney, who investigated KB’s case. 

He testified he became aware of Mr. Sousa’s recorded calls as part of his investigation. 

He requested the calls from the Denver County Sheriff’s Department and had them 

translated. Neither Deputy Pugliese nor Detective McKinney testified to what was said in 

these recordings. 

[¶11] Mr. Sousa testified on his own behalf. On cross-examination, the State questioned 

Mr. Sousa concerning a conversation recorded on the previously admitted audio 

recordings: 

Q. Mr. De Sousa, do you recall having a phone 

conversation with, I believe, a Rafael, in which you stated, I 

am a walking weapon? 

A. I remember my friend Rafael. And I remember having 

a conversation with him, but I’m not understanding the 

question. Are you saying I said I was a weapon? 

Q. That’s correct. You stated – so that means, I’m, let’s 

say, a weapon. A walking weapon? 
3

A. I don’t remember that detail. But I do know that we 

have a way of talking about each other, about ourselves in jiu 

jitsu. And when a person is very good at jiu jitsu, you can say 

I’m like firing – like an automatic rifle. Or I’m as strong as a 

.38. My hands are like a weapon. 

Q. So given your explanation, you followed up on that 

statement and said, let me see if you can reason with me and 

see if you understand my logic. If I am all that, if I am alone 

in a house with an unarmed defenseless woman, what could I 

do with her?

A. Now I understand. 

I said that in the context of my being a jiu jitsu athlete. 

And what I said was that if I were alone in a home like that, I 

could do whatever I wanted to. 

[THE STATE]: Your honor, for the record, that’s Exhibit 24 

through minute mark 3017, 3252. 

[¶12] On redirect, defense counsel asked Mr. Sousa to explain the statements he made. 

Q. The prosecutor asked you about walking weapon. 

Is it your response that what you were talking about is 

that you could have done some harm to anybody if you 

wanted to. And that’s not what you were doing with [KB]?

Explain that. 

A. Yes, I would like to explain a little bit more. 

Q. Please. 

A. I will take as much care, be as careful as possible, so 

that the jurors can understand. 

I’m a professional – I am a professional jiu jitsu 

athlete. 

I am a champion in many countries oftentimes. 
4

And when you have a personality that people are 

doubting, you find – and then you find yourself inside a 

bedroom with a woman. Worst things [than] you can 

imagine –

. . .

When you’re in a woman with a – when you’re in a 

room, a bedroom with a woman, you could do worse things 

than you can even imagine. 

Imagine what a man could do with a woman when 

they’re in a bedroom with them if he’s a bad person or has a 

bad personality. 

In my situation 

[DEFENSE COUNSEL]: -- excuse me, Your honor. I 

would advise my client to stop right there. 

The Court: Okay. 

[¶13] In its closing argument, the State referenced Mr. Sousa’s statements.

[THE STATE]: You find yourself in a bedroom with a 

woman. You could do worse things than you can even 

imagine. Imagine what a man could do with a woman when 

they are in a bedroom with them. 

[KB] did not have to imagine. She lived it. 

. . .

Not only could he do what he wanted, he did what he 

wanted. 

. . .

The Defendant caused submission of [KB] through the 

actual application of physical force or forcible confinement to 

which the Defendant reasonably calculated would cause 

submission of [KB].
5

Imagine what a man could do with a woman when 

they are in a bedroom with them. 

. . .

No matter what type of weapon he claims himself to 

be. 

[¶14] During jury deliberations, the court sent an email to counsel, which read “The 

jurors have asked for audio equipment to listen to the CD’s. We were not going to treat 

this as a question and were just going to provide them with the equipment unless there is 

an objection to that.” Both State and defense counsel responded to the email, and neither 

objected. 

[¶15] A few hours later, the parties convened to discuss a jury question. The jury asked 

the court “Is it possible to get the CD recordings transcribed from Portuguese to 

English?” The court and the parties agreed the jury should not be provided with a 

transcription since a transcript had not been admitted into evidence. 

[¶16] The jury convicted Mr. Sousa of three counts of sexual assault in the first degree

and acquitted him of one. The district court sentenced him to six to eight years on each 

count to be served concurrently with credit for time served. Mr. Sousa timely appealed. 

DISCUSSION

I. The district court did not commit plain error when it admitted the audio exhibits 

into evidence without an accompanying English transcription. 

