author: LEHMAN, Chief Justice. VOIGT, Justice,

text:
    2002 WY 72
    Troy Dwayn BLACK, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 00-182.
    Supreme Court of Wyoming.
    May 14, 2002.

      Sylvia Lee Hackl, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Ryan R. Roden, Assistant Appellate Counsel, Representing Appellant. Argument by Mr. Roden.
    Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Kimberly A. Baker, Senior Assistant Attorney General, Representing Ap-pellee. Argument by Ms. Baker.
    Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ. '
   LEHMAN, Chief Justice.

[11] After trial, a jury convicted appellant Troy Dwayn Black of aggravated assault with a deadly weapon, aggravated robbery, aggravated burglary, and conspiracy to commit aggravated robbery. We affirm.

ISSUES

[T2] Appellant sets forth the issues on appeal: |

I. Whether appellant's conviction for aggravated assault with a deadly weapon can stand because insufficient evidence supports it?
II. Whether appellant's conviction for aggravated robbery can stand because insufficient evidence supports it?
III. Whether appellant's conviction for aggravated burglary can stand because insufficient evidence supports it?
IV. Whether the State's offer, and the admission of a witness' testimony; that she was convicted of an offense arising out of the circumstances leading to appellant's trial, and the State's continued use of such fact, violated appellant's right to have a trial on its own merits and constituted plain error?
V. Whether the district court violated appellant's right to the Sixth Amendment to the United States Constitution and Article 1, Section 10 of the Wyoming State Constitution when it instructed the jury regarding the law on aiding and abetting?

FACTS

[13] On May 6, 1999, during a brief visitation with the victim Patrick Stone, appellant observed a quantity of cash in the apartment. That afternoon appellant, along with his cohorts, devised a plan to rob Mr. Stone. The group executed the robbery that night.

STANDARD OF REVIEW

[T4] The standard of review for sufficiency of the evidence issues is well established. We assess whether all the evidence presented is adequate to form the basis for an inference of guilt beyond 'a reasonable doubt to be drawn by a finder of fact when that evidence is viewed in the light most favorable to the State. We leave out of consideration the evidence presented by the unsuccessful party which conflicts with the successful party's evidence, and afford every favorable inference to the successful party's evidence which may be reasonably and fairly drawn from that evidence. Even though it is possible to draw other inferences from the evidence presented, the jury has the responsibility to resolve conflicts in the evidence. We will not substitute our judgment for that of the jury when we are applying this rule; our only duty is to determine whether a quorum of reasonable and rational individuals would, or even could, have come to the same result as the jury actually did. Vanvorst v. State, 1. P.3d 1223, 1228 (Wyo.2000); Harris v. State, 933 P.2d 1114, 1123 (Wyo.1997); Blake v. State, 933 P.2d 474, 480 (Wyo.1997).

[T5l It is also well established that.a trial court has a duty to instruct a Jury on the general principles of law applicable to the case at issue. A trial court is given wide latitude in instructing the jury and, as long as the instructions correctly state the law and the entire charge covers the relevant issue, reversible error will not be found. Instructions must be considered as a whole, and individual instructions, or parts of them, should not be singled out and considered in isolation. Ogden v. State, 2001 WY 109, ¶ 8, 34 P.3d 271, ¶ 8 (Wyo.2001); Coburn v. State, 2001 WY 30, ¶ 9, 20 P.3d 518, ¶ 9 (Wyo.2001); Merchant v. State, 4 P.3d 184, 190 (Wyo.2000).

[T6] Jury instructions shall not be ruled defective absent a showing that the instructions confused or misled the jury as to the proper principles of law and prejudiced the defendant. Lane v. State, 12 P.3d 1057, 1061 (Wyo.2000). Prejudicial error must be demonstrated, and prejudice will not be demonstrated unless the instruction confused or misled the jury with respect to the proper principles of law. Wilson v. State, 14 P.3d 912, 916 (Wyo.2000). Further, a failure to instruct properly on an element of a erime does not constitute plain error where evidence of the defendant's guilt is overwhelming. Id.

[17] Finally, this court will find that 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 error was denied a substantial right which materially prejudiced him. Mazurek v. State, 10 P.3d 531, 535 (Wyo.2000); Urrutia v. State, 924 P.2d 965, 969 (Wyo.1996).

DISCUSSION

Sufficiency of the Evidence

[T8] Appellant in his first three issues argues that insufficient evidence was presented at trial to convict him of aggravated assault with a deadly weapon, aggravated robbery, and aggravated burglary. Appellant contends that insufficient evidence was presented to prove beyond a reasonable doubt that 1) he threatened to use. a drawn weapon on another person when not reasonably necessary in defense of his person, property, or abode or to prevent serious bodily injury to another; 2) in the course of committing a robbery he used- or exhibited a deadly weapon or a simulated deadly weapon; or 8) he, in the course of committing a burglary, was armed with, or became armed with, or used a deadly weapon or a simulated deadly weapon, or knowingly or recklessly inflicted bodily injury on another person as required by Wyo. Stat. Ann. §§ 6-2-502, 6-2-401 and 6-3-301, respectively. Specifically, appellant asserts that it must be shown beyond a reasonable doubt that he personally took each of these required acts.

[T9] Wyo. Stat. Ann. § 6-1-201 (LexisNexis 2001) provides:

(a) A person who knowingly aids and abets in the commission of a felony, or who counsels, encourages, hires, .commands or procures a felony to be committed, is an accessory before the fact.
(b) An accessory before the fact:
(i) May be indicted, informed against, tried and convicted as if he were a principal;
(i) May be indicted, informed against, tried and convieted either before of after and whether or not the principal offender is indicted, informed against, tried or convicted; and
(@i) Upon conviction, is subject to the same punishment and penalties as are prescribed by law for the punishment of the principal.

In Hawkes v. State, 626 P.2d 1041, 1043 (Wyo.1981), we long ago put to rest that since an aider and abettor is to be "informed against, tried and convicted in the same manner as if he were a principal," no distinction is made between aider and abettor and principal. Therefore, an aider and abettor is guilty of the principal crime with proof of participation in either capacity sufficient to convict a defendant as a principal. Id.; see also Jahnke v. State, 692 P.2d 911, 920-21 (Wyo.1984) and Neilson v. State, 599 P.2d 1326, 1335 (Wyo.1979).

[T10] To convict a person of aiding and abetting, it must be proved that the crime was committed by someone and that the aider and abettor associated himself with and participated in the accomplishment and success of the criminal venture. Fales v. State, 908 P.2d 404, 408 (Wyo.1995); Jones v. State, 902 P.2d 686, 693 (Wyo.1995). We also held in Edge v. State, 647 P.2d 557, 560 (Wyo.1982), that it is not necessary to prove that each defendant did that which was nee-essary to establish each element of an offense but that it is sufficient to show that they were associated together in doing that which comprises each element of the offense. Further, although a defendant's presence at the time and place. of the crime does not establish guilt as an aider, abettor, or principal, an intent to engage in the criminal venture may be shown by the relationship of the parties and by their conduct before and after the offense. Haight v. State, 654 P.2d 1232, 1238 (Wyo.1982).

[111] Sufficient evidence was presented that each of the crimes alleged were committed and that appellant, at minimum, acted as an aider and abettor by associating himself with and participating in the accomplishment and success of those criminal actions. Specifically, on May 6, 1999, appellant and his fiancé O'Neill drove to the apartment of Patrick Stone. Appellant introduced himself to Stone 'as "Snake"; and, during a brief conversation concerning appellant's attempt to locate a friend, appellant observed a quantity of cash Stone had just received in payment for a car he had recently sold. Stone's girlfriend, Porter, saw appellant ride away from the area in a red car, followed by a small white sports utility vehicle.

[T12] When appellant returned to O'Neill's vehicle, he immediately stated that he was going to "Jack that fool" because he had a lot of money laying around and he kept his door 'unlocked. Appellant - and O'Neill then returned to their residence. Thereafter, appellant told his cohorts Jones and Soto at his residence that he wanted to go back to Stone's apartment to rob him. Appellant, O'Neill, Jones, and Soto then went to Lee's residence.

[113] After appellant discussed the robbery with Lee, the group went to Stone's apartment around midnight with the intent of robbing Stone. Initially, appellant knocked on the door and entered the apartment alone. Appellant sat next to Stone on the couch. Also, present in the room were Porter, the three-year-old daughter of Stone and Porter, and Gilbert Vega, a tenant of the apartment. While appellant and Stone conversed, Vega went to the back of the apartment.

[T14] A few minutes later, Lee and Jones burst into the apartment armed with a gun and a knife, respectively, with Lee pulling a mask down over his face and cocking the gun as he entered. Lee ordered Stone, Porter and their daughter to freeze and to get on the floor and not move, look, or talk. At the same time, Jones moved behind Porter and held the knife to her throat and pushed her into a recliner. Jones then told Porter to get on the floor, close her eyes and not look. Porter was then pushed to the floor by Jones, and Porter grabbed her daughter when this occurred.

