Wells v. State
613 P.2d 201
Wyo.
1980
Check Treatment

*1 WELLS, (Defendant), Russell Wyoming, Appellee

The STATE of

(Plaintiff).

No. 5252. Wyoming.

Supreme Court 20, 1980.

June Counsel, Schilling, App. Wyo- H.

Michael Defender, (de- Public for ming fendant). Legal (argued),

Lawrence In- J. Wolfe Gen., Gusea, tern, Atty. Asst. for James E. Troughton, D. appellee (plaintiff); John Stack, Gen., Deputy Atty. A. Atty. Gerald Div., Wolfe, J. Gen., Lawrence Criminal Intern, Legal on brief. J., RAPER, and McCLIN- C.

Before TOCK, ROONEY, THOMAS, JJ. ROSE RAPER, Justice. Chief grand larceny Appellant was convicted in violation of theft of vehicle for a motor *2 evidence, ap- At close of 6-7-301, Following the ver- State’s W.S.1977.1 he the trial ver- guilty, was sentenced a directed pellant’s dict of counsel moved for for a term of not imprisonment judge to facie case had ground prima dict on nor more than thirteen months less than denied. The The motion was proven. been State Peniten- Wyoming in the years two present any nor testify did not defendant tiary. conflicting is no evidence in defense. There questions: raises as appellant case. appeal On in this evidence Appellant evidence “I. Whether as a to This court does not sit of- to commit opportunity had an State, Bentley v. or innocence. alone, decide fense, is sufficient to standing 203; State, he proving of Harris satisfy Wyo.1972, the State’s burden did act. actually passing upon P.2d 800. Wyo.1971, 487 goods support of can be “II. Whether a bailee of the evidence to sufficiency has grand larceny he convicted of when view guilty, of we must jury verdict possession legally into and has not come favorable light in a most to evidence trespass.” taking by with the reasonable infer together that evi may be from ences that drawn We will affirm. circumstantial, or dence, whether direct or 1, 1979, Charles Martz June one On Wyo.1979, both. Tucker They hitchhiker. up appellant, a picked 470; Mirich friendly of the spent and rest became 590. shooting drinking target and day together, evening. late beverages until alcoholic in this case is the evidence While appellant to the mobile home Martz took circumstantial, qualities has of the same living with his sister. Martz was where The accorded sleep night persuasion direct appellant Martz invited The were left in the truck. between direct pickup. his law no distinction makes June morning, awakened the next Martz only and re and evidence a 1978 to discover that GMC convicting quires jury, before $4,000.00, gone. valued over was pickup, at defendant, of the defendant's be satisfied during the testified course of Martz doubt all guilt beyond a reasonable from conversations, appellant had advised their in the case. Circumstantial the evidence was Colorado. him that destination standing and has both stature. evidence Douglas County, investigator An for the State, Wyo.1975, 542 P.2d 857. Blakely testified Department Colorado Sheriff’s grand larce- The elements the crime 14,1979, responding to a that on June while prove are set out ny which State must burglary came into progress, call of 11.302, Wyoming Pattern Instruction No. which, upon pickup contact with GMC Instructions, Criminal, Jury followed belonging investigation, was identified given judge: the trial reported stolen. In the bed of Martz County 1. within the orange backpack. The crime occurred the truck was found an testified had an or- or the date June about Carbon backpack investigator him. The ange 1979. At the trial there inventoried contents. 2. took carried That defendant prescription introduced into evidence away, name, appellant’s bearing bottle of lotion steal, 3. With intent Wells, the backpack. from Russell taken another, goods 4. The pill was a bottle bear- backpack Also in upwards. ing the name Russell Wells. a value Of $100.00 ($100.00) upwards, guilty 0-7-301, grand lars Section W.S.1977: imprisoned peni- larceny, shall steals, feloniously “Whoever takes and car- years.” tentiary (10) not more than ten ries, away personal goods leads or drives another of the of one hundred dol- value (1) positive. Many proof more question There is no raised as to times of identi- was com- place venue or where the crime fication can be one of most difficult mitted, upon place, prosecution the date which it took hurdles the must overcome. Martz, (4)that belonged the truck that it argues though opportunity (the (5) valued in excess $100.00 only against was the him. That is evidence, verdict jury, from the found in its presence orange not so. The colored *3 $4,225.00), it that it a value of nor that had backpack in Martz’s truck clearly further was taken and moved to the State Colo- identified the appellant disappear- with the left about which only rado. The elements ance of the truck when found in Colorado. that appeal are raised in this are questions nothing identify There is to the individual (3) (2) by it was taken the defendant by the name Henry, of Charles arrested at very little really intent to steal. There is vicinity in the of the Colorado location satisfy left case —to for us to decide in this with the theft truck in Raw- ourselves that there was no error. speculate lins. We would have to that Henry Charles stole vehicle in Rawlins to- The facts of case when bonded it, in acquired some fashion thereafter as and reasonable gether justify logical proof of the innocence of the defendant. by jury appellant inference There in nothing the evidence to link pickup. was the thief who stole Martz’s Henry’s presence disappearance to the witness, While poor Martz was a his credi- the vehicle in Rawlins. It is a reasonable bility question resting jury. was a with the appellant carry inference that would State, supra. preroga- Tucker v. It was the baggage, including his medicines with him. tive of