### IN THE SUPREME COURT, STATE OF WYOMING

20 2 4 WY 39

APRIL TERM, A.D. 202 4

April 4, 2024

WESLEY DE SOUSA SOARES a/k/a WESLEY SOUSA,

Appellant (Defendant),

v.

THE STATE OF WYOMING

,

Appellee (Plaintiff). S

- 2 3

- 0 160

Appeal from the Distr ict Cou rt 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 Appell ee: Bri dge t 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.

* Ju stice 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 f orm al 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 argum ent s 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 langua ge. We fin d 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 transcript ion?

2. Did the prosecutor commit misconduct during his cross

examination 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 S oar es is a Brazilian national and professional jiu jitsu fighter.

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

So usa’s native language is Portuguese, but he c an speak and understand some English.

[¶4] Mr. Sousa a nd 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

escape d

. KB went to the hospi tal, spoke with law enforcement, and completed a Sexual Assault Nurse Examiner (SANE) exam.

[¶5] Mr. Sous a was arrested in Denver and jailed. T he State charged him with four counts of sexual assault in the first degree. Each count was for a separate and speci fic

sexual ac t KB said he c ommitted 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 cal l s, which were recorded and provided

to the investigating detectiv e

. The rec orded conversations were in Portuguese, and law

enforcement had them translated

. Bot h the State and Mr. Sousa designated the recordings2 as trial exhibits in their pre

- trial filings. Neither party designated an English transcript of

the audio reco r dings as an exhibit.

[¶7] The State also designated the detenti on 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 cal ls [Mr. Sousa] made . . . consistent with her exper ience and knowledge of the Portuguese language

. ” Defen dant ’ s witness l ist included “[a]ll witnesses summoned by the State.”

[¶8] The case proceeded to trial, where Mr. Sousa was provided with an int erp reter. The State called Deputy Louis Pugliese, the Denver Sheriff’s Dep a rtment’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. Sou sa whi le in cust o dy 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 o f Defend ant’s jail phone

call fro m Denve r” 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 rec ordings, and the recordings were never played in open court fo r the jury to hear.

[¶10] The S tate 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 investiga tio n. He r equested the calls from th e Denver County Sheriff ’ s Department and had them

translated

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

th ese 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 au dio recordings:

Q. Mr. De S ousa, do you recall having a phone conversation with, I believe, a Rafael, in which you stated, I

am a walki ng weapon?

A. I reme mbe r my fr iend 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 w eapon. A walking weapon?3 A. I don’t rem ember t hat detail. But I do know that we have a way of talking about each other, about ourse lves in jiu jitsu. And when a p erson 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 li ke a weapo n.

Q. So given your explanation, you followed up on that statement and said, let m e see if you can reason with m e and see if you understand my logic. If I am all that, if I am alone

in a house with an una rmed defenseless woman, what could I

do wi th her?

A. Now I understand.

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

th rou gh minu te mark 3017, 3252.

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

Q. The prosecutor asked you about walking weapon.

Is it your response that what you were talking about is that you c ould have done some ha rm to anyb ody if you wanted to. And that’s not what you were doing with [KB]?

Explai n 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 prof es sional

– I am a professional jiu jitsu

athlete

.

I am a champion in many c o untries oftentimes.4 And when you have a personality that people are doubting, you find

– and then you find yourself inside a

bedroom with a woma n. Worst things [than] yo u can i magine

–

. . .

When you’re in a woman with a

– when you’re in a room, a be d room 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 wit h them if he’s a bad p ers on or h as a bad personality.

In my situation

[DEF ENSE COUNSEL]:

-- excuse me, Y o ur honor. I would advise my client to stop right there.

The Court: Okay.

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

[THE STATE]: Yo u fi nd your self in a bedroom w i th 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 o nly could he do wha t he wanted , he did what he

wan ted.

. . .

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 ma n co uld do with a woman when

th ey 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 ju rors have asked f or audio e quip ment to listen t o t he 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, an d neither obje cted.