[¶17] Mr. Sousa contends plain error occurred when the district court admitted Exhibits 

23 and 24 because (1) the State offered the exhibits without providing an English 

transcript and (2) the exhibits were irrelevant and unduly prejudicial. We disagree. 

[¶18] Because Mr. Sousa did not object to the admission of the audio exhibits at trial, 

this Court reviews the issue for plain error. Gutierrez v. State, 2020 WY 150, ¶ 5, 477 

P.3d 528, 530 (Wyo. 2020) (citing Grater v. State, 2020 WY 102, ¶ 7, 468 P.3d 1116, 

1118 (Wyo. 2020)); W.R.E. 103(d). “Under plain error, an appellant must prove: ‘1) the 

record clearly reflects the incident urged as error; 2) a violation of a clear and 

unequivocal rule of law; and 3) that he was materially prejudiced’ by the alleged error.” 

Gutierrez, 2020 WY 150, ¶ 5, 477 P.3d at 530-31 (quoting Bogard v. State, 2019 WY 96, 

¶ 21, 449 P.3d 315, 321 (Wyo. 2019)). “Failure to establish each element precludes a 

finding of plain error.” Lott v. State, 2022 WY 143, ¶ 10, 519 P.3d 646, 649 (Wyo. 2022)

(quoting Klingbeil v. State, 2021 WY 89, ¶ 40, 492 P.3d 279, 288 (Wyo. 2021)).
6

[¶19] “The first step of the plain error test is met because the alleged error clearly 

appears in the record.” Gutierrez, 2020 WY 150, ¶ 8, 477 P.3d at 531 (citing Grater, 

2020 WY 102, ¶ 7, 468 P.3d at 1118). The record is clear the State offered the audio 

exhibits without an English transcript, and the district court admitted them.

[¶20] “The second step of the plain error analysis requires us to determine whether the 

admission of the testimony violated a clear and unequivocal rule of law.” Gutierrez, 2020 

WY 150, ¶ 9, 477 P.3d at 531 (citing Grater, 2020 WY 102, ¶ 7, 468 P.3d at 1118). Mr. 

Sousa argues there is a clear and unequivocal rule of law that all proceedings are to be 

conducted in English, and where evidence is a recording in a foreign language, the 

proponent of the evidence must prepare and introduce transcripts into evidence. 

[¶21] “The language of the federal courts is English.” United States v. Morales-Madera, 

352 F.3d 1, 7 (1st Cir. 2003); United States v. Rivera-Rosario, 300 F.3d 1, 5-6 (1st Cir. 

2002) (“It is clear, to the point of perfect transparency, that federal court proceedings 

must be conducted in English.”). Similarly, some federal courts have addressed foreign 

language recordings and the use of English transcripts. See United States v. Mendiola, 

707 F.3d 735, 742 (7th Cir. 2013) (“[I]n cases in which the recording is in a language 

foreign to the jury, transcripts (along with the proper admonishments about their use) are 

a ‘virtual necessity.’”) (citing United States v. Cruz-Rea, 626 F.3d 929, 936 (7th Cir. 

2010)); United States v. Ben-Shimon, 249 F.3d 98, 101 (2d Cir. 2001) (“Where the

recorded conversation is conducted in a foreign language, an English language transcript 

may be submitted to permit the jury to understand and evaluate the evidence.”) (citing 

United States v. Chalarca, 95 F.3d 239, 246 (2d Cir. 1996); United States v. Bahadar, 

954 F.2d 821, 829-31 (2d Cir. 1992)). 

[¶22] However, this Court is “not bound by a federal circuit court decision.” First Wyo.

Bank, N. A., Rawlins v. Trans Mountain Sales & Leasing, Inc., 602 P.2d 1219, 1225 

(Wyo. 1979); Metz v. Laramie Cnty. Sch. Dist. No. 1, 2007 WY 166, ¶ 61, 173 P.3d 334, 

349 (Wyo. 2007) (“[W]hile we consider relevant federal precedent, we are not bound by 

it.”) (citing Lovato v. State, 901 P.2d 408, 411 (Wyo. 1995)). As Mr. Sousa concedes, 

Wyoming case law has not established a bright line rule that proceedings are to be 

conducted in English and that the proponent of a piece of evidence in a foreign language 

must provide a transcript. Though “[c]ommon sense” may indicate “juries need 

transcripts of recorded conversations when those conversations take place in a foreign 

language and are admitted into evidence before an English-speaking jury[,]” Mendiola,

707 F.3d at 738 n.2 (citing Cruz-Rea, 626 F.3d at 936), there is no clear and unequivocal 

rule under Wyoming law.