[115] Jones then went to the back of the apartment and forced Vega face down to the floor and tied Vega's hands loosely with speaker wire. He advised Vega that he should close his eyes and keep quiet and he would not get hurt. Jones continued to hold Vega's hands.

[116] During the time that Jones handled Vega, Lee and appellant told Stone to get down. When Stone tried to comply by turning around and getting down on the couch, appellant and Stone grabbed him, pushing his face into the couch, with Lee getting on top of Stone and holding the gun to Stone's head. Appellant told Stone that if he moved or looked up he would be shot.

[117] Subsequently, when the daughter of Stone and Porter began to ery, Lee pointed the gun at Porter and their daughter and told Porter to shut their daughter up or he would shoot her daughter. Porter tried to quiet her daughter, but Lee told Porter to take her daughter to a back bedroom and she complied. Vega felt Porter and her daughter move past him as they went to the back bedroom.

[118] Appellant and Lee then both asked Stone where the money was located.: Porter overheard the two men making this request of Stone as she exited the room on her way to the back bedroom with her daughter. While Stone was being held down with his face in the couch, he was struck with the gun on a number of occasions in the back of the head. While this happened, appellant searched through a jacket that was worn by Stone and eventually removed from this jacket $530.00 in cash comprised of various Bills. When attempting to accomplish this task, appellant ripped Stone's jacket.

[119] Stone was then told not to move, leave or tell anyone. The three assailants then left the apartment together; and the three, along with O'Neill and Soto, went in O'Neill's car and the small white sports utility vehicle to Lee's residence to celebrate. The men were thrilled and excited, commenting that the people in the house went crazy when they pulled out the gun.

[120] Immediately after the men left, Stone observed a red car followed by a small white sports utility vehicle exit the area of the apartment. Stone then dialed 911 to report the crime and went to check on Porter, his daughter, and Vega. At that time, Porter noticed Stone was bleeding from the back of his head.

[121] When the police arrived to investigate, Stone was treated for his injuries. Stone identified both appellant and Jones from a photo lineup. He further described appellant as having some darkening of the skin or a tattoo above his left eye. In addition, Stone assisted the police by inquiring from an acquaintance where appellant lived. It was also noted that blood was on Stone's jacket as a result of him being hit with the gun.

[122] Stone further advised the police during their investigation that he had previously seen the red vehicle he observed leaving his apartment after the crime and that it had a broken windshield. Thereafter, O'Neill confirmed that the broken windshield on her vehicle was just recently repaired. The police later confirmed Stone's sale of his automobile and receipt of $500.00 on the date in question and that a small white utility vehicle was owned by Soto.

[123] Additionally, Stone indicated that the money stolen from him was comprised of 100, 50, and other smaller denominations of bills and that some of the bills had distinctive marks on them. Specifically, Stone stated that some of the $100 bills were of the "newer" type bill, and that some of the bills had light blue, almost fluorescent ink, bingo Dauber stamps on them.

[T24] Later, appellant attempted to hide in a cellar to evade police officers to prevent his arrest. When he was arrested, appellant was initially found to have cash in the amount of $490 on his person. Another officer also found an additional $300.00 in cash on appellant later when he was questioned. At trial, although Stone had never previously seen either of the amounts of money taken from appellant after his arrest, Stone was able to identify that this money was the money stolen from him because a $10 bill had the distinctive light blue, almost fluorescent ink, bingo Dauber stamp on it as he had previously described and the hundreds consisted of some of the "newer" type bills.

[125] When appellant was questioned after his arrest and upon being given a Miranda warning, he initially said he knew nothing. However, when he was confronted with his identification surrounding the incident, he admitted that he was at Stone's apartment when the events occurred. Nevertheless, Stone stated that he was present in the apartment to purchase drugs when two men entered the apartment with a gun and a knife and began to yell and threaten Stone and Porter. Appellant then explained that in the confusion he was able to leave undetected by these men.

[4126] Subsequently, appellant positively identified Lee and Jones and stated that they were his friends. He also said that he had seen Lee with a gun a few weeks earlier at a party. He further advised the police that Lee was wearing a beanie when he entered Stone's apartment. Moreover, a police officer advised appellant that he thought that he, Jones and Lee decided they were going to go over and rip off Stone with the intent that appellant would attempt to buy' drugs and get Stone to bring as many drugs as possible, then Jones and Lee would enter with a knife and gun wherein appellant would control Stone and they would take his money and drugs. and get out of there. In response to this scenario, appellant stated, "You done a pretty good job figuring this out, but I never had no gun." Further, during his interview by police, appellant referred to a robbery as "jacking somebody." When Jones was detained for questioning with respect to the above-described events he was found to have a knife in his possession.

[127] As such, adequate evidence existed in this case for the jury to form the basis for an inference of guilt beyond a reasonable doubt when such evidence is viewed in the light most favorable to the State as required. We will not substitute our judgment for that of the jury; our only duty is to determine whether a quorum of reasonable and rational individuals would, or even could, have come to the same result as the jury actually did. Vanvorst v. State, 1 P.3d at 1228; see also Blake v. State, 933 P.2d at 480 and Harris v. State, 933 P.2d at 1123.

Jury Instruction

[§%28] Appellant argues that since he was not specifically charged as an accessory before the fact under § 6-1-201, the trial court improperly instructed the jury on the law of aiding and abetting and thereby violated appellant's constitutional rights under both the United States and Wyoming Constitutions. We do not agree.

[1T29] As previously noted, since § 6-1-201 provides that an aider and abettor is to be informed against, tried, and convict ed in the same manner as if he were a principal, no distinction is made between an aider and abettor and principal. Hence, an aider and abettor is guilty of the principal crime. Proof of participation in either capacity is sufficient to convict a defendant as a principal, and it is not necessary that the information refer to the aiding and abetting statute. Hawkes v. State, 626 P.2d at 1043; Neilson v. State, 599 P.2d at 1335.

[$30] We find the information in this case sufficient to support defendant's conviction. As we noted in Hawkes, it may be better practice to have an information contain a reference to the aiding and abetting statute if it appears that the accused may have acted as an accessory rather a principal. The trial judge, however, did not err in instructing the jury as to the crime of aiding and abetting because proof of participation as an aider and abettor is sufficient to support a conviction as a principal.

[T31] 'Further in support of our conclusion, we recognize, as we did in Netison, that appellant could have requested to be furnished with a bill of particulars setting forth the precise theories under which the State would prosecute the charges asserted against him. In addition, and perhaps most importantly, the State filed a Notice of Intent specifically putting appellant on notice that the State would rely on those theories to the extent necessary of co-defendant lability, aider and abettor theory, and Pinkerton liability, as well as lability as a principal in each of the charged offenses.

[132] As this court indicated in Hawkes, 626 P.2d at 1043, in comparing the facts of Neilson v. State, 599 P.2d 1326 (Wyo.1979), to that case:

Defendant's case is even weaker than that in Netison, supra, since defendant had actual notice of the State's theory as set out in the bill of particulars. Admittedly, a bill of particulars is not a part of the information and does not change the offense charged; however, it does make the general allegations more specific, which allows the defendant an opportunity to better prepare his case.

[183] Here, we similarly hold that while the Notice of Intent is not a part of the information and does not change the offenses charged, it did give appellant actual and explicit notice of the possible theories that the State would rely upon which allowed appellant a better opportunity to better prepare his case. See Hawkes, at 1043-44 and those cases cited therein.

Statements of the Prosecution

[134] Finally, appellant asserts comments made by the State during the trial regarding O'Neill's participation in the crimes and her reaching a plea agreement wherein she pled guilty to conspiracy to commit robbery, precluded appellant from being afforded a fair trial. In particular, appellant argues statements made by the prosecutor during voir dire, during the testimony of O'Neill and Detective Jones, and in closing argument were inappropriately allowed. In support of this contention, appellant cites the cases of Kwallek v. State, 596 P.2d 1372, 1375-76 (Wyo.1979) and Urrutia v. State, 924 P.2d 965, 969 (Wyo.1996) (citing Wells v. State, 846 P.2d 589, 595 (Wyo.1992)).

[135] In Urrutia, at 969, we recognized:

Appellant relies upon Kwallek v. State, 596 P.2d 1372 (Wyo.1979), in making his argument that admitting his co-conspirators' testimony was a prejudicial error which mandates a reversal. In that case, this Court ruled that, "when two persons are indicted for separate offenses growing out of the same cireumstance, the fact that one has pleaded guilty is inadmissible against the other." 596 P2d at 1375. "[Ejvidence of a witness' guilt for an offense which arose out of a cireumstance leading to the defendant's trial implies that the defendant is also guilty. Such an implication violates a defendant's right to have a trial on its own merits." Wells v. State, 846 P.2d 589, 595 (Wyo.1992), denial of habeas corpus aff'd. sub nom. Wells v. Shillinger, 37 F.3d 1510 (10th Cir.1994). See also Porth v. State, 868 P.2d 236 (Wyo.1994); Grable v. State, 601 P.2d 1001 (Wyo.1979). The defendant in Kwallek presented appropriate and timely objections to the testimony which was given about his co-conspirator's guilty plea. 596 P.2d at 1376. The Court determined that the trial court's admission of the guilty plea evidence amounted to a prejudicial error. Id.