[¶15] A f ew hours later, the pa rti es conv ened to discuss a jury question. The jury asked the court “Is it possible to get the CD recordings transcribed from Portuguese to English?” Th e court and th e parties agreed the jury should not be provided with a transcriptio n since a transcript h ad not bee n admitted into evidence.

[¶16] The jury convicted Mr. Sousa of three counts of sexual assault in the first degree and acquitted hi m of one. The district court sentenced him to six to eight years on each

count to be served concu rr ently with credit fo r t ime ser ved. 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 erro r occurred when the di str ict cou rt admitted Exhibits 23 and 24 because (1) th e State offered t he exhibits wi thout providing an English transcript and (2) the exhibits were irrelevant and unduly prejudicial. We disagree.

[¶18] Because Mr. Sousa did not object t o the admission of the au dio e xh ibits at trial,

this Court review s the issue fo r 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)

. “ Un de r plain error, an ap pel lant mu st p rove: ‘ 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 (quotin g B ogard v . State , 20 19 WY 96, ¶ 21, 4 49 P.3d 315, 3 21 (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

, 20 21 WY 89, ¶ 40, 492 P.3 d 279, 288 (Wyo. 2 021) ).6 [¶19] “ The firs t 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 ). Th e record is clear the Sta te offe red the aud io

exhibits witho ut 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 un equivoc al rule of la w. ” Gutier rez , 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 Engl ish, and where evidenc e is a recording in a for eign la nguage, 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

, 35 2 F.3d 1, 7 (1s t Cir. 2003) ; United States v. Ri vera

- 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 langua ge recordings and the use of En gl ish transcripts. See Un ited St ates 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 abo ut their use) a re

a ‘ virtual necessity. ’ ” ) (cit in g United States v. C ruz

- Rea , 6 26 F.3d 929, 936 (7 th 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 l anguage transcri pt may be sub m itted to permit th e jury to understand an d evalu ate the evidence.” ) (citing

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

, 954 F.2d 821, 829

- 31 (2d Cir. 1992) ).

[¶22] However, this Court is “not b ound by a federa l circuit cou r t decision.” Fir st Wyo

. Bank, N. A., Rawl in s 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 consi der relevant fed eral preceden t , we are not bou nd by it.”) (citi ng Lovat o 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 pr oponent of a pie ce of evidenc e in a foreign la ng uage must prov ide a tra n script. Though “[c]ommon sense” may indicate “ juries need transcripts of recorded conversations when those conversations take place in a foreign language and a re admitted into evidence bef o re an English

- speaking jury [,]” Mendiola

, 7 07 F.3d at 738 n.2 (citi ng 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

- 1 1

- 101, which provides “[a] person is qualified to act as a ju ror if he is . . . [p]os sessed of sufficient knowle dge of the English language.” Wyo. Stat. Ann. § 1

- 11

- 101(a)(iii) ( 20 23 )

. Thi s statute c ontemplates a proceeding conduc ted in English, but it does not address7 [¶23] Mr. Sousa argues that without an English transla tio n, the audi o exhibits were

irr elev ant and unduly prejudicial in violati on of the clear and unequ ivocal rules of

e vidence.

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

fact that is of cons equ ence to the determination of t he action more probable or less probable than it would be without the ev idence. ” W.R.E. 401 . “ A ll rele vant evide nce is admissible, except as otherwise provided by statute, by these rules, or by other rules prescribed by the Su preme Court . Evidence which i s not relevant is not admissible. ”

W.R.E. 402 . “ Whether a particular it em of evidence is relevan t depen ds on the unique facts of a case. It could be relevant at the time the question is asked, or it could become

relevant lat er based on ot her evidence or ar g ument. ” Gutierrez , 2020 WY 150, ¶ 23, 477

P.3d at 534 (Kautz, J., spec ia lly concurring). “Altho ugh rel evant, evi dence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, con fus ion of the issues, or mislead i ng t he jury, or by considerations of undue delay, waste of time, or ne ed less presentation of cu mulativ e evidence .” W.R.E

. 403.

