Borja v. State

• Decision Date: 03 February 2023
• Docket Number: S-22-0107
• Citation: 2023 WY 12
• Parties: DANIEL E. BORJA, SR., Appellant (Defendant), v. THE STATE OF WYOMING, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

2023 WY 12

DANIEL E. BORJA, SR., Appellant (Defendant), v. THE STATE OF WYOMING, Appellee (Plaintiff).

No. S-22-0107

Supreme Court of Wyoming

February 3, 2023

Appeal from the District Court of Niobrara County The Honorable F Scott Peasley, Judge

Representing Appellant: Office of the State Public Defender Diane Lozano, Wyoming State Public Defender; Kirk A. Morgan Chief Appellate Counsel; Joanne S. Zook, Steiner, Fournier and Zook, LLC, Cheyenne, Wyoming. Argument by Ms. Zook.

Representing Appellee: Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Kristen R. Jones, Senior Assistant Attorney General; Donovan Burton, Assistant Attorney General. Argument by Mr. Burton.

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

FOX Chief Justice.

[¶1] Daniel E. Borja, Sr., was convicted of taking a controlled substance into a jail, a felony, and possession of a controlled substance, a misdemeanor. He challenges the sufficiency of the evidence to support his conviction. He also asserts for the first time on appeal that his right against self-incrimination was violated. We affirm but remand for the limited purpose of correcting the written judgment and sentence.^[1]

ISSUES

[¶2] The issues on appeal are:

1. Was the evidence sufficient to support Mr. Borja's conviction on the felony charge of taking a controlled substance into a jail?

2. Was the evidence sufficient to support Mr. Borja's conviction on the misdemeanor charge of possession?

3. Does requiring an arrestee to disclose his possession of a controlled substance or face a felony charge for taking the substance into a jail violate the arrestee's right against self-incrimination?

FACTS

[¶3] On April 12, 2021, Officer Jeremiah Fink of the Lusk Police Department arrested Mr. Borja outside his home on an outstanding warrant unrelated to the offenses at issue in this appeal. Officer Fink asked Mr. Borja to put his hands behind his back and placed him in handcuffs. Before placing him in the patrol car, Officer Fink asked him "if he had anything on him," and Mr. Borja responded that he had his keys and wallet. Officer Fink then transported Mr. Borja to the Niobrara County Detention Center. As they entered the facility, Officer Fink told the detention officer, Deputy Rosie Mazac, that Mr. Borja had said he only had keys and a wallet on him, and Mr. Borja again stated that he had nothing but his keys and wallet.

[¶4] Once inside, Deputy Rosie Mazac searched Mr. Borja while Officer Fink stood by. A few minutes into the search, after Deputy Mazac had repeatedly asked Mr. Borja to remain still, she removed a small Ziploc bag containing a crystalline substance from the front upper pocket of his coat. Deputy Mazac asked Mr. Borja what was in the bag, and he said it was "nothing," then "fiberglass," and winked at Officer Fink. Deputy Mazac then said, "Okay, anything you bring into the jail," and Mr. Borja interrupted and said, "I know, I know, I will be charged for that. I know that."

[¶5] An initial test of the crystalline substance returned a presumptive positive result for methamphetamine. Officer Fink then sent it to the Wyoming Crime Lab, which confirmed the substance was methamphetamine.

[¶6] The State charged Mr. Borja with one felony count of taking a controlled substance into a jail and one misdemeanor count of possession of a controlled substance in an amount less than three grams. At trial, the State presented Officer Fink's video of Mr. Borja's arrest and search, and the testimony of Officer Fink, Deputy Mazac, and the Wyoming Crime Lab technician that tested the crystalline substance. After the State rested, Mr. Borja moved for a directed verdict on the misdemeanor possession count, and the district court took the motion under advisement. Mr. Borja did not present evidence, and the jury returned a verdict of guilty on both counts. Mr. Borja did not renew his motion for a directed verdict on the misdemeanor count, and the court did not rule on his earlier motion.

[¶7] The district court entered judgment and sentenced Mr. Borja to a prison term of two to three years on the felony count, suspended in favor of three years of supervised probation. It sentenced him to a term of one year on the misdemeanor count, with credit for time served. Mr. Borja timely appealed to this Court.

STANDARD OF REVIEW

[¶8] Mr. Borja argues the evidence was insufficient to support his conviction on either the felony or misdemeanor count against him. In considering the sufficiency of the evidence, we "need not determine whether the evidence established the defendant's guilt beyond a reasonable doubt." Mitchell v. State, 2020 WY 142, ¶ 33, 476 P.3d 224, 237 (Wyo. 2020) (citing Pyles v. State, 2020 WY 13, ¶ 6, 456 P.3d 926, 929 (Wyo. 2020)). Our review is instead as follows:

We must determine whether the evidence could reasonably support the jury's verdict. We do not reweigh the evidence or reexamine the credibility of witnesses, but examine the evidence in the light most favorable to the State. We accept the State's evidence as true, giving it every favorable inference which can reasonably and fairly be drawn from it. We disregard any evidence favorable to the appellant that conflicts with the State's evidence.