1

1

Mr. Sousa points to Wyo. Stat. Ann. § 1-11-101, which provides “[a] person is qualified to act as a juror 

if he is . . . [p]ossessed of sufficient knowledge of the English language.” Wyo. Stat. Ann. § 1-11-

101(a)(iii) (2023). This statute contemplates a proceeding conducted in English, but it does not address 
7

[¶23] Mr. Sousa argues that without an English translation, the audio exhibits were 

irrelevant and unduly prejudicial in violation of the clear and unequivocal rules of 

evidence. 

[¶24] Relevant evidence is “evidence having any tendency to make the existence of any 

fact that is of consequence to the determination of the action more probable or less 

probable than it would be without the evidence.” W.R.E. 401. “All relevant evidence is 

admissible, except as otherwise provided by statute, by these rules, or by other rules 

prescribed by the Supreme Court. Evidence which is not relevant is not admissible.” 

W.R.E. 402. “Whether a particular item of evidence is relevant depends on the unique 

facts of a case. It could be relevant at the time the question is asked, or it could become 

relevant later based on other evidence or argument.” Gutierrez, 2020 WY 150, ¶ 23, 477 

P.3d at 534 (Kautz, J., specially concurring). “Although relevant, evidence may be 

excluded if its probative value is substantially outweighed by the danger of unfair 

prejudice, confusion of the issues, or misleading the jury, or by considerations of undue 

delay, waste of time, or needless presentation of cumulative evidence.” W.R.E. 403.

[¶25] Without an English transcript, the audios could have no relevance to a jury that 

would not be able to understand their contents. But “[u]nder the plain error standard of 

review, we reverse a trial court’s decision only if it is so plainly erroneous that the judge 

should have noticed and corrected the mistake even though the parties failed to raise the 

issue.” Hernandez v. State, 2010 WY 33, ¶ 21, 227 P.3d 315, 322 (Wyo. 2010) (quoting 

Causey v. State, 2009 WY 111, ¶19, 215 P.3d 287, 293 (Wyo. 2009)). At the time the 

district court admitted the exhibits, Mr. Sousa did not raise an objection, and we cannot 

say the district court should have noticed and corrected the mistake. The audio exhibits 

were introduced during Deputy Pugliese’s testimony, early in the State’s case-in-chief. 

Right before the exhibits were introduced and admitted, Deputy Pugliese testified he gave 

the recorded calls to Detective McKinney. The State had designated Detective McKinney 

as a witness and had not yet called him. The State had also designated and not yet called 

Ms. Piske to testify concerning her translation of the tapes, and after the exhibits were 

admitted into evidence, the State let the court know “we’ll not be publishing them at this

time.” It therefore appeared at the time of their admission that the State would bring the 

audio exhibits back up to make them understandable to the jury and thus relevant.

[¶26] Ultimately, the audio exhibits were never played as the State was able to elicit its 

desired testimony from Mr. Sousa. The State did not introduce an English transcription, 

play the audio for the jury, or call its translator to testify. Nonetheless, it appeared the 

State was prepared to do so when it sought admission of the audio exhibits, and we 

the requirement of an English transcript. See generally Wyo. Stat. Ann. § 1-11-101 (2023). It is therefore 

insufficient to establish the clear and unequivocal rule of law Mr. Sousa seeks.
8

therefore cannot find a violation of a clear and unequivocal rule of law based on the 

relevance of the exhibits. 

[¶27] As to undue prejudice under W.R.E. 403, Mr. Sousa claims the only fact the audio 

exhibits made more or less probable was that Mr. Sousa was incarcerated in Colorado, 

which was irrelevant and unduly prejudicial. Additionally, he argues the jury was 

instructed to consider all the evidence, so the jury would have felt a responsibility to 

extract information from the exhibits, which was confusing or misleading. Though the 

relevance is doubtful, the asserted prejudice is speculative. Considering at the time the 

CDs were admitted their relevance would become apparent with additional testimony, the 

court had no reason to consider the undue prejudice that might arise under W.R.E. 403 if 

the physical CDs alone were admitted into evidence. The trial court’s decision was not so

plainly erroneous that the judge should have noticed and corrected the mistake even 

without objection by the parties.