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

would not be ab le to understa nd their contents

. But “ [u] nder the plain error standard of review, we reverse a trial co ur t ’ s decision only if it is so plainly e rroneous that the judge should have noticed and corrected the mistake even though t he parties fai led to raise the

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

, 2 009 WY 111, ¶ 19, 215 P.3d 28 7 , 293 (Wyo . 2009) ) . At the time the district court admitted the exhibits, Mr. Sousa did not raise an ob jec tion, and w e cannot say the d i strict court shoul d have noticed and corrected the mistake. The audio exhibits

were introduced duri ng Deputy Pugli e se’s testi mony, early in the State’s case

- in

- chief. Righ t b efore the e xhibits were intro d uced 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 cal l e d hi m

. Th e State had also d esignated and not yet called

Ms. Piske to testify concerning her trans lation of the tapes, and a fter the exhibits were admitted into evidence, the State let the court know “we’ll not be publishing them at t his

time .” It therefor e a pp eared at the time of th eir admission that the State would bring the audio exhibits back up to make them understandable to th e jury and thus relevant.

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

desir ed testimo ny fr om Mr . Sousa. T he State did not introduce an English transcription, play the audio f or the jury, o r call its transla t or 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 g e nerally Wyo. Stat. An n. § 1

- 11

- 101 (20 23 )

. It is therefore

insuffic i ent to establish th e clear and unequivocal rule of law Mr. Sousa see k s.8 therefo re ca nnot find a vio lat ion o f a cl ear and unequivoca l 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 incarcer ated i n Co l orado,

whi ch was i rrelev ant and unduly pre j udicial. 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 m isl e adin g. Tho u gh the

relevance i s 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 migh t ar is e un d er W.R.E. 403 if

t he physical CDs alone were admitted into evidence. The trial court’s decision was not s o plainly erroneous that the judge should have notice d and corrected the mistake even without objection by the par ties.

[¶28] We find no violatio n of a cle a r and unequivocal rule of law as to the district

court’s admission of the audio exhibit s into evidence wi t hout an accompanying English transcription

.

II. The prosecutor did not commit misconduct during his cross

- exam ination of Mr.

Sousa or du ring h is c l osing arg ument.

[¶29] M r. So usa “ 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,

90 4 (Wyo. 2023) (citing King v. State , 2023 WY 3 6, ¶ 3 3, 5 27 P .3 d 1229, 1242 (Wy o

. 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 asse ss an unj usti fi ed p u nishment.’” Fre e r , 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 impropriet ies that have deprived a criminal defendant of his o r he r righ t to a fai r tria l

. ’ ” 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 ar gues the prosecutor committed misconduct in a few w ays dur ing his

cro ss

- examin a tion of him

. First, the prosecutor’s reference to the time stamp of one of the audio exhibits constituted inadmissible hearsay. Second, t he prosecutor argued facts not in the record and thereby a cted as an uns wo rn w i t ness because the prosec utor’s questions pertaining to Mr. Sousa’s conversation with Rafael and his subsequent reference of the9 time stamp informed the court and the jury what w as said during Mr. Sousa ’ s conversation without an Engl ish transla tion i n evid e n ce.

[¶32] The record is cle ar 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 exh ibits a nd its time s tamp

. However,

t he pros ecutor did not violate a clear and unequivocal rule of law. “Prosecutorial

misconduct is more t han evidentiary error.” Freer , 2023 WY 80, ¶ 25, 533 P.3d at 905 (citing King

, 2023 W Y 36, ¶ 33, 527 P.3d at 1242 ). Consequently, ev en i f the

p rosecutor’s statem ent referencing the time stamp of one of the audio exhibits was inadmissible hearsay as Mr. Sou sa claims, it was no more than evidentiary error. Adams

v. State , 2023 WY 85, ¶ 15, 5 3 4 P.3d 469, 474 (Wyo. 2023) (quoting King , 202 3 WY 3 6, ¶ 1 6 , 527 P .3d at 12 38) (“We distinguish prosecutorial misconduct from an evidentiary error because otherwise, any evidentiary error which favors the State would be considered pro secutorial misc onduct

. ”)

.