[136] We have also made clear that when a defendant raises no objection at trial we must consider such claims under a plain error standard of review.

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 which materially prejudiced him. Yetter v. State, 987 P.2d 666, 668 (Wyo.1999) (quoting Sandy v. State, 870 P.2d 352, 358 (Wyo.1994)); see also Mora v. State, 984 P.2d 477, 480 (Wyo.1999).

Mazurek v. State, 10 P.3d 531, 535 (Wyo.2000). See also Capshaw v. State, 11 P.3d 905, 913 (Wyo.2000).

[137] In this case, as was the case in both Mazurek and Urrutia, appellant did not object to the statements made by the prosecutor of which he complains. In Mazurek, at 539, this court, citing United States v. Mitchell, 1 F.3d 235, 241-42 (4th Cir.1993), set forth several factors that must also be considered in evaluating whether there was prejudicial plain error at the trial level. These factors are:

1) The degree to which the prosecutor's remarks have a tendency to mislead the jury and prejudice the accused;
2) Whether the remarks were isolated or extensive;
3) The strength of the competent proof to establish guilt, absent the remarks;
4) Whether the comments were deliberately placed before the jury to divert attention to extraneous matters;
5) The presence or absence of a limiting instruction;
6) Whether there was a proper purpose for introducing the conviction;
7) Whether the conviction was improperly emphas1zed
8) Whether the conviction was used as substantive evidence of guilt;
9) Whether the error was invited by defense counsel;
10) Whether the failure to object could have been the result of tactical decisions; and
11) Whether, in light of all the evidence, the error was harmless.

[188] The prosecutor stated during voir dire: °

Now, as you heard, we have multiple people involved here. We have accused not only three men involved in the actions, but two young ladies who provided transportation and who talked about this beforehand.
It's probably not very surprising that at least one of these persons out of five decided to talk to the police when they were picked up. We anticipate that the young lady named Dawn O'Neill will testify, and she is actually an accomplice in the case.
Now the law says accomplice testimony alone is enough to convict, and we're going to have a lot more than that. But is there anybody here who would throw her testimony out in whole just because she's also been implicated in this thing?
She is not testifying out of the goodness of her heart.. She has reached an agreement concerning her charges.

[139] The following transpired during the testimony of O'Neill and Detectlve Jones, respectively:

Q: Did you give him a taped statement about what you knew about this offense at the time?
A: Yes, I did.
Q: And your testimony here today is a result of a plea agreement?
A: Yes, it is.
, Q: Okay. Did you give the same information to the police before you had the plea agreement?
A: Yes, I did.
Q: On May 8, 1999, did you speak to Ms. O'Neill, the witness who has just testified?
A: Yes, I did.
Q: At this time, she was a suspect in the matter?
A: Yes, she was.
Q: Now, at that time, had she been made any promises of any sort?
A: None whatsoever.
Q: Had she entered this plea agreement at that time?
A: No she had not.

[140] Finally, the prosecutor stated during his closing argument:

Finally, we want to look at-when a codefendant says something, your first reaction is to be a little bit skeptical.
Now, did she get a little bit of a deal? Yeah, she did, and not an unreasonable one and none of that changes the same statement she gave before- the deal.
He says, and I can say, "I was an innocent bystander." If we are to believe him, he is even less culpable than Dawn O'Neill in this situation.

It is clear that the first prong of the plain error test was satisfied. In addition, a clear and unequivocal rule of law was violated as Kwallek and its progeny dictate.

[T41] Appellant, however, has not shown that he suffered material prejudice as a result of the statements made by the prosecutor. In applying those factors set forth in Mazurek, 10 P.3d at 539, we do not recognize that the prosecutor's remarks had any significant tendency to mislead the jury and prejudice the accused. Further, the prosecutor's remarks were not extensive. As we have already explained, substantial evidence existed for the convictions of appellant. Indeed, even disregarding the testimony of O'Neill, who testified of events which occurred both before and after the main event, we find that substantial evidence existed for these convie-tions. Additionally, we find that the strength of the competent proof to establish appellant's guilt was substantial, absent any of the remarks made by the prosecutor.

[142] We also cannot conclude upon our review that the comments made by the prosecutor were deliberately placed before the jury to divert attention to extraneous matters. We further note, as this court did in Urrutia, 924 P.2d at 970, that, because the jury's attention was not inordinately directed to the improper statements, this case is distinguishable from Kwallek. In Kwallek, the defendant was prejudiced because the trial court twice overruled the defendant's objections and the jury may have been improperly left with the intent of the judge by these rulings. Obviously, that did not occur in this case, as no objections were made by appellant.

[T43] A limiting instruction was given to the jury in this case which minimized the statements of the prosecutor and any testimony given directly by O'Neill. Moreover, there does not appear to be an improper purpose for introducing the . conviction of O'Neill nor was it improperly emphasized. O'Neill's conviction was also not used as substantive evidence of appellant's guilt.

[144] Additionally, we conclude the asserted error of appellant may have been, at least in part, invited by his defense counsel. It is likely that the failure to object could have been the result of tactical decisions of that counsel. In this case the defense questioned O'Neill further about the cireum-stances surrounding her testimony upon cross-examination in an effort to discredit her testimony. Specifically, the following occurred:

Q: Again, Ms. O'Neill, [the prosecutor] stated the fact that you had a plea agreement with the State; is that correct?
A: Yes, that is.
Q: And you-you have been charged in this crime; is that correct?
A: That is correct.
Q: And your agreement is that you plead Conspiracy to Simple Robbery?
A: Yes.
Q: In exchange for that, you agreed to testify and cooperate with them; is that correct?
A: Yes, that is.
Q: Your agreement included that there would be no pen time asked if you had prior no felonies; is that correct?
A: Correct.
Q: But all other sentencing options are open?
A: Yes, they are.
Q: So- you have a possibility then of CAC. time or county jail time; is that correct?
A: That is correct.

[T45] This court recognizes that appellant's sole trial strategy was to assert that only Lee and Jones were involved in the criminal acts that occurred and that appellant just happened to be within Stone's apartment when these acts were initiated, that O'Neill did not witness any of the actions within Stone's apartment, and that she had entered into a plea agreement in return for her testimony implicating appellant. Accordingly, it appears that the statements made by the prosecutor may have served, in actuality, to benefit appellant in the theory proffered by him at trial.

[146] Finally, upon review of all the evidence presented, we conclude that the error asserted by appellant was harmless. Therefore, more than adequate support exists for our holding that plain error did not occur in this instance.

CONCLUSION

[T47] For the foregoing reasons, the convictions of appellant for aggravated assault with a deadly weapon, aggravated robbery, aggravated burglary, and. conspiracy to commit aggravated robbery are affirmed.

VOIGT, Justice,

dissenting.

[T48] I respectfully dissent. The appellant's convictions for aggravated assault with a deadly weapon, aggravated robbery, and aggravated burglary should be reversed because the jury was not adequately instructed as to the findings it had to make beyond a reasonable doubt in order to find the appellant guilty. As a result, we cannot have confidence in the verdict because we do not know if the jury made those findings.

[149] The issue that requires reversal of the appellant's convictions grows out of the language of Wyoming's accessory before the fact statute, Wyo. Stat. Ann. § 6-1-201 (LexisNexis 2001):

(a) A person who knowingly aids or abets in the commission of a felony, or who counsels, encourages, hires, commands or procures a felony to be committed, is an accessory before the fact.
(b) An accessory before the fact:
@ May be indicted, informed against, tried and convicted as if he were a principal;
(i) May be indicted, informed against, tried and convicted either before or after and whether or not the principal offender is indicted, informed against, tried or convicted; and
(Gi) Upon conviction, is subject to the same punishment and penalties as are prescribed by law for the punishment of the principal.

The specific problem is created by subsection (b)(i)-what does it mean to be "informed against, tried and convicted" as if a principal? In particular, how can a defendant be tried as a principal if the facts suggest he acted, if at all, as an accessory?

The appellant posits his argument as follows: (1) he was charged as a principal; (2) he had no notice he would be tried as an accessory; (8) the lack of notice violated his constitutional right to know the nature and cause of the accusation; and (4) there was insufficient evidence to convict him as a principal. I would reverse, despite the fact that the record does not fully substantiate this argument. It is true that neither the original information nor the two amended infor-mations contained any accessory language or mentioned Wyo. Stat. Ann. § 6-1-201. We have previously held, however, that "it is not necessary that the information refer to the aiding and abetting statute," because proof of a defendant's participation in the erime as an aider and abettor is sufficient to convict him of the principal crime. Hawkes v. State, 626 P.2d 1041, 1043 (Wyo.1981). Beyond that, nearly a month before trial in this case, the State filed and served on defense counsel a Notice of Intent which reads as follows:

COMES NOW, the State of Wyoming, by and through its undersigned attorney, and gives the Defendant notice, as it has at preliminary hearing, that the State will rely on the extent necessary on theories of co-defendant liability, aider and abett[olr theory and Pinkerton liability under the conspiracy charges; as well as any liability as a principal in each of the charged offenses in the above-captioned matter.