[¶28] We find no violation of a clear and unequivocal rule of law as to the district 

court’s admission of the audio exhibits into evidence without an accompanying English 

transcription.

II. The prosecutor did not commit misconduct during his cross-examination of Mr. 

Sousa or during his closing argument.

[¶29] Mr. Sousa “did not raise a prosecutorial misconduct objection to the district court. 

Accordingly, we review for plain error.” Freer v. State, 2023 WY 80, ¶ 24, 533 P.3d 897, 

904 (Wyo. 2023) (citing King v. State, 2023 WY 36, ¶ 33, 527 P.3d 1229, 1242 (Wyo. 

2023)). 

[¶30] “This Court has defined prosecutorial misconduct as ‘[a] prosecutor’s improper or 

illegal act (or failure to act), esp[ecially] involving an attempt to persuade the jury to 

wrongly convict a defendant or assess an unjustified punishment.’” Freer, 2023 WY 80,

¶ 24, 533 P.3d at 904 (quoting King, 2023 WY 36, ¶ 16, 527 P.3d at 1238). Prosecutorial 

misconduct “claims are intended ‘to address gross prosecutorial improprieties that have 

deprived a criminal defendant of his or her right to a fair trial.’” Freer, 2023 WY 80,

¶ 25, 533 P.3d at 904-05 (quoting Meece v. State, 2023 WY 60, ¶ 17, 530 P.3d 597, 600 

(Wyo. 2023)).

A. The Prosecutor’s Cross-Examination of Mr. Sousa 

[¶31] Mr. Sousa argues the prosecutor committed misconduct in a few ways during his 

cross-examination of him. First, the prosecutor’s reference to the time stamp of one of the 

audio exhibits constituted inadmissible hearsay. Second, the prosecutor argued facts not 

in the record and thereby acted as an unsworn witness because the prosecutor’s questions 

pertaining to Mr. Sousa’s conversation with Rafael and his subsequent reference of the 
9

time stamp informed the court and the jury what was said during Mr. Sousa’s 

conversation without an English translation in evidence. 

[¶32] The record is clear as to this issue. During his cross-examination of Mr. Sousa, the 

prosecutor asked Mr. Sousa questions relating to a prior conversation he had with Rafael, 

and the prosecutor also referenced one of the audio exhibits and its time stamp. However, 

the prosecutor did not violate a clear and unequivocal rule of law. “Prosecutorial 

misconduct is more than evidentiary error.” Freer, 2023 WY 80, ¶ 25, 533 P.3d at 905

(citing King, 2023 WY 36, ¶ 33, 527 P.3d at 1242). Consequently, even if the 

prosecutor’s statement referencing the time stamp of one of the audio exhibits was 

inadmissible hearsay as Mr. Sousa claims, it was no more than evidentiary error. Adams 

v. State, 2023 WY 85, ¶ 15, 534 P.3d 469, 474 (Wyo. 2023) (quoting King, 2023 WY 36, 

¶ 16, 527 P.3d at 1238) (“We distinguish prosecutorial misconduct from an evidentiary 

error because otherwise, any evidentiary error which favors the State would be 

considered prosecutorial misconduct.”).

[¶33] Additionally, although the English translation of Mr. Sousa’s conversation with 

Rafael was not admitted, and thus was outside of evidence, we cannot say the 

prosecutor’s questions and statements regarding the conversation constituted misconduct. 

“[A] defendant who testifies in a criminal case may be cross-examined regarding his 

credibility just like any other witness,” Talley v. State, 2007 WY 37, ¶ 10, 153 P.3d 256, 

260 (Wyo. 2007) (citing Jensen v. State, 2005 WY 85, ¶ 20, 116 P.3d 1088, 1095 (Wyo.

2005)), and “the asking of certain questions assuming facts not in evidence [is] a part of 

appropriate trial strategy and tactics.” Daniel v. State, 923 P.2d 728, 740 (Wyo. 1996).

Mr. Sousa voluntarily took the stand and subjected himself to cross-examination. The 

prosecutor’s statements and questions regarding Mr. Sousa’s conversation with Rafael 

were not a “gross prosecutorial impropriet[y]” that deprived Mr. Sousa of his “right to a

fair trial.” Freer, 2023 WY 80, ¶ 25, 533 P.3d at 904-05 (quoting Meece, 2023 WY 60, 

¶ 17, 530 P.3d at 600).