[¶33] Additionally, a lthough the English trans lati on of M r. Sousa’s convers ation with Rafael was not admitted, and thus was outside of evidence

, we cannot say the prosecutor’s questions and statement s regard ing the convers ation c onstitute d misconduct. “[A] defendant who testifies in a criminal case ma y be c ross

- examined regarding his credibility just like any other witness

, ” Talley v. Stat e , 2007 WY 37, ¶ 10, 153 P.3d 256, 260 (Wyo. 2007) (citing Jense n v. State , 200 5 WY 8 5 , ¶ 20, 116 P.3d 1088, 1095 (Wyo. 2005) ), and “the asking of certain questions a ssuming fa c ts not in ev idence [is] a part of appropriate trial strategy and tactics.” Danie l v. State , 923 P.2d 728, 740 (Wyo. 1996). Mr. Sousa voluntarily took the stand and s ubjected himself to cross

- examination. The prosecutor’s statements and questio ns regarding Mr. Sousa’s conversation with Rafael

wer e not a “gross prosecutorial impropriet[y]” that deprived Mr. So usa of his “rig ht 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 Pr os ecutor’s C l osing Argume nt

[¶34] Mr. Sousa argues the pr osecutor committed misconduct by acting as an unsworn witnes s when he used what Mr. S o usa said in his recorded conversation during closing

argument. But as the State notes, it is difficult to discern “wh ic h statemen t s [Mr. Sousa ]

i s challenging” because he does not “specify any part o f the [prosecutor’s] clos ing

ar g ument 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 re corded con v ersation] la ter in closing argument.” Fro m his S tatement 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 .” H e specifically points t o the pro s e cutor’s stat ement s: “ y o u find yourself in a bedroom with a woman. You could do worse things than you can even10 imagine [] ” a nd “Imagine what a man could do with a woman when they are in a bedroom

wi th them.”

[¶35] The record does not support Mr. Sou sa ’s c ontent i on that the p rosecu t or 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 prosecut or , to offer ways for the jury t o 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. Sta te , 83 5 P.2d 1062, 1073 ( W yo. 19 9 2) ) . A
prosecutor is “afforded wide latitude during closing argument and may comment on evidence admitted during trial and suggest reasonable infer ences.” Hartley v. Stat e , 2020 WY 40, ¶ 13, 460 P.3d 716, 720 (Wyo. 2020) (c it ing Bogard v. State , 20 1 9 WY 9 6 , ¶ 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 7 20 (qu oting D ixon v. Stat e , 2019 WY 37, ¶ 41, 438 P.3d 216, 231 (Wyo. 2019))

. Mr. Sousa himself provided the testi mony rega rd ing

what a t rain ed figh ter could do in a house alone with a woman

— testimony the prosecutor
could properly refer to in closing

, with ou t referenc e to the CDs.

[¶36] The prosecutor did not commit misconduct during his cross

- exa mination of Mr.

Sous a or d u ring his c losing argument.

C. N o 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 appe llant bears the burd en of p roving p la in error[.] ”). “M ateria l prejudice exists when the appellant demonstrates a reasonable probability that the jury verdict would have

b een more f a vorable in the absence of the error. ” Gutierrez , 2020 WY 150, ¶ 5, 477 P.3d at 531 (citing Lark ins v. State , 2 0 18 WY 12 2, ¶ 94, 429 P.3d 28, 49

- 5 0 (Wyo. 2018) ). “Merely asserting prejudice without a proper showing is not enough to meet the p lain

error stand ard.” Dohe r ty 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. 200 5) ).