[T51] Admittedly, the language of this notice is less than precise, but it was sufficient to apprise the appellant of the State's aiding and abetting theory. Further, the probable cause affidavit attached to the original information clearly detailed the suspected roles of the appellant and his accomplices. And finally, although no transcript of such is included in the record, the appellant was afforded a preliminary hearing in the circuit court where, we may presume, he was further informed as to the factual allegations.

[152] It is not enough to say that an accessory before the fact may be tried as a principal or that the appellant knew that he would have to defend against the accusation that he acted as an accessory before the fact. We must inquire whether the jury was sufficiently instructed as to how to apply the law to the facts. A person who has not committed the acts of a principal may not be found guilty of the principal crime, under an aiding and abetting theory, unless the jury finds that the State has proved beyond a reasonable doubt that the person knowingly aided or abetted in the commission of a felony, or counseled, encouraged, hired, commanded or procured a felony to be committed.

[T 53] - Accessory before the fact is a separate and distinct offense from that of the principal crime. Linn v. State, 505 P.2d 1270, 1275 (Wyo.), cert. denied, 411 U.S. 983, 93 S.Ct. 2277, 36 L.Ed.2d 959 (1973); Goldsmith v. Cheney, 447 F.2d 624, 627 (10th Cir.1971). Consequently, the State must prove not just that someone committed the principal crime, but that the defendant " 'associated himself with and participated in the accomplishment and success of the criminal venture."" Fales v. State, 908 P.2d 404, 408 (Wyo.1995) (quoting Jones v. State, 902 P.2d 686-693 (Wyo.1995)). See also Haight v. State, 654 P.2d 1232, 1238 (Wyo.1982). What that means is the State must prove beyond a reasonable doubt the elements of the statutory crime of accessory before the fact.

[154] Wyoming has three pattern jury instructions (W.Cr.P.J.I.) covering accessory before the fact. The district court gave one of those instructions, but omitted the other two. Instruction No. 18 was based on W.Cr.P.J.I. 7.01A:

It is not necessary that the defendant personally did every act necessary to constitute the crime of Aggravated Robbery and Aggravated Burglary. It is enough if, acting with the intention that the crime be committed, he knowingly aided and abetted someone else to commit the crime of Aggravated Robbery and Aggravated Burglary or that he counseled, encouraged, hired, commanded or procured some other person to commit the erime of Aggravated Robbery and Aggravated Burglary and the crime was attempted or committed.

In addition, Instruction No. 19 recited for the jury the language of Wyo. Stat. Ann. § 6-1-201:

You are instructed that pertinent portions of the Wyoming Statutes provide as follows:
a. A person who knowingly aids or Abets in the commission of a felony, or who counsels, encourages, hires, commands or procures a felony to be committed, is an accessory before the fact.
b. An accessory before the fact:
i. May be indicted, informed against, tried and convicted as if he were a principal.

Finally, Instruction No. 20 defined "principal:"

A principal is a person involved in the commission of a felony who directly and actively commits the act constituting the crime.

[155] The district court did not, however, give W.Cr.P.J.L. 7.01B or 7.01C. W.Cr.P.J.I. 7.01C reads as follows:

Merely being present at the scene of a crime or merely knowing that a crime is being committed or is about to be committed is not sufficient conduct for the jury to 'find that the defendant was an accessory before the fact to that crime. The State must prove that the defendant knowingly associated himself with the crime in some way as a participant-someone who wanted the crime to be committed-and not as a mere spectator.

Omission of that particular instruction in any given case may or may not be error. The same cannot be said for W.Cr.P.J.I. 7.01B, which is the elements instruction for the crime of accessory before the fact:

The elements of being an Accessory Before the Fact to the Crime of are:
1. On or about the _ day of: [200] ?
2. In County, Wyoming
3. The Defendant,
4. Knowingly [aided or abetted another person in the {commission of} {attempt to commit} the crime of ] [counseled, encouraged, hired, commanded or procured the crime of to be committed by another person}, and
5. That other person [committed] [attempted to commit] the crime of
If you find from your consideration of all the evidence that each of these elements has been proved beyond a reasonable doubt, then you should find the Defendant guilty.
If, on the other hand, you find from your consideration of all the evidence that any of these elements has not been proved beyond a reasonable doubt, then you should find the Defendant not guilty.

Without the giving of this instruction, or something akin to it, for each of the three non-conspiracy crimes, we cannot .be sure that the jury submitted facts tending to prove the appellant was an accessory before the fact to the "beyond a reasonable doubt" test. We would never countenance the failure to give an elements instruction with any other crime, and we should not countenance it with the crime of aiding and abetting.

[1 56] I would reverse.

      . ''The doctrine imposing liability on a conspirator for all offenses committed in furtherance of the conspiracy, even if those offenses are actually performed by coconspirators. Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946)." Black's Law Dictionary at 1168 (7th ed.1999).

      . For a brief analysis of the role of this statute in abrogating the common law distinctions between principals and accessories, see Jahnke v. State, 692 P.2d 911, 920-21 (Wyo.1984). Jahnke suggests the following legislative intent:
      The result is that differences in the manner of participation by the parties to the commission of a felony do not affect their individual culpability for the crime. Each, whether he is the principal, an aider and abettor, or an accessory before the fact, is treated as a principal for purposes of punishment.
      Id. at 921 (emphasis added).

      . This instruction, in and of itself, may have created reversible error because it lists only aggravated robbery and aggravated burglary, leaving out aggravated assault with a deadly weapon.

      . See Virgilio v. State, 834 P.2d 1125, 1128 (Wyo.1992) and Kavanaugh v. State, 769 P.2d 908, 911 (Wyo.1989) for examples of accessory before the fact elements instructions that were given to the jury.


source: Caselaw Access Project

license: Public Domain

text:
    2002 WY 71
    Juan BURTON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 00-281.
    Supreme Court of Wyoming.
    May 14, 2002.
    Rehearing Denied June 18, 2002.

      Kenneth Koski, Public Defqhder; Donna Domonkos, Appellate Counsel; Tina Kerin, Assistant Appellate Counsel; Diane E. Cour-selle, Director, Defender Aid Program; Kimberly Grosshuesch, Student Intern; and Amanda Wilson, Student Intern, Representing Appellant. Argument by Ms. Wilson.
    Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General; Devon O'Connell Coleman, Interim Faculty Director, Prosecuwtion Assistance Clinic; and Denise A. Tim-mermans, Student Intern, Representing Ap-pellee. Argument by Ms. Timmermans.
    . Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
   LEHMAN, Chief Justice.

[T4 11 Appellant Juan Burton appeals from his conviction for taking indecent liberties with a child, in violation of Wyo. Stat. Ann. § 14-3-105 (LexisNexis 2001). He claims that he is entitled to have his conviction reversed because the prosecutor engaged in misconduct in his closing argument and elicited improper opinion testimony from a detective who investigated the case. In addition, Burton claims that the trial court erred by allowing the State to amend the information just prior to the trial to change the date of the charged offenses.

[12] We affirm.

ISSUES

[1.8] Burton presents the following issues on appeal:

I. Did plain error occur when the trial court allowed the prosecutor's closing arguments to prey upon jury passion and prejudice, mislead the jury as to the facts and the law, introduce issues outside of the charges, use bad character evidence, attack defense counsel's trial strategy, and vouch for the witnesses' credibility; the trial court also abused its discretion when it denied Mr. Burton's motion for a new trial in spite of the highly prejudicial pros-ecutorial comments made in closing argument? .
II. Did the trial court err when it permitted the prosecution to elicit opinions from the State's witness about the credibility of another witness?
III. Did the [trial] court abuse its discretion by allowing an untimely amendment of the information to change the date of the charged crime, which resulted in prejudice to Mr. Burton?

FACTS

[14] Eighteen-year-old Kara Jess moved to Casper during the summer of 1998. She initially lived with a friend but moved out of their shared apartment after a disagreement and began living in her car. Jess met Burton and moved into his apartment. Burton was thirty-six years old at the time. Shortly thereafter, Jess became acquainted with the victim, who was a sixteen-year-old female high school student. Jess introduced the victim to Burton.

[15] On August 28, 1998, Jess picked the victim up at school, and they went to Burton's apartment. . Burton, Jess, and the vie-tim listened to music and used illegal drugs. Later in the day, Jess and the victim went to Lucas Edwards' apartment, which was located in the same apartment complex. Jess, Edwards, and the victim spent the evening drinking alcoholic beverages, listening to music, and watching movies. The victim eventually passed out on a blow-up couch in Edwards' living room. She later moved to a nearby bed to sleep.