the to believe or disbelieve the Appellant’s statement to Martz that he was witness, right usurp and we have no to explains presence headed for Colorado fact-finding function entrusted to the jury. backpack of the truck in It Colorado. He left keys testified that while he in ap- is an ultimate reasonable inference that pickup, gave appellant permission away transport- pellant drove the truck to drive him away only gave permis- it but There is belongings ed his to that location. place sleep, sion to use the vehicle as a to in no basis the crime was speculate to appreci- that Martz’s not have sister would appel- than by any person other stranger ated into bringing the mobile lant. family. home with the of her He fur- rest appellant orange ther testified that had an no evidence to Although there is backpack. appellant himself was arrested suggest the pickup at or near the location where true, according It is to the evidence discovered, presence belong of his related, above the defendant did have pickup prove juxtaposition ings in opportunity to commit crime and the stolen vehi between the charged By and there is no doubt about it. The other fill cle. opportunity is meant that he was in the well gaps. strong A nexus is established. truck and the were While we there. posses need not be found in A defendant may persons trusting wonder about so property long may as he sion of stolen strangers, it is a common occurrence that closely related to its dis by found crime; persons careless are the victims of connecting some appearance by larceny. Opportu but that does not license State, Tex.Cr.App.1971, 461 Dominguez v. crime, nity to commit which when 417; 1968, 166 People, S.W.2d Colo. Scott facts, incriminating may linked with other 388; Hernandez, 432, State establish the the defendant. 1968, 200, P.2d Ariz.App. 7 437 Downs Wyo.1978, 616; part Jones v. on the Was there an intent opportu If Intent the cases there cited. to steal the vehicle? here, evi nity decisively may by can be established as be established prove the identification of the criminal is made Direct evidence to intent dence. possession. to control as be a transfer supra. Mirich v. necessary. not Leicht, 1973, N.J.Super. consent, did, give up posses State never 78; States, v. United D.C. A.2d Reed the vehicle. It remained sion of App.1968, 239 A.2d custody parked Any it. location where he had was for the appellant may have 6-7-303, supra, is make The to effect using place it as a to purpose limited equiva- by a bailee the unlawful conversion But remained in Martz’s sleep. the vehicle larceny difference lent to the crime of —the moved, possession. there When was being prove unlawful conversion wrong “carrying away.” The taking and trespas- prove a bailee the State need with no property taking ful of another’s no interest taking. sory it, returning apparent intention except permission the stolen vehicle — circum any explanatory the absence of not rise an ex- sleep in it. This does stances, an deprive intent evidences be- implied relationship trust pressed or *4 property. State permanently of his owner requirement parties which is a tween those Jackson, 399, 270, 1966, 101 P.2d v. Ariz. 420 in the a bailment the context of to establish may have intended to Although by bailee. of unlawful conversion offense custody, a he no in part with limited 1051, State, 600 Epperson v. More part possession. tent to with title or prop- hold that the was 1052. We over, larceny it is in that the own essential erly charged with and convicted of er, consenting possession, when to a have no grand larceny. crime of State, part with v. intent title. Neel Affirmed. rehearing, Wyo.1969, on denial taking 241. There was no consent ROSE, Justice, dissenting. given was though permission even defend sufficiency-of-the-ev- a presents The case also, sleep Otte v. ant to in the truck. See are question. The essential facts idence Wyo.1977, 563 P.2d hitchhiking was to Col- appellant-Wells that surrounding All the. by com- picked up when he was orado taking Martz’s and its recov vehicle witness, a day Mertz. After plaining justify the reasonable inference that ery socializing drinking, and Mertz authorized defendant was the thief. truck, night while spend Wells to in by. Mertz to his trailer close charged grand was Mertz retired vehicle, 6-7-301, give in did not He left the but larceny, W.S.1977. asserts § The next that, to drive it. anything, permission if he the crime Wells bailee, gone was Mertz 6-7-303, morning the truck by unlawful conversion thereafter assertion, Shortly it stolen. support appel reported To this W.S.1977.2 police, who by Colorado given “possession” lant he truck was located states that was a proximity to property found the in close by complaining of the stolen vehicle apprehended generous reading suspect police whom the witness. Such cannot When lo- charged trespass. with criminal given to the facts of this case. The be cated, backpack and gave appellant the truck contained complaining permis witness bearing Wells’ name. nothing prescription medicine sleep sion to more. vehicle — course, assumed, of that these giving permis of such It must be To contend that when Wells placed items were in truck “complete possession” sion is surrender by Mertz. credibility. picked up highway on the is fatuous and defies The mere proper- after location of the giving temporary custody for a time limited Some Colorado, in in Utah. ty of dominion or Wells arrested purpose surrender larceny, 6-7-303, guilty the same shall be deemed 2. Section W.S.1977: original taking if had been manner as felonious, otherwise, any by finding “If bailee or thereof, conviction shall on note, any money, goods bank bill or or or punished accordingly.” chattels, shall convert the same to his her same, own use. with intent to steal the