[¶38] Mr. Sousa has not met that burden, considering the great weight of evidence against him. The jury was presented with testimony f rom KB regarding her encounter

with Mr. Sousa ; testimony from Mr. Sousa, where he admitted he did not have an explanation f or KB’s injuries ; and t estimony, photographs, and reports relating to DNA evidence, KB’s scared and shaken demeanor, and K B’s physic a l injuri e s that

corroborated her version of events

. Mr . Sousa’s claim of prejudice is further weakened by

the fact he too k the stand, a n d through his own t estimony on cross and redirect,

confirmed the effects of his streng th. Mr. Sousa was not m ateriall y p rejudiced.11 III. The district court did not commit structural error by providing the jury with audio equipment to l isten t o the audio exhibits.

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

exhibits

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

structural error. We decline to do so.

[¶40] “‘ Structura l error ’ i s essentially an error so grave that it is grounds for reversal

without any showing of prejudice. It is a fundamental consti tutional e rror ‘so intrinsically harmful as to require automatic r eversal (i.e., ‘aff ect substantial rights’) without regard to

thei r 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 (1 999)).

T he purpose of the s tructural error doctrine is to ensure

insistenc e on certain basic, const itutional guarantees that

should define the fr amework of any criminal trial. Thus, the defining fea ture of a s tructural error is that it ‘ affect[s] the

framework wi t hin which the trial proceeds, ’ rather than being

‘ simply an error in the trial process itse lf. ’

Yazzie, 2021 WY 72, ¶ 14, 487 P.3d at 560 (quoting Ar izona v. Fulminante , 499 U.S. 279, 310, 111 S. Ct. 1246, 1265 (1991)) . The United States Supreme Court has

recogniz e d three bases for f inding structural error: (1) ‘ if t he right at issue is not d esigned 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) ‘ i f the error always results in fundamental unfairness. ’

Yazzie, 2021 WY 72, ¶ 1 5, 487 P.3d at 561 ( quoting Weaver v. Massachusetts

, 582 U .S.

286

, 295

- 96 , 137 S. Ct. 1899, 19 08, 1 98 L.Ed.2d 420 (2017)). This Court has specified “[t]he bar for finding st ruc tural e rror is high.” Tarp ey v. State , 2023 WY 14, ¶ 3 4, 523 P.3d 916, 927 (Wyo. 2023 ), cert. denied, 144 S. Ct. 80, 217 L. Ed. 2d 15 (2023) (q uoting

Anderson v. State , 2014 WY 74, ¶ 2 1, 327 P.3 d 89, 95 (Wyo. 2014)).

[¶41] Mr. Sousa argues this C ourt should find str uctura l error because the effects of allowing the jury u nrestricted access to th e audio exhibits are too hard to measure. Putting aside the question of the relevance of audio in a language t hat presumably no juror understood, al low ing th e jury unsupervised access to the audio recordings was error.

There can b e two types of exhibits: t estimonial and non

- testimonial, a nd w hether an

exhibit is testimonial or non

- testimonial dictates h ow the cou r t is to manage the jury’s12 access to the e videnc e during deliberatio n s. See Hicks v. State , 2021 WY 2, ¶¶ 26, 27,

478 P.3 d 652, 660

- 61 (Wyo. 2021). “In general, the trial court has discretion over whether to permit non

- testimonial exhibits into t he jury ro o m during deliberations.”

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

v. State

, 20 04 WY 94, 96 P.3d 472 (W yo. 2004) (citing Stephens v. Sta te , 774 P.2d 60, 70 (Wyo. 1989); Stone v. State , 745 P.2d 1344, 13 49 (Wyo. 1 9 87))

. “Testimonial materials,

on the othe r 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 subm i tted testimony] over all of the other

tes timony in the case.’” H icks , 2021 WY 2, ¶ 27, 478 P.3d at 661 (quoting Munoz , 8 49 P.2d at 1301). When it comes to testimonial evidence, th is Court has emphasized the trial court “must ascertain exactly wh y the jury wants to view the [testimonial evidence], must
decide whet h er the [evidence] w ill give the jury key facts without unduly e mphasizing a

witness ’ s t estimony , and must only show the relevant portions under carefully controlled procedures.” Chambers v. State

, 726 P.2d 1269, 1276

- 77 (Wyo. 1986 ), rece ded from on

other grounds by Lancaste r v. State , 2002 WY 45, ¶ 16, 43 P.3d 80, 8 8 (Wyo. 2002) . The

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

exhibits were test imonial or non

- testimonial; instead, the court “ jus t provided them w i th the equipment ” t o listen to the tapes. The district court’s d ecision goes firmly agai nst our precedent.