[T 6] lAccording to the victim, Burton came to Edward's apartment and told her that she could sleep at his apartment. The victim went to Burton's apartment,. alone, and lay down to sleep on the floor in a large closet, which was where Burton usually slept. The victim testified that, sometime during the night, Burton returned to the apartment and lay down beside her in the closet. She awoke later to find Burton's hand on her stomach. The victim told Burton to leave and went back to sleep. Throughout the night, the victim floated in and out of consciousness. Each time she awoke, she found Burton making increasingly more invasive sexual contact with her. The victim resisted by telling Burton that she was not interested in his advances, rolling away from him, and pushing his hand away. According to her testimony, he eventually engaged in sexual intercourse with her.

[17] The next morning, the victim returned to Edward's apartment and spoke to Jess and Edwards. She told them that Burton "was trying to do stuff with her" and that she thought that she had been raped. Edwards testified that he confronted Burton about the victim's claim and Burton denied that he had raped her, but admitted that he had touched her genitals.

[T8]l A few weeks later, the vietim and her mother had an argument about the vie-tim's rebellious behavior. During that argument, the victim's mother asked her why she was behaving badly and the victim told her mother that she had been raped. Her mother called the police and reported the incident.

[T9] Burton was charged with first degree sexual assault and taking indecent liberties with a child. Burton pled not guilty, and the trial court held a jury trial in September of 1999. At the conclusion of the trial, the jury returned a verdict finding Burton not guilty of first-degree sexual assault and guilty of taking indecent liberties with a child. Burton filed a motion for judgment of acquittal and a motion for a new trial He claimed, in his motion for a new trial, that he had not received a fair trial because certain comments made by the prosecutor during his closing argument were improper and prejudicial. The trial court denied Burton's motions and, subsequently, entered a judgment and sentence against him. Burton appealed to the Wyoming Supreme Court. Additional facts relevant to specific issues will be set forth in our discussion of those issues.

DISCUSSION

A. Prosecutorial Misconduct in Closing Argument

[T10] Burton contends that the trial court erred by allowing the prosecutor to make various improper comments during his closing argument. The State insists that the prosecutor's comments were appropriate and that, in any event, Burton was not prejudiced by the remarks.

1. Standard of Review

[111] In reviewing a claim of prosecutorial misconduct in closing argument, the court looks at the entire record to determine whether the defendant's case was so prejudiced by the improper comments as to result in the denial of a fair trial. Capshaw v. State, 10 P.3d 560, 567 (Wyo.2000); Metzger v. State, 4 P.3d 901, 910 (Wyo.2000). The challenged comments are judged in the context of the prosecutor's entire argument, considering the context of the statements and comparing them with the evidence produced at the trial. Helm v. State, 1 P.3d 635, 639 (Wyo.2000).

[112] Appellant objected to the first statement addressed herein, and the trial court sustained his objection. Appellant also renewed his objection after the trial by filing a motion for a new trial. When an objection is launched to a statement made in closing argument, we defer to the trial court's ruling in the absence of a clear or patent abuse of discretion. Gayler v. State, 957 P.2d 855, 860 (Wyo.1998). Even then, reversal is not warranted unless a reasonable probability exists, absent the error, that the appellant may have enjoyed a more favorable verdict. Gayler, at 860. See also Metzger, 4 P.3d at 910. Similarly, the Wyoming Supreme Court reviews a trial court's decision to deny a motion for a new trial by applying the abuse of discretion standard. Marquez v. State, 12 P.3d 711, 718 (Wyo.2000).

[113] Burton did not object to the remainder of the challenged statements at trial; consequently, we review his claims by applying the plain error standard. Lane v. State, 12 P.3d 1057, 1064 (Wyo.2000). To demonstrate plain error, Burton "must show that the record clearly shows an error that transgressed a clear and unequivocal rule of law which adversely affected a substantial right." Taylor v. State, 2001 WY 13, ¶ 16, 17 P.3d 715, ¶ 16 (Wyo.2001). Reversal of a conviction on the basis of prosecutorial misconduct, which was not challenged in the trial court, is appropriate only when there is "a substantial risk of a miscarriage of justice." Capshaw, 10 P.3d at 567 (quoting Dice v. State, 825 P.2d 379, 384 (Wyo.1992)).

2. Comments Emphasizing Burton's Drug Use and Appealing to Community Sentiment

[T14] Burton claims that the prosecutor improperly emphasized his drug involvement and appealed to community sentiment in the following exchange:

[PROSECUTOR]: Ladies and gentlemen, the State understands that we have just introduced to you a completely and-hopefully, an unknown world that's going on out there right here in your community. It's the drug world.
You heard a lot of testimony about these young kids and the behavior that they were involved with. But ask yourself, ladies and gentlemen, would they ever get the opportunity to be doing these kinds of things if not for the likes of the Juan Burtons of the world?
[DEFENSE COUNSEL]: Your Honor, I'm going to object to that. I think that's objectionable. -
THE COURT:; I think it is, and it's extremely improper. I'll sustain the objection. The jury should disregard that.

[T15] In closing argument, counsel may reflect upon the evidence admitted at trial and draw reasonable inferences from that evidence. Gayler, 957 at 861; Armstrong v. State, 826 P.2d 1106, 1116 (Wyo.1992). Arguments which are calculated to appeal to the jury's prejudice or passion are improper because they pose a risk that the accused may be convicted for reasons wholly irrelevant to his guilt or innocence. Gayler, 957 P.2d at 861; Armstrong, 826 P.2d at 1116. Accordingly, it is improper for a prosecutor to encourage the jury to convict a defendant in order to protect the community rather than upon the evidence presented at trial, See e.g., Gayler, 957 P.2d at 860-62.

[116] In this case, the prosecutor stated that the jury had heard evidence about the drug world in Casper. The victim, Kara Jess, and Lucas Edwards all testified about various drug-related activities in which they were involved. The prosecutor's comment was, therefore, appropriate because it was a reasonable restatement of the evidence presented at trial.

[117] The prosecutor's remark suggesting that the Kids would not have access to drugs if it were not for the "Juan Burtons" of the world is another matter. The trial judge apparently believed that the prosecutor's comment was improper because he sustained defense counsel's objection and instructed the jury to disregard the statement. Nevertheless, the trial court judge denied Burton's motion for a new trial. In denying Burton's motion, the trial judge noted that the comment was isolated and that he had sustained Burton's objection to the comment and instructed the jury to disregard it. The trial judge also stated that Burton had not shown that he was prejudiced by the comment.

[118] Pursuant to W.R.Cr.P. 33, the trial court may grant a new trial if it is "required in the interest of justice." Even if we assume that the prosecutor's comment was improper, we conclude that the trial court did not abuse its discretion when it denied Burton's motion for a new trial. The trial court properly sustained defense counsel's objection and instructed the jury to disregard the improper argument. In the absence of any indication to the contrary, "Iwle must assume that the jury followed the court's curative instruction." Marquez, 12 P.3d at 717 (quoting Burke v. State, 746 P.2d 852, 857 (Wyo.1987)). The prosecutor respected the trial court's ruling and did not return to the inappropriate line of argument. Thus, the prosecutor's conduct was not so egregious as to require a new trial in the interests of justice, and the trial court did not abuse its discretion by refusing to grant Burton's motion for a new trial.

[119] On a related matter, Burton argues that the prosecutor made an improper appeal to community sentiment when he stated: "You ladies and gentlemen have the opportunity, the power to say that we are going to protect kids like [the victim] in our community." Burton did not, however, object to this comment; consequently, we will apply our plain error standard in reviewing his claim on appeal.

[120] As we stated, supra, it is inappropriate for a prosecutor to appeal to the jury's passion and prejudice and encourage the jury to convict to protect the community rather than upon the evidence presented at trial. See e.g., Gayler, 957 P.2d at 860-62. A prosecutor may, however, remark that conviction of the accused will have the incidental effect of protecting the community if he does not urge the jury to convict on a basis other than the evidence against the accused. See Hodgins v. State, 962 P.2d 153, 158 (Wyo.1998).

[T21] The challenged comment was part of a larger point being advanced by the prosecutor:

You ladies and gentleman have the opportunity, the power to say that we are going to protect kids like [the victim] in our community, The State wishes that we could have introduced to you a victim that was on the honor roll, that was the best athlete on the volleyball team, and that was the A-1 American kid of the world.
But we are never going to see those kind of kids testifying to the things that [the victim] had to testify to. Because those aren't the kind of kids that find themselves in that situation.

[122] When reviewed in context, it is apparent that the prosecutor was not asking the jury to convict Burton on any basis other than the specific evidence that he sexually assaulted the victim. The prosecutor was simply pointing out that the victim was, because of her lifestyle, especially susceptible to Burton's inappropriate advances and that children in her situation are in need of protection. This argument was not an improper appeal to community sentiment. Burton has not, therefore, satisfied the second prong of the plain error analysis because he has not shown a transgression of a clear and unequivocal rule of law.