205 rebutting him the burden of impose on likely be said to be Even if it could State, Wyo., have some accusation. I still Sanchez Wells stole State’s think, 270, (1977). doubts and, reasonable 276 nagging there is sufficient about whether conviction, reviewing duty our verdict and in the record to sustain jury, whether a from the evi inquire me, For there entered thereon. judgment (and not from Wells’ fail presented dence respect possibilities plausible are other charge), could have found ure to rebut arrived in Colorado. to how the truck guilty beyond a reasonable leav- away, have walked may simply Wells State, Wyo., 601 P.2d 166 doubt. Chavez in the truck —he ing items 300, (1979); Wyo. 10 Gustavenson drinking spree been Mertz had 1006, (1902); Hayes 68 P. 1011 could have been stolen night! The truck (1979); Wyo., 599 P.2d 558 and Pilon v. and ar- persons apprehended either Bordenkircher, Warden, 444 100 U.S. all, others. After rested Colorado (1979). S.Ct. 62 L.Ed.2d was found the record shows the truck the rea- This had occasion to define court possession apparent while in the Colorado early history. in its sonable-doubt standard were, charges according to persons who Territory, Wyo. Palmerston v. them, trespass, criminal against committing with a (1890), we took issue Wells P. established that and it was never part which stated in night instruction1 after proceeded Colorado “ sleep in the vehicle. Mertz allowed him to proof ‘. . . The is to be deemed *5 is sufficient sufficient when the evidence really hap- asking myself In what I think ordinarily impress judgment thought myself indulging I find pened, on which prudent men with a conviction that, not take the stand to since Wells did affair of important act in an they would charge any exculpatory or offer rebut ” their own.’ . . . if his I am moved to wonder explanation, testify anything to do failure to highest out that men of pointed We this pursuing of the case. the outcome forced to choose be- are often prudence Wells admitted at his fantasy, I recall that only preponderance a tween alternatives on prior crime. sentencing to at least one defined the We then of the evidence. attorney advised him Could it be that his standard proof-beyond-a-reasonable-doubt exposing as to avoid testify not to so as: conviction(s)? jury prior to evidence of his so con- . must be “. . ‘[T]he sentencing I from the Additionally, note * * * vinced the evidence drifter, which hearing that Wells is would prudent man guilt defendant’s unlikely it that he would be able to make that convic- upon feel safe to act would if innocent. produce a credible alibi even highest concern and tion in matters of speculation is of little moment But dearest his own importance to that, in this case where there has except where interests, under no real circumstantial- been established resting upon compulsion there was ac- connection between the hard-evidence ” 23 P. . . Id. at him to act at all.’ . deed, and the evil tivities of the defendant de- games having to do with my guessing has Court Supreme The United States just innocence seem to me to be fendant’s standard the reasonable-doubt defined which the games guessing as valid as “ fact the trier of ‘impresses which one uphold majority indulge in order subjective state reaching necessity all, After had the burden guilt. State ” issue,’ re facts in certitude of the a reasonable proving guilty beyond Wells 358, 364, 90 S.Ct. doubt, achieving goal may Winship, 397 U.S. and in giving reversible error. Cosco longer approve in- considered of an 1. We no (1974). doubt, Wyo., defining struction reasonable likely giving is of such an instruction Thus, (1970). both L.Ed.2d 368 define reason- Winship and Palmerston feeling requiring standard

able-doubt guilt con-

of certitude the defendant’s —a probably clusion is not likely guilty, sufficient

guilty, or Moreover, in State

for a lawful conviction. Rideout, 454-455 Wyo.,

(1969), we said: a mere creating “. . . [EJvidence sufficient; is not

probability guilt gives rise

much less is which guilt. suspicion conjecture of

mere ” non-clairvoyant

I do not believe that

trier-of-fact, case, of this given the facts possessed necessary “state

could have having upon relied

of certitude” without inferences, among impermissible

various

which is the one that assumes Wells’ the charge. to rebut

because failed have reversed directions to would the charge.

dismiss

Roy L. MERRITT Francis G.

Merritt, (Defendants), Appellants

McINTYRE AND McINTYRE GARDEN

CENTER AND GREENHOUSE COM-

PANY, (Plaintiff). Appellee

No. 5263.

Supreme Wyoming. Court 8, 1980.

July Nonetheless, Rideout, discussing believe we were circumstantial cumstantial applies Blakely from still ei- evidence. Wyo., later case the statement Rideout (1975), light expressly we ther direct or standard, supra. overruled earlier case law on cir- the reasonable-doubt some of our