Carlos Yammon Pena v. State, 361 P.3d 862

Carlos Y. Peña previously received a suspended sentence with three years’ supervised probation after a 2011 larceny conviction; remainder of sentence suspended in 2012.
April–May 2013: Sheridan business owner Steven Bush discovered his flatbed trailer and mini-excavator missing; Bush located the excavator for sale on Craigslist and met the seller, Peña.
Deputies found the excavator’s VIN and plate showing it belonged to Bush’s company; Peña claimed the equipment belonged to family or was purchased from others in inconsistent stories.
At trial the jury convicted Peña of larceny; the State then moved to revoke Peña’s prior probation based solely on this new conviction.
The district court revoked probation and reimposed the remainder of Peña’s prior sentence (with credit for time served); Peña appealed both the larceny conviction and the probation revocation.

Issue	Plaintiff's Argument (Peña)	Defendant's Argument (State)	Held
Whether revocation of probation based solely on a conviction that is pending on appeal is proper	Revocation is improper when the underlying conviction is still on appeal	A conviction after trial is sufficient grounds to revoke probation even if the conviction is on appeal	Court held revocation is proper; will be undone if the conviction is later reversed
Whether Jury Instruction No. 11 impermissibly shifted burden of proof	Instruction improperly shifts burden and eliminates need to prove an element (only for possession cases)	Instruction correctly permits an inference from possession plus slight corroboration; applicable in larceny as well as burglary/possession cases	Court affirmed instruction as proper and not prejudicial
Whether evidence was insufficient as to the taking/carrying-away element of larceny	No evidence that Peña moved or carried away the stolen items (no asportation proof)	Tire-track evidence, vehicle near scene, Craigslist listing, fake photos and inconsistent statements permit inference of taking and carrying away	Court found evidence sufficient to prove taking and carrying away beyond a reasonable doubt

Mendicoa v. State, 771 P.2d 1240 (Wyo. 1989) (possession plus corroborating circumstances can support conviction)
McGarvey v. State, 55 P.3d 703 (Wyo. 2002) (possession of stolen goods is strong evidence; only slight corroboration required)
Budder v. State, 238 P.3d 575 (Wyo. 2010) (approved instruction identical to Instruction No. 11 in burglary context)
State v. Kelly, 438 A.2d 1335 (N.H. 2009) (collects authority permitting probation revocation based solely on a conviction pending appeal)