Mackley v. State, 2021 WY 33, ¶ 24, 481 P.3d 639, 645 (Wyo. 2021) (cleaned up).

[¶9] Mr. Borja also presents a constitutional claim. "Issues of constitutionality present questions of law, which we review de novo." WyoLaw, LLC v. Off. of Att'y Gen., Consumer Prot. Unit, 2021 WY 61, ¶ 33, 486 P.3d 964, 974 (Wyo. 2021) (quoting Sam v. State, 2017 WY 98, ¶ 76, 401 P.3d 834, 859 (Wyo. 2017)).

DISCUSSION

I. The evidence was sufficient for the jury to convict Mr. Borja of voluntarily taking a controlled substance into a jail.

[¶10] Wyo. Stat. Ann. § 6-5-208 (LexisNexis 2021) provides that "a person commits a felony . . . if that person takes or passes any controlled substance or intoxicating liquor into a jail[.]" In Barrera v. State, we observed that the statute describes a general intent crime that must be committed voluntarily. 2017 WY 123, ¶ 12, 403 P.3d 1025, 1028 (Wyo. 2017). Nonetheless, we held that an arrestee can commit the crime even though his presence in the jail is involuntary. Id. at ¶ 17, 403 P.3d at 1029. We reasoned:

The clear and unambiguous wording of our statute authorizes the punishment of "a person" who "takes or passes any controlled substance into a jail." Taking and passing share the common function of introducing or causing the introduction of a prohibited substance into a jail, and are voluntary so long as they are the product of choice. This is the substance or gravamen of the crime . . . and it exists wholly independent of whether one chooses to be in a jail.

Id.; see also Farnsworth v. State, 2017 WY 137, ¶ 8, 405 P.3d 1067, 1070 (Wyo. 2017) (applying same holding).

[¶11] Mr. Borja acknowledges our holdings in Barrera and Farnsworth, but contends his situation is distinguishable because in those cases, the defendants were advised that taking a controlled substance into the jail was a felony. He argues that there was no evidence his actions were voluntary because he was not advised he could be charged. We disagree.

[¶12] The State was not required to prove that Mr. Borja knew his action was a crime or that he intended to commit a crime. See Wyant v. State, 2020 WY 15, ¶ 8, 458 P.3d 13, 16 (Wyo. 2020) (defining a general intent crime as one that "consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence") (quoting Kite v. State, 2018 WY 94, ¶ 23, 424 P.3d 255, 263 (Wyo. 2018)); see also People v. Low, 232 P.3d 635, 645 (Cal. 2010) (knowingly bringing a substance into a jail "does not require any knowledge of the unlawfulness of such act or omission") (quoting Cal. Penal Code § 7 (West 2017)); 1 Wayne R. LaFave, Substantive Criminal Law § 5.6 (3d ed. 2017) (noting that a defendant's belief his conduct was not unlawful is not a defense). It was instead required to show that Mr. Borja's taking methamphetamine into the jail was a product of his choice. Farnsworth, 2017 WY 137, ¶ 8, 405 P.3d at 1070; Barrera, 2017 WY 123, ¶ 17, 403 P.3d at 1029.

[¶13] Mr. Borja is correct that in both our prior decisions, the defendants were specifically advised that proceeding into the jail with controlled substances would expose them to felony charges. Farnsworth, 2017 WY 137, ¶ 3, 405 P.3d at 1068-69; Barrera, 2017 WY 123, ¶¶ 5-6, 403 P.3d at 1027. In those cases, the defendants' taking of controlled substances into the jails after receiving such advisements was evidence of a choice. See also State v. Gneiting, 468 P.3d 263, 270 (Idaho 2020); Herron v. Commonwealth, 688 S.E.2d 901, 906 (Va. Ct. App. 2010); State v. Cargile, 916 N.E.2d 775, 776-77 (Ohio 2009); State v. Alvarado, 200 P.3d 1037, 1042 (Ariz.Ct.App. 2008). We did not, however, hold that a specific advisement was required before a finding of voluntariness could be made. Again, our focus was on whether the taking of the controlled substance into the jail was the product of a choice. Farnsworth, 2017 WY 137, ¶ 8, 405 P.3d at 1070; Barrera, 2017 WY 123, ¶ 17, 403 P.3d at 1029.

[¶14] While there was no specific advisement in this case, there was other evidence that, when considered in the light most favorable to the state, shows Mr. Borja made a choice to take methamphetamine into the jail. Before placing Mr. Borja in his patrol car, Officer Fink asked him if he had anything on him. Mr. Borja's counsel maintained during oral argument that question was broad enough to encompass whether he had drugs on him. Also, when Officer Fink arrived at the jail with Mr. Borja, he told Deputy Mazac that...