3. Description of the Crime of Taking Indecent Liberties with a Child

[123] Burton claims that the prosecutor committed misconduct in his closing statement when he incorrectly described the crime of indecent liberties and improperly equated drug use with taking indecent liberties with a child under Wyo. Stat. Ann. § 14-3-105 (LexisNexis 2001). The prosecutor stated:

[PROSECUTOR]: Ladies and Gentlemen, before you go back into that room and deliberate, take a long, hard look at the defendant, Juan Burton, and mentally place him next to Kara Jess, [the victim], and Lucas Edwards and ask yourself: What was he doing with these kids?
Is it a man who is just providing drugs for them? Or is it a man who's trying to totally control them? And does he have improper, immoral and indecent motives by being involved with these young kids?

Burton also asserts that the prosecutor committed further misconduct and attempted to inject issues, other than the issue of his guilt or innocence, into the trial when he made the following statements:

[Burton] is the adult with the responsibility in not providing [the minors] a place to do drugs, not providing them with the drugs. He is the adult,. ladies and gentlemen, that is not supposed to take indecent liberties with a child.

[124] The erime of taking indecent liberties with a child is set out in Wyo. Stat. Ann. §. 14-3-105(a) (LexisNexis 2001):

(a) Except under circumstance constituting sexual assault in the first, second or third degree as defined by W.S. 6-2-302 through 6-2-304, any person knowingly taking immodest, immoral or indecent liberties with any child or knowingly causing or encouraging any child to cause or encourage another child to commit with him any immoral or indecent act is guilty of a felony. Exeept as provided by subsection (b) of this section, a person convicted under this section shall be fined not less than one hundred dollars ($100.00) nor more than one thousand dollars ($1,000.00) or imprisoned in the penitentiary not more than ten (10) years, or both.

The trial court instructed the jury on the elements of the crime of taking indecent liberties with a child in accordance with § 14-3-105(a). Burton suggests that the court should have defined the phrase "immodest, immoral or indecent liberties" for the jury. This court has, however, repeatedly refused to precisely define the phrase "immodest, immoral or indecent liberties." See e.g., Chapman v. State, 2001 WY 25, ¶ 28, 18 P.3d 1164, ¶ 28 (Wyo.2001); Sorenson v. State, 604 P.2d 1031, 1034-35 (Wyo.1979). Instead, the jury is allowed to apply its common sense by looking at the totality of the cireumstances pertaining to the culpability of the accused's conduct. Chapman, at ¶ 28.

[125] In this case, the trial court properly instructed the jury on the elements of taking indecent liberties with a minor, without providing a definition of the phrase "immodest, immoral or indecent liberties." It is, however, clear that the indecent liberties statute punishes inappropriate sexual conduct with children. Chapman, at ¶ 28. Consequently, a statement suggesting that providing drugs to children violates § 14-3-105 would be incorrect. "[Where a prosecutor repeatedly misstates the law to a jury, and thereby plants an erroneous conception which prejudices the defendant, a fair trial may, under certain cireumstances, have been denied." Jones v. State, 580 P.2d 1150, 1154 (Wyo.1978).

[126] After carefully reviewing the entire closing argument, we are not convineed that the prosecutor was informing the jury that providing children with drugs and a place to do drugs was a violation of the indecent liberties statute. In addition, we do not believe that the prosecutor was attempting to inject tangential issues, beyond the issue of Burton's guilt or innocence, into the case. In other portions of his argument, the prosecutor made it very clear that Burton was not on trial for his drug activities. The prosecutor stated, further,. that sexual contact between the victim and Burton would constitute immoral and indecent liberties. In addition, the trial court appropriately instructed the jury on the elements of the offense. Consequently, we cannot say that Burton has shown a violation of a clear and unequivocal rule of law or that he was prejudiced by the comment.

4. Character Evidence

[127] Burton next complains that the prosecutor asked the jury to conviet him for his bad character rather than on the evidence presented against him. The prosecutor stated:

Now, I know you're probably thinking right now, well, the defendant is not on trial for furnishing drugs to these minors and to these kids. But it has a lot to say about his character. Character has a lot to say about what a person-what a man will try and not try to get away with.

Burton apparently asserts that the evidence of his drug activities was evidence of bad character. He does not, however, contend that the evidence of his drug activities was inadmissible. Burton argues, instead, that the prosecutor violated W.R.E. 404(b) when he asked the jury to infer that Burton acted in conformity with his bad character, which was evidenced by his drug activities, by trying to "get away with" taking indecent liberties with the victim. '

[128] Wyoming Rule of Evidence 404(b) prohibits use of evidence of other bad acts to prove a person's character for the purpose of showing that he acted in conformity with his bad character. Brower v. State, 1 P.3d 1210, 1213 (Wyo.2000). That rule provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

W.R.E. 404(b).

[T29] The prosecutor's choice of language was not artful. .He was, obviously, courting an objection when he used the term "character." Nevertheless, when the prosecutor's comment is reviewed in the context of his entire closing argument, it is clear that he was not asking the jury to infer that Burton had committed the charged crimes simply because he had committed other bad acts by supplying minors with drugs and a place to use them. Considering the entire record on appeal, we cannot say that Burton has shown a violation of a clear and unequivocal error of law that substantially. prejudiced him.

5. Attack on Defense Counsel

[§30] Burton maintains that the prosecutor improperly attacked defense counsel's trial tactics when he made the following remarks in the rebuttal portion of his closing argument:

Doesn't it make you a little bit angry, ladies and gentlemen, that [defense coun-sell basically makes reference to Alexa Kidd, their only witness, as being the most credible witness that testified in the last two days? And then he wants to refer to Lucas Edwards and Kara Jess as the State's witnesses.
So don't be angry. Don't let [defense counsel] conjure up anger in your mind that the State is trying to rely on these witnesses as our witnesses, as our friends. They're friends of the defendant.

[181] A prosecutor may not launch personal attacks against defense counsel to inflame the passions and prejudices of the jury. Leiker v. State, 994 P.2d 917, 920 (Wyo.1999); English v. State, 982 P.2d 139, 148 (Wyo.1999). The general rule was articulated by the United States Supreme in United States v. Young, 470 U.S. 1, 10, 105 S.Ct. 1038, 1043, 84 L.Ed.2d 1 (1985):

It is firmly established that the lawyer should abstain from any allusion to the personal peculiarities and idiosyncrasies of opposing counsel. A personal attack by the prosecutor on defense counsel is improper, and the duty to abstain from such attacks is obviously reciprocal.

Young, 470 U.S. at 10, 105 S.Ct. at 1043 (quoting ABA Standards for Criminal Justice 4-7.8, p. 4.97). See also English, 982 P.2d at 148 (Wyo.1999).

[182] In his own closing argument, defense counsel repeatedly stated that the testimony given by the State's witnesses, including Jess, Edwards, and the victim, was inconsistent and unreliable. Defense counsel also argued that defense's alibi witness, Alexa Kidd, was truthful in her testimony. The prosecutor's comments in rebuttal were obviously aimed at countering defense counsel's suggestions that Kidd was credible and the State's witnesses were not. Moreover, he was trying to emphasize that the witnesses called by the State were Burton's friends rather than friends of the State. Taken in context, the prosecutor's comments cannot be classified as personal attacks on defense counsel, and there is no indication that the prosecutor intended to improperly inflame the passions and prejudices of the jury against Burton or defense counsel.

6. Vouching for Credibility of Witnesses.

[133] Burton claims that the prosecutor improperly vouched for the credibility of the State's witnesses when he made the following statement in the rebuttal portion of his closing argument:

But [the State's witnesses] were blatantly honest with you about lot of things. They had to admit they were doing drugs.... That's a hard thing to admit.

[T34] A prosecutor may not, even when responding to defense arguments, personally vouch for the credibility of the State's witnesses. Lane v. State, 12 P.3d 1057, 1065 (Wyo.2000); Harper v. State, 970 P.2d 400, 403 (Wyo.1998).

When the prosecutor asserts his eredi-bility or personal belief, an additional factor is injected into the case. This additional factor is that counsel may be perceived by the jury as an authority whose opinion carries greater weight than their own opinion: that members of the jury might be persuaded not by the evidence, but rather by a perception that counsel's opinions are correct because of his position as prosecutor, an important state official entrusted with enforcing the eriminal laws of a sovereign state. While the prosecutor is expected to be an advocate, he may not exploit his position to induce a jury to disregard the evidence or misapply the law.

Lane, 12 P.3d at 1065 (quoting Barela v. State, 787 P.2d 82, 83-84 (Wyo.1990)).

[1385] In this case, the comments made by the prosecutor were not improper. He did not personally vouch for the credibility of the witnesses. The prosecutor was simply pointing out that the witnesses had been forthright about their drug use notwithstanding the fact that it was difficult to discuss those matters in a public forum. He drew a reasonable inference from the evidence that the witnesses would have no motive to lie by confessing their drug use because use of drugs is illegal and is not accepted by general society. The prosecutor's comment was not improper.