B. The Prosecutor’s Closing Argument 

[¶34] Mr. Sousa argues the prosecutor committed misconduct by acting as an unsworn 

witness when he used what Mr. Sousa said in his recorded conversation during closing

argument. But as the State notes, it is difficult to discern “which statements [Mr. Sousa] 

is challenging” because he does not “specify any part of the [prosecutor’s] closing 

argument where error occurred.” Mr. Sousa only points to the prosecutor’s “use of that 

information [to whom and what was said during Mr. Sousa’s recorded conversation] later 

in closing argument.” From his Statement of the Case, Mr. Sousa seems to take issue with 

the prosecutor’s “theme of what could this trained fighter do if he was in a house alone 

with a defenseless woman.” He specifically points to the prosecutor’s statements: “you

find yourself in a bedroom with a woman. You could do worse things than you can even 
10

imagine[]” and “Imagine what a man could do with a woman when they are in a bedroom 

with them.” 

[¶35] The record does not support Mr. Sousa’s contention that the prosecutor was 

referring to the audio conversation rather than Mr. Sousa’s own testimony, and we find 

no violation of a clear and unequivocal rule of law. “The purpose of closing argument is 

to allow counsel, including the prosecutor, to offer ways for the jury to view the 

evidence, and to draw reasonable inferences therefrom.” Harris v. State, 2008 WY 23, 

¶ 19, 177 P.3d 1166, 1172 (Wyo. 2008) (citing Belden v. State, 2003 WY 89, ¶ 48, 73 

P.3d 1041, 1089 (Wyo. 2003); Phillips v. State, 835 P.2d 1062, 1073 (Wyo. 1992)). A 

prosecutor is “afforded wide latitude during closing argument and may comment on 

evidence admitted during trial and suggest reasonable inferences.” Hartley v. State, 2020 

WY 40, ¶ 13, 460 P.3d 716, 720 (Wyo. 2020) (citing Bogard v. State, 2019 WY 96, ¶ 19, 

449 P.3d 315, 321 (Wyo. 2020)). “We evaluate the ‘propriety of closing arguments in the 

context of the entire argument and compare them with the evidence produced at trial.’”

Hartley, 2020 WY 40, ¶ 16, 460 P.3d at 720 (quoting Dixon v. State, 2019 WY 37, ¶ 41, 

438 P.3d 216, 231 (Wyo. 2019)). Mr. Sousa himself provided the testimony regarding 

what a trained fighter could do in a house alone with a woman—testimony the prosecutor

could properly refer to in closing, without reference to the CDs.

[¶36] The prosecutor did not commit misconduct during his cross-examination of Mr. 

Sousa or during his closing argument. 

C. No Material Prejudice

[¶37] Mr. Sousa bears the burden of proving material prejudice under our plain error 

standard of review. Deeds v. State, 2014 WY 124, ¶ 21, 335 P.3d 473, 479 (Wyo. 2014) 

(“The appellant bears the burden of proving plain error[.]”). “Material prejudice exists 

when the appellant demonstrates a reasonable probability that the jury verdict would have 

been more favorable in the absence of the error.” Gutierrez, 2020 WY 150, ¶ 5, 477 P.3d

at 531 (citing Larkins v. State, 2018 WY 122, ¶ 94, 429 P.3d 28, 49-50 (Wyo. 2018)). 

“Merely asserting prejudice without a proper showing is not enough to meet the plain 

error standard.” Doherty v. State, 2006 WY 39, ¶ 23, 131 P.3d 963, 971 (Wyo. 2006)

(citing Bhutto v. State, 2005 WY 78, ¶ 44, 114 P.3d 1252, 1268 (Wyo. 2005)). 

[¶38] Mr. Sousa has not met that burden, considering the great weight of evidence 

against him. The jury was presented with testimony from KB regarding her encounter 

with Mr. Sousa; testimony from Mr. Sousa, where he admitted he did not have an 

explanation for KB’s injuries; and testimony, photographs, and reports relating to DNA 

evidence, KB’s scared and shaken demeanor, and KB’s physical injuries that 

corroborated her version of events. Mr. Sousa’s claim of prejudice is further weakened by 

the fact he took the stand, and through his own testimony on cross and redirect, 

confirmed the effects of his strength. Mr. Sousa was not materially prejudiced.
11

III. The district court did not commit structural error by providing the jury with 

audio equipment to listen to the audio exhibits. 

