Ekholm v. State, 03-130.

• Citation: 2004 WY 159,102 P.3d 201
• Decision Date: 09 December 2004
• Docket Number: No. 03-130.,03-130.
• Parties: Lawrence EKHOLM, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

102 P.3d 201

2004 WY 159

Lawrence EKHOLM, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 03-130.

Supreme Court of Wyoming.

December 9, 2004.

Representing Appellant: Kenneth M. Koski, Public Defender; Donna D. Domonkos, Appellate Counsel; and Ryan R. Roden, Senior Assistant Appellate Counsel.

Representing Appellee: Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Dee Morgan, Assistant Attorney General.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

VOIGT, Justice.

[¶ 1] The appellant, Lawrence Ekholm, appeals his felony conviction for conspiracy to possess methamphetamine, with the intent to deliver. On appeal, Mr. Ekholm claims that the evidence admitted at trial was insufficient to sustain that conviction. We find that the evidence was sufficient, and affirm.

ISSUE

[¶ 2] The sole issue presented by this appeal is whether the record contains sufficient evidence to sustain the appellant's conviction for conspiracy to possess methamphetamine, with the intent to deliver.

FACTS

[¶ 3] Maria Hair (Hair) met the appellant through Krista Johnson (Johnson) about a year prior to the appellant's trial in the instant case. Johnson was living in the appellant's residence at the time and Hair began selling methamphetamine to the appellant through Johnson. As Hair had more frequent contact with the appellant, and once he "got high in front of" her, she started to "trust" the appellant. Hair proceeded to supply the appellant methamphetamine on "many occasions" at her residence, as well as the appellant's residence. She also traded "commercial" methamphetamine to the appellant "even Steven" for "glass" methamphetamine that the appellant obtained from other sources.¹ According to Johnson, the appellant "only" used "ice" methamphetamine and "never" used "commercial" methamphetamine, and Hair similarly stated that she "only did the glass." Hair indicated that commercial methamphetamine was "the stuff that we would sell to the general population...."

[¶ 4] Hair had a "clique" or "little organization of certain people that dealt together." According to Hair, the appellant ultimately became one of the ten or so members of that clique; the appellant was Hair's "right-hand man" and "like part of the family."² Hair frequently sought the appellant's advice and knowledge when she was "having problems," and the appellant "always knew what was going on. He always knew." At times, she would, with the appellant's express permission, meet her "source" or "dope man" at the appellant's residence to "take care of ... business" because Hair "felt safe" at the appellant's residence. The appellant was present on these occasions, and other occasions in which Hair dealt methamphetamine at her own residence. Hair also gave the appellant "free" methamphetamine several times in order to borrow his Jeep to go "do a run" and obtain "pounds" of methamphetamine. She "always asked [the appellant] permission...."

[¶ 5] In the months prior to January 2002, law enforcement officers learned that Hair was "running methamphetamine" for Joe Cromwell in the Cheyenne area; Hair obtained the methamphetamine in Fort Collins, Colorado, and then distributed it in Cheyenne.³ On January 4, 2002, a confidential informant (informant), who had previously purchased methamphetamine from Hair, advised Cheyenne police officer Brian Smith that Hair was "trying to get money together" to obtain methamphetamine in Fort Collins. The informant had seen Hair with $4,000.00 on her bed and Hair asked to use the informant's vehicle (which she had done previously) because she "needed to go on the 7th." On January 7, 2002, the informant told Officer Smith that "he thought that [Hair] had made the trip." Indeed, Hair testified that she had returned to Cheyenne with "about [a] half a pound of dope."

[¶ 6] Officer Smith outfitted the informant with a "wire" and the informant went to Hair's residence to attempt to purchase methamphetamine. The informant was unable to purchase methamphetamine from Hair, apparently because he used a pre-arranged signal to indicate that he "was wearing a wire." Hair began "freaking out," thinking that she was "fixing to get raided," and had those present at the residence gather up her scales, paraphernalia, hypodermic needles, and the "half pound" of "commercial" methamphetamine. These items were placed in a bag and Hair wanted the bag placed in the informant's vehicle. Hair knew that she was wanted by the police⁴ and suspected that she was the target of whatever investigation had produced the wire. She needed someone other than herself to transport the bag to the informant's car, and wanted Johnson to do so. Johnson, who was aware that the bag contained approximately a "half pound" of methamphetamine, was too scared to transport the bag and had another individual place the bag near the back seat on the driver's side of the informant's vehicle.