7. Misrepresentation of Facts

[136] Burton asserts that the prosecutor committed misconduct by misrepresenting a fact in the rebuttal portion of his closing argument. He claims that the prosecutor suggested that Burton was a "convicted felon" even though there was no evidence in the record to support that statement. The relevant portion of the trial transcript states:

[PROSECUTOR:] You're going to have to throw all [the States' witnesses'] testimony out, ladies and gentleman, if you're going to believe this Alexa Kidd and that she was the one that spent the night in the closet.
[Kidd is] the one that says [she and Burton are] just friends, but yet she loves the defendant and doesn't even know the defendant's age, a convicted felon for distributing illegal drugs. And they're asking you to believe her testimony over these other kids.
[DEFENSE COUNSEL:] Your Honor, what is this convicted felon? Who are you referring to?
[PROSECUTOR:] I'm referring to the witness.
[DEFENSE COUNSEL:] | That's entirely improper.
THE COURT: I think it is. strike the last comment, Counsel. And TPI I don't believe that was in evidence. I think it was highly inappropriate.
You may continue.
[PROSECUTOR]: Your Honor, I was just-object to that in that I do recall that evidence testified to by their witness. And I guess we can look on the record.
THE COURT: I believe there was a reference to charges. But as to convictions, I don't know. I'm not sure.
[DEFENSE COUNSEL]: Your Honor, perhaps [the prosecutor] was referring to Ms. Kidd's admission that she had been convicted of a drug felony.
[PROSECUTOR]: That's what I'm referring to, Judge.
[DEFENSE COUNSEL]: I thought he was referring to the defendant, Your Hon- or.
[PROSECUTOR]: No. I was referring to their witness, Alexa Kidd, Your Honor. She testified.
THE COURT: Okay. With that clarification, I'll overrule any objection. I don't know that that was clear as to where the reference was being made at that point in time. I apologize if I did not hear it correctly. And I'll leave it to the jury to recall specifically what counsel's reference was to.
To the extent that it was a reference to Ms. Kidd and her testimony, then I'll set my ruling aside.
You may proceed.
[PROSECUTOR]: Point being, ladies and gentlemen, that they want you to believe Alexa Kidd-she was the one that I was referring to-over all of the other witnesses in trying to provide an alibi for the defendant, somebody that she's indicated that she loves.

[137] A prosecutor may not misrepresent the evidentiary facts in his closing argument. See generally Miller v. State, 830 P.2d 419, 426 (Wyo.1992). Our review of the entire passage quoted above reveals that the prosecutor did not intentionally misrepresent any fact. Although the prosecutor's comment about the "convicted felon" was not articulated very clearly, the matter was clarified during the ensuing colloquy among the prosecutor, defense counsel, and the court. Their exchange, which took place in front of the jury, made it very clear that the prosecutor was referring to Alexa Kidd, and not Burton, as being a "convicted felon." That reference was entirely in keeping with the evidence presented at the trial,. Kidd testified on direct, as follows:

Q. Now, you've told us that you've done quite a few drugs.
A. Yes, siv.
Q. That eventually got you in some trouble, didn't it?
A. Yes. I got felony with intent to deliver on April 6th.
Q. Okay. And you pled guilty to that?
A. Yeah.

The trial court did not commit any error in resolving this matter at trial.

B. Opinion Testimony

[¶ 38] Burton claims that the trial court erred when it permitted the State to elicit testimony from Detective Kirkendall concerning his opinion of the victim's eredi-bility. The jury has the responsibility to resolve the factual issues, judge the credibility of witnesses, and ultimately determine whether the accused is guilty or innocent. Newport v. State, 983 P.2d 1213, 1215 (Wyo.1999); Gayler, 957 P.2d at 860; Zabel v. State, 765 P.2d 357, 362 (Wyo.1988). Testimony by an expert witness, concerning his belief that the defendant is guilty of the offense invades the province of the jury and generally'mandates reversal of the convietion. See Stephens v. State, 774 P.2d 60, 67-68 (Wyo.1989); see also Newport, at 1215-16. Therefore, the general rule under Wyoming law is that it is error per se for the State to elicit testimony from an expert witness concerning his opinion of the guilt of the accused. Stephens, at 68; see also Metzger v. State, 4 P.3d at 905. We do not, however, apply the error per se standard in reviewing a claim that a witness improperly vouched for the credibility of another witness. Instead, when the defendant did not object at trial to the testimony, we apply the plain error standard to review assertions that one witness vouched for the credibility of another. Newport, 983 P.2d at 1215.

[¶ 39] The State called Detective Kirken-dall to testify at Burton's trial The detective investigated the victim's report that Burton had sexually assaulted her. The State elicited the following testimony from Detective Kirkendall on direct examination:

Q. Okay. How did you begin your investigation?
A. I contacted [the victim] on October 20th of '98 and asked her to come down for an interview. I took a taped-transeribed statement as far as her recollection of the facts and what had occurred there.
Q. Okay. And that was a taped interview, correct?
A. Yes, it was.
Q. And you heard her testlfy today?
A. Yes.
Q. Okay. What-Was her testimony consistent with the information she provided you back on October 20th?
A. Yes, There was additional testimony that came out today. The other times that she indicated today on the stand that she awoke, it was the first I heard of that.
Q. Okay. But generally as to what happened to her with the sexual assault, was that the same?
A. Yes.

[¥40] In his redirect questioning of De-tectlve KJrkendall the prosecutor elicited the following testimony: |

«BY [PROSECUTOR]:
Q. You would say, Detective Kirkendall, that [the victim] elaborated a lot more today than when you spoke to her and tape-recorded her conversation back in October?
A. Yes.
Q. Okay. Would you say that I asked a lot more specific and detailed questions than you did in your interview?
A. She's been taken through the interview process several times now. Perhaps that's helped her recollection. She appears to be out from under the influence of the nareotics that she was then. Perhaps she has a clearer head.
Q. You didn't find her statements to be inaccurate compared to the statements she provided you back in October, though did . you?
A. No.
Q. She just added more information?
A. Correct.

[T41] Burton claims that, by testifying that the victim's testimony at trial was consistent with the statement she provided during the investigation, Detective Kirkendall impermissibly vouched for the credibility of the victim and gave the impression that he believed Burton was guilty of the sexual assault. We disagree with Burton's interpretation of the detective's testimony. The detective merely stated that the victim's rendition of the events at trial was in harmony with her earlier statements. He did not state that he believed the victim's version of the events or that he believed Burton was guilty of the offenses. Even though the detective's testimony may have had the incidental effect of bolstering the victim's credibility, the trial court did not violate a clear and unequivocal rule of law when it allowed the testimony into evidence at trial. Curl v. State, 898 P.2d 369, 374 (Wyo.1995); Newport, 983 P.2d at 1215.

C. Amendment of Information

[27] [142] Burton maintains that the trial court erred by granting the State's motion to amend the information shortly before the trial commenced. He claims that the amendment prejudiced his ability to present a defense. On September 17, 1999, the State filed a motion to amend the information to change the date of the sexual assault from "on or about September 5, 1998" to "on or about August 28, 1998." Just prior to the commencement of the trial on September 20, 1999, the trial court heard arguments on the motion. The State asserted that there had been confusion over the date of the alleged assault since the beginning of the investigation and that, while preparing the case, the State discovered that August 28, 1998, was the date of the assault. Defense counsel objected to the amendment, claiming that the amendment would prejudice the defense. Defense counsel asserted that the defense had an alibi witness to present and that the change of the date may "skew" the case. Defense counsel did not, however, elaborate on how the. amendment would "skew" Burton's case. The district court referred to Wyoming Rule of Criminal Procedure 3 and ruled that amending the information to change the date of the alleged offenses would not result in substantial prejudice to the defendant.

[1 48] Wyoming Rule of Criminal Procedure 3(e) governs amendments of information. That rule states:

(e) Amendment of Information or Citation. Without leave of the court, the attorney for the state may amend an information or citation until five days before a preliminary examination in a case required to be tried in district court or until five days before trial for a case not required to be tried in district court. The court may permit an information or citation to be amended:
(1) With the defendant's consent, at any time before sentencing.
(2) Whether or not the defendant consents:
(A) At any time before trial if substantial rights of the defendant are not prejudiced.
(B) At any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not preJudmed

W R.Cr.P. 3(0).

[144] Wyoming Rule of Criminal Procedure 3(e) grants discretion to a trial judge in deciding whether or not a motion brought by the State to amend the information just prior to trial should be granted. Consequently, we review the trial court's decision by applying our abuse of discretion standard. See generally W.R.Cr.P. 3(e). In deciding whether or not the trial court abused its discretion, this court must "determine whether the trial court could reasonably conclude as it did and whether any facet of its ruling was arbitrary or capricious." Cook v. State, 7 P.8d 58, 58-59 (Wyo0.2000) (quoting Vaughn v. State, 962 P.2d 149, 152 (Wyo0.1998)).