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

in thi s case was structural. “We have recognized structural errors such as a complete deprivation of the righ t to trial counsel or the lack of an impartia l judge.” Yazzie , 2021 WY 72, ¶ 13, 487 P.3d at 560 (quoting Mellott v. S tate , 2019 WY 23, ¶ 24, 43 5 P.3d 3 76

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

audio exhib its “affect[ed] the f ramework within which th e trial proceed [ ed] rather than being simply an error in the trial process i tself.” Yazzie , 2021 WY 72, ¶ 14, 487 P.3d at

5 60 (quoting Ful min a nte , 499 U.S. at 310, 111 S. Ct. at 1265). Accordingly, there was no

str uctural error.

[¶43] As t here was no structural error and defense counsel did not object, this C ourt 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 h ave held that if the defendant

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

o utside of the evidence, the defendant waive s a n y clai m of error if he does not object. See

Pena v. State , 2013 WY 4, 294 P.3d 13 (Wyo. 201 3); Vlahos v. State , 2022 WY 129, 518

P .3 d 1057 (Wyo. 2022). For example, this Court has previously considered cases w here “jurors or potential jurors may have b een expose d to informat ion which could have improperly influenced them.” Pena , 2013 WY 4, ¶ 50, 294 P.3d at 23. In Pena , the

defendant appealed the district cou rt’s denial of his motion for a new trial. Id. at ¶ 4 5, 294

P.3d at 22. The defendant’s motion “ all e ged th a t witnesses for the State [had] talked about aspects of the case in front of prospec tive jurors who might have been seated as13 trial jurors.” Id. The defendant failed to raise his concerns with the trial court during the

trial. Id. at ¶ 4 6 , 294 P .3d at 22

. This Court a ffirmed the district court’s denial of the

motion for a new trial and he ld “if a defendant or his counsel knows o f potential impropriety in connection with the jury during trial, and fails t o object before the return of the verdict, he w aives a ny right to a new trial based on that impropriety.” Id. at ¶ 50,

294 P.3d at 23.

[¶44] T his Court expanded on Pena ’s holding mo re recently in Vlahos v. S tate , 2022 WY 129, 518 P.3d 1057 (Wyo. 2022). Vla hos involved “juror misconduct and

inadve r tent exposure t o ma terial that could potentially improperly influence a juror.”

Vlahos , 2022 WY 129, ¶ 66, 518 P.3 d 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 disc ussing h i s case

. Vlahos , 2022 WY 129, ¶¶ 2 6, 27, 518 P.3d at 1066 . The

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

at 1073

- 74. He also did not object to the juror staying on the jury a nd did not ask for an

al ternate to replace him

. Id. , 518 P.3d at 1 074. When the defendant argued he was

entitled to a new trial because the juror s hould have be en removed , this Court f ound waiver “[b]ecause he did not object prior to the return of the verd ict

. ” Id.

[¶45] Here, defense counsel d i d no t object to the cour t providing the audio equipment to the jury. Then, when the j ury asked if it could receive a t ranscript of the audio e xhibits

, defense counsel said “No

. . . Let them won der.” Mr. Sousa ha s waived this claim of

error.

C ONCLUSION

[¶46] We find no reversible erro r and affirm Mr. Sousa’s convic tion. The district court

did not commit plain error when it a dmitted the audio exhibi ts into evidence without an English transcription. The prosecutor did n ot commit misconduc t during his cross

exam i nation of Mr. Sousa or during his closing argument. The d istrict court erred when it provid ed the jury with equipmen t to listen to the audio e xhibits without first sc reening the recordings, but the error was not s tructural and Mr. S ousa waived i t by faili n g to object

.