[¶ 7] Officer Smith decided to place a tracking device on the informant's vehicle, which vehicle remained parked at Hair's residence. In order to install the tracking device, the informant retrieved the vehicle from Hair's residence and took it to a designated location. The informant granted law enforcement permission to search the vehicle, and the officers discovered a brown bag on the floorboard behind the driver's seat. The bag contained several scales (two electronic scales and other handheld scales), a ledger book and notes, a small black leather case containing over five ounces of methamphetamine (some of which methamphetamine was packaged in small plastic bags), and paraphernalia associated with the use of methamphetamine. The officers removed those items from the bag, replaced them with deicer to make "it look like something was still" in the bag, and placed the bag in the informant's vehicle. The informant's vehicle was returned to Hair's residence and placed under surveillance.

[¶ 8] In the meantime, Johnson had called the appellant to pick her up at Hair's residence because Johnson was "freaking out." Johnson and the appellant left in the appellant's vehicle and Johnson told the appellant about the informant's conduct at Hair's residence, Hair's reaction to that conduct, and that another individual had placed a bag containing all the "drugs" and "paraphernalia" in the informant's vehicle. According to Johnson, the appellant drove to a location and pointed out where the Division of Criminal Investigation parked its cars and then went to the appellant's residence. Shortly thereafter, Hair and some other individuals arrived.

[¶ 9] At the appellant's residence, Hair was "freaking out" and stressed. She told the appellant (he was the "first person [Hair] went and talked to") what the informant had done, and the appellant was "pissed off...." According to Johnson, the appellant said not to worry about anything, "DCI wouldn't go to his house." Hair asked to borrow the appellant's Jeep in order to "pick up my bag ... that [contained] the methamphetamine" and "paraphernalia."⁵ Hair and Johnson were going to retrieve the bag, but the appellant said "no," he did not want Hair and Johnson going alone, and that he would take them. Hair felt "safer" with the appellant because he is "pretty powerful and believable about keeping you safe and things."

[¶ 10] In order to avoid police detection and increase her chances of success, Hair needed someone other than herself to retrieve the bag from the informant's vehicle. Johnson was reluctant to "get the stuff inside the bag" and at one point, the appellant began yelling at her, saying "you [Johnson] are going to get in the car [to retrieve the bag]." Johnson testified that the appellant also pointed a rifle at her, telling her that if she didn't "get out [of the vehicle] when we go over there, drive by and get the drugs then this is what is going to happen to" Johnson. Johnson replied that she would retrieve the bag.

[¶ 11] Prior to leaving the residence, the appellant told those present to empty their pockets so that all "dope and paraphernalia" remained behind. Johnson testified that the "[appellant] knew what we were going to do" and "[e]verybody knew what was going on." They had a "plan," according to Johnson, before leaving the appellant's residence for Johnson to get the "half pound" from the informant's vehicle. In a later interview with Wyoming Division of Criminal Investigation Special Agent Randal Hoff, the appellant admitted that he knew Hair and Johnson were involved in drug sales and "were involved in some type of drug deal" when the three of them drove to Hair's residence.

[¶ 12] The appellant, Hair, Johnson, and another individual left the appellant's residence in the appellant's vehicle. They drove around the neighborhood near Hair's residence to ensure there were no "cops around...." The appellant was driving, Hair was in the vehicle's front passenger seat, and Johnson and the other individual were in the rear. While in the vehicle, according to Johnson, they discussed getting that "half pound" out of the informant's vehicle because Hair had paid "a lot of money for it" and "had to get it." Hair said that they again discussed Johnson getting out of the appellant's vehicle and retrieving "the bag with meth in it." While driving in the area, Hair said that she even saw the informant in a vehicle, as well as a known police officer. Hair was not deterred because "there was a reason we were there, and we were trying to accomplish that."

[¶ 13] The appellant then drove by Hair's residence to determine whether she had been "raided...." Hair testified that the appellant discussed stopping so that Johnson "can jump out and get" the bag. Johnson was scared of being arrested and declined to retrieve the bag. According to Johnson, the appellant yelled at her to "get the F-ing bag. You can do it. Just do it," and Johnson was...