[¶39] The district court provided the jury with audio equipment to listen to the audio 

exhibits. Mr. Sousa did not object, and he now argues on appeal this Court should find 

structural error. We decline to do so. 

[¶40] “‘Structural error’ is essentially an error so grave that it is grounds for reversal 

without any showing of prejudice. It is a fundamental constitutional error ‘so intrinsically 

harmful as to require automatic reversal (i.e., ‘affect substantial rights’) without regard to 

their effect on the outcome.’” Yazzie v. State, 2021 WY 72, ¶ 13, 487 P.3d 555, 560 

(Wyo. 2021) (quoting Neder v. United States, 527 U.S. 1, 7, 119 S. Ct. 1827, 1833, 144 

L.Ed.2d 35 (1999)).

The purpose of the structural error doctrine is to ensure 

insistence on certain basic, constitutional guarantees that 

should define the framework of any criminal trial. Thus, the 

defining feature of a structural error is that it ‘affect[s] the 

framework within which the trial proceeds,’ rather than being 

‘simply an error in the trial process itself.’

Yazzie, 2021 WY 72, ¶ 14, 487 P.3d at 560 (quoting Arizona v. Fulminante, 499 U.S. 

279, 310, 111 S. Ct. 1246, 1265 (1991)). The United States Supreme Court has 

recognized three bases for finding structural error: (1) ‘if the

right at issue is not designed to protect the defendant from 

erroneous conviction but instead protects some other interest’; 

(2) ‘if the effects of the error are simply too hard to measure’; 

or (3) ‘if the error always results in fundamental unfairness.’

Yazzie, 2021 WY 72, ¶ 15, 487 P.3d at 561 (quoting Weaver v. Massachusetts, 582 U.S.

286, 295-96, 137 S. Ct. 1899, 1908, 198 L.Ed.2d 420 (2017)). This Court has specified 

“[t]he bar for finding structural error is high.” Tarpey v. State, 2023 WY 14, ¶ 34, 523 

P.3d 916, 927 (Wyo. 2023), cert. denied, 144 S. Ct. 80, 217 L. Ed. 2d 15 (2023) (quoting 

Anderson v. State, 2014 WY 74, ¶ 21, 327 P.3d 89, 95 (Wyo. 2014)).

[¶41] Mr. Sousa argues this Court should find structural error because the effects of 

allowing the jury unrestricted access to the audio exhibits are too hard to measure. 

Putting aside the question of the relevance of audio in a language that presumably no 

juror understood, allowing the jury unsupervised access to the audio recordings was error.

There can be two types of exhibits: testimonial and non-testimonial, and whether an 

exhibit is testimonial or non-testimonial dictates how the court is to manage the jury’s 
12

access to the evidence during deliberations. See Hicks v. State, 2021 WY 2, ¶¶ 26, 27, 

478 P.3d 652, 660-61 (Wyo. 2021). “In general, the trial court has discretion over 

whether to permit non-testimonial exhibits into the jury room during deliberations.” 

Munoz v. State, 849 P.2d 1299, 1301 (Wyo. 1993), overruled on other grounds by Klahn 

v. State, 2004 WY 94, 96 P.3d 472 (Wyo. 2004) (citing Stephens v. State, 774 P.2d 60, 70 

(Wyo. 1989); Stone v. State, 745 P.2d 1344, 1349 (Wyo. 1987)). “Testimonial materials, 

on the other hand, may not be sent to the jury for unsupervised review.” Hicks, 2021 WY 

2, ¶ 27, 478 P.3d at 660-61 (citing Munoz, 849 P.2d at 1301). “The rule was designed to 

prevent juries from ‘unduly emphasizing [the submitted testimony] over all of the other 

testimony in the case.’” Hicks, 2021 WY 2, ¶ 27, 478 P.3d at 661 (quoting Munoz, 849

P.2d at 1301). When it comes to testimonial evidence, this Court has emphasized the trial 

court “must ascertain exactly why the jury wants to view the [testimonial evidence], must 

decide whether the [evidence] will give the jury key facts without unduly emphasizing a 

witness’s testimony, and must only show the relevant portions under carefully controlled 

procedures.” Chambers v. State, 726 P.2d 1269, 1276-77 (Wyo. 1986), receded from on 

other grounds by Lancaster v. State, 2002 WY 45, ¶ 16, 43 P.3d 80, 88 (Wyo. 2002). The 

record shows no independent review by the district court to determine whether the audio 

exhibits were testimonial or non-testimonial; instead, the court “just provided them with 

the equipment” to listen to the tapes. The district court’s decision goes firmly against our 

precedent.