[T45] Burton has made no showing that he was prejudiced by the amendment to the information. He presented his alibi witness, Alexis Kidd, at the trial. Although she could not identify the exact date, Kidd testified that she recalled a night at the end of August of 1998, when the victim spent the night in the apartment complex where Burton resided. In contrast to the victim’s testimony, Kidd testified that the victim stayed in Lucas Edwards’ apartment rather than at Burton’s apartment. Kidd also testified, in relevant part, as follows:

PROSECUTOR: Okay. Now, going back to the end of August of 1998, I was confused. Do you know what day of the week August 28th is?
[JESS]: No. I just know that, when she was there, it was close—It was like Friday or Saturday. It was on the weekend..
Q: Okay. And your testimony is [the victim] did or did not spend the night at [Burton’s] apartment?
A. She did not.
Q. . She never spent the night there?
A. No, not to my—No.
Q. Now, are you telling us that you spent every night with [Burton]—
A. Yes.
Q. —back in August of 1998? ■
A. Yes. I lived there. And .if I wasn’t • there, he. was with me at my mother’s.
Q. So he was constantly with you?
A. Yes.

There is no indication that Kidd would have been able to pinpoint the daté any more precisely if the information had not been amended. The charge of “on or about August 28,1998” did not hinder Burton’s ability to present his alibi defense.

[¶46] Burton claims that the amended information also interfered with his ability to cross-examine the victim’s mother regarding the date of the offense. The record does not, however, bear out Burton’s assertion. The victim testified that her parents were “out of town” when the offense occurred. The defense was able to elicit testimony from the victim’s mother that she and her husband were “in town” on the weekend of August 28, 1998. The defense was able, therefore, through its cross-examination of the victim’s mother, to show inconsistencies between the testimony; of the vjctim and her mother. The defense was not hindered in its ability to impeach the State’s witnesses, and Burton has not shown that he was substantially prejudiced by the amendment. .

CONCLUSION

[¶ 47] The prosecutor did not commit misconduct in his closing argument because his statements were appropriate and they did not prejudice Burton. Moreover, Detective Kirkendall’s testimony did not include an improper statement concerning his opinion as to the crédibility-'of the victim or Burton’s guilt. Finally, the trial court did not err by allowing the State to amend the information prior to the'trial. •

[¶ 48] We affirm Burton’s conviction.

VOIGT, Justice,

dissenting, with which GOLDEN, Justice, joins.

[¶ 49] I would reverse because the prose-cutorial misconduct in closing argument was simply too egregious and too filled with potential prejudice to allow this conviction to stand. While I agree with the majority’s recitation of the standard of review, I would reach a different result through its application. The. prosecutorial misconduct in this case created a substantial risk of miscarriage of justice. ■ •

[¶ 50]' We have repeatedly recognized the “ ‘great latitude’ ” allowed counsel in closing argument. Helm v. State, 1 P.3d 635, 639 (Wyo.2000)' {quoting Montoya v. State, 971 P.2d 134, 136 (Wyo.1998)). At the same time, we have cautioned that argument must be kept within the evidence, and that “ ‘[statements calculated to inflame, prejudice or mislead the jury are not permitted.’ ” Helm, 1 P.3d at 639-40 (quoting Montoya, 971 P.2d at 136). And while prosecutors are no more limited in closing than are defense counsel, prosecutors have the additional duty to seek justice, not just to seek a conviction. Browder■ v. State, 639 P.2d 889, 893 ■ (Wyo. 1982). In particular, a prosecutor may not appeal to the jury’s sense of duty to help law enforcement by convicting the defendant nor may he appeal to the jury’s passion and prejudice. Gayler v. State,-957 P.2d 855, 861 (Wyo.1998). A prosecutor's closing argument must not inject issues into the trial that are broader than the guilt or innocence of the accused under the controlling law, thereby diverting the jury from its duty to decide the case on the evidence. Jeschke v. State, 642 P.2d 1298, 1302 (Wyo.1982). A prosecutor "is not allowed to urge the jury to convict an accused on any basis other than that the evidence shows guilt beyond a reasonable doubt." Gayler, 957 P.2d at 861.

[¶ 51] The central theme of these admonitions is that closing arguments must be premised upon the evidence. McLaughlin v. State, 780 P.2d 964, 970 (Wyo.1989) (quoting Schmunk v. State, 714 P.2d 724, 742 (Wyo.1986)). The purpose of closing argument is to allow counsel to review the evidence and to suggest to the jury reasonable inferences that can be drawn from that evidence. McLaughlin, 780 P.2d at 970 (quoting Schmunk, 714 P.2d at 742); Leiker v. State, 994 P.2d 917, 919 (Wyo.1999).

[¶ 52] Despite these clear principles of law, the prosecutor in the instant case began his closing argument with the following statements: f

Ladies and gentlemen, the State understands that we have just introduced to you a completely and hopefully, an unknown world that's going on out there right here in our community. It's the drug world.
._ You heard a lot of testimony about these young kids and the behavior that they were involved with. But ask yourself, ladies and gentlemen, would they ever get the opportunity to be doing these kinds of things if not for the likes of the Juan Burtons of the world?

[¶ 53] This argument was a direct invitation to the jury to convict the appellant, not because the elements of the crimes had been proved, but because the community needed to be protected from people like the appellant. The impropriety of this argument was then magnified when, shortly thereafter, the prosecutor added the following equally troublesome statement:

Now, I know you're probably thinking Tight now, well, the defendant is not on trial for furnishing drugs to these minors 'and to these kids. But it has a lot to say about his character. Character has a lot to say about what a person-what a man will try and not try to get away with.

[¶ 54] W.R.E. 404(a) provides that "[elvi-dence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular oceasion[.]" The purpose of this rule is to prevent the jury from conviet-ing a defendant based on the assumption that he must have acted in conformity with his " 'bad character,'" rather than on proof of the elements of the crime. Solis v. State, 981 P.2d 28, 30 (Wyo.1999) (quoting Brown v. State, 953 P.2d 1170, 1175-76 (Wyo.1998)). Character evidence is only admissible if it falls within one of the exceptions found in W.R.E. 404-that is, if it tends to prove something other than propensity to commit the charged crime-and if its relevancy outweighs the risk of prejudice. Solis, 981 P.2d at 30 (quoting Brown, 953 P.2d at 1175-76). Surely, what a prosecutor cannot accomplish with the introduction of evidence, he cannot accomplish through closing argument.

[¶ 55] The charged crimes in this case were first-degree sexual assault and indecent liberties with a minor. While the prosecutor had the right to alert the jury to proper inferences that could be drawn from the circumstances surrounding the alleged crimes, including the temporally related drug activities of the defendant and the victim, he did not have the right to ask the jury to convict the appellant (1) to help eradicate the "drug world," or (2) because of the appellant's character. In the context of the prosecutor's entire closing argument, especially including the other portions of that closing argument quoted in the majority opinion, I would conclude that this was an attempt to convict the appellant for reasons other than commission of the charged crimes.

[¶ 56] Finally, I would reverse because there is a reasonable possibility that the verdict may have been more favorable to the appellant had these improper arguments not been made. See Gayler, 957 P.2d at 862 and Browder, 689 P.2d at 895. There was no physical evidence of the alleged crimes and the testimony varied greatly from one witness to the next. The jury found the appellant not guilty of first-degree sexual assault, but guilty of indecent liberties with a minor. While such a verdiet is not necessarily inconsistent, it raises a red flag in the instant case because of the prosecutor's tendency in closing argument to blur the line between indecent liberties and providing drugs to minors.

[¶ 57] We have recently described the factors to. be considered when evaluating claims of prosecutorial misconduct:

Among the factors to be considered are the nature and gravity of the error, the prosecutor's duty to do justice and refrain from improper methods, the likely impact on the average juror, the quality of the prosecution's case, and the closeness of the case.

Warner v. State, 2001 WY 67, ¶ 23, 28 P.3d 21, 29 (Wyo.2001) (citing Earll v. State, 2001 WY 66, ¶ 16, 29 P.3d 787, 792 (Wyo.2001)). In the present case, all of these factors tend to support reversal of the conviction. In such case, we cannot hide behind our inability to know for certain that the misconduct influenced the verdict.

"If, when all is said and done, the convietion is sure that the error did not influence the jury, or had but very slight effect, the. verdict and the judgment should stand, except perhaps where the departure is from a constitutional norm or a specific command of Congress. But if one cannot say, with fair assurance after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand."

Warner, 2001 WY 67, ¶ 22, 28 P.3d at 28 (quoting Kotteakos v. United States, 328 U.S. 750, 763-65, 66 S.Ct. 1239, 1247-48, 90 L.Ed. 1557 (1946)).

[¶ 58] The appellant's right to a fair trial was prejudiced and his conviction should be reversed.