[¶42] However, Mr. Sousa points to no authority holding that the type of error presented 

in this case was structural. “We have recognized structural errors such as a complete 

deprivation of the right to trial counsel or the lack of an impartial judge.” Yazzie, 2021 

WY 72, ¶ 13, 487 P.3d at 560 (quoting Mellott v. State, 2019 WY 23, ¶ 24, 435 P.3d 376,

385 (Wyo. 2019)). We cannot find the court’s decision to allow the jury to listen to the 

audio exhibits “affect[ed] the framework within which the trial proceed[ed] rather than 

being simply an error in the trial process itself.” Yazzie, 2021 WY 72, ¶ 14, 487 P.3d at 

560 (quoting Fulminante, 499 U.S. at 310, 111 S. Ct. at 1265). Accordingly, there was no 

structural error. 

[¶43] As there was no structural error and defense counsel did not object, this Court 

would ordinarily apply a plain error standard of review. Sorensen v. State, 2019 WY 80, ¶ 

24, 444 P.3d 1283, 1289 (Wyo. 2019). However, we have held that if the defendant 

knows of an irregularity with the jury, such as misconduct or exposure to information 

outside of the evidence, the defendant waives any claim of error if he does not object. See 

Pena v. State, 2013 WY 4, 294 P.3d 13 (Wyo. 2013); Vlahos v. State, 2022 WY 129, 518 

P.3d 1057 (Wyo. 2022). For example, this Court has previously considered cases where 

“jurors or potential jurors may have been exposed to information which could have 

improperly influenced them.” Pena, 2013 WY 4, ¶ 50, 294 P.3d at 23. In Pena, the 

defendant appealed the district court’s denial of his motion for a new trial. Id. at ¶ 45, 294 

P.3d at 22. The defendant’s motion “alleged that witnesses for the State [had] talked 

about aspects of the case in front of prospective jurors who might have been seated as
13

trial jurors.” Id. The defendant failed to raise his concerns with the trial court during the 

trial. Id. at ¶ 46, 294 P.3d at 22. This Court affirmed the district court’s denial of the 

motion for a new trial and held “if a defendant or his counsel knows of potential 

impropriety in connection with the jury during trial, and fails to object before the return 

of the verdict, he waives any right to a new trial based on that impropriety.” Id. at ¶ 50, 

294 P.3d at 23. 

[¶44] This Court expanded on Pena’s holding more recently in Vlahos v. State, 2022 

WY 129, 518 P.3d 1057 (Wyo. 2022). Vlahos involved “juror misconduct and 

inadvertent exposure to material that could potentially improperly influence a juror.” 

Vlahos, 2022 WY 129, ¶ 66, 518 P.3d at 1073-74 (citing Pena, 2022 WY 129, ¶ 50, 294 

P.3d at 23). In Vlahos, a juror had been exposed to a video on social media of the 

defendant discussing his case. Vlahos, 2022 WY 129, ¶¶ 26, 27, 518 P.3d at 1066. The 

defendant was given the chance to question the juror, but he did not. Id. at ¶ 66, 518 P.3d 

at 1073-74. He also did not object to the juror staying on the jury and did not ask for an 

alternate to replace him. Id., 518 P.3d at 1074. When the defendant argued he was 

entitled to a new trial because the juror should have been removed, this Court found 

waiver “[b]ecause he did not object prior to the return of the verdict.” Id.

[¶45] Here, defense counsel did not object to the court providing the audio equipment to 

the jury. Then, when the jury asked if it could receive a transcript of the audio exhibits, 

defense counsel said “No . . . Let them wonder.” Mr. Sousa has waived this claim of 

error. 

CONCLUSION

[¶46] We find no reversible error and affirm Mr. Sousa’s conviction. The district court

did not commit plain error when it admitted the audio exhibits into evidence without an 

English transcription. The prosecutor did not commit misconduct during his crossexamination of Mr. Sousa or during his closing argument. The district court erred when it 

provided the jury with equipment to listen to the audio exhibits without first screening the 

recordings, but the error was not structural and Mr. Sousa waived it by failing to object.