Estrada-Sanchez v. State

• Decision Date: 09 April 2003
• Docket Number: No. 01-154.,01-154.
• Citation: 2003 WY 45,66 P.3d 703
• Parties: Jorge ESTRADA-SANCHEZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Defendant).
• Court: Wyoming Supreme Court

66 P.3d 703

2003 WY 45

Jorge ESTRADA-SANCHEZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Defendant).

No. 01-154.

Supreme Court of Wyoming.

April 9, 2003.

Thomas B. Jubin of Jubin & Zerga LLC, Cheyenne, Wyoming, Representing Appellant.

Hoke MacMillan, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; T. Alan Elrod, Assistant Attorney General; Theodore E. Lauer, Director, and Carrie Dawn Tate-Meyer, Student Intern, and Meri Ramsey, Student Intern, of the Prosecution Assistance Program, Representing Appellee. Argument by Ms. Ramsey.

Before HILL, C.J., and GOLDEN, LEHMAN¹, KITE, and VOIGT, JJ.

GOLDEN, Justice.

[¶ 1] Jorge Estrada-Sanchez appeals his convictions on two counts of conspiracy with intent to deliver methamphetamine.² He challenges subject matter jurisdiction and the sufficiency of the evidence that permitted his conduct in California to form the basis of a Wyoming prosecution; he contends that the Information improperly varied from the evidence at trial; and he complains of prosecutorial misconduct and trial errors.

[¶ 2] We reject the State's assertion that a detailed affidavit cured a constitutionally defective Information, or that the failure to obtain a bill of particulars waived it. We reverse and remand for a new trial.

ISSUES

[¶ 3] The parties agree that the issues are:

1. Was the evidence insufficient to support the convictions because there was no evidence of the Defendant's specific intent agreement that the controlled substances be further distributed by anyone in Park County, Wyoming?

2. Did the Court permit an improper variance from the Information filed, because the Defendant was charged with conspiring in Park County, but the Court instructed the jury that it could convict the defendant for conspiring elsewhere with intent to have an effect in Park County, Wyoming?

3. Did the prosecutor's misconduct of seeking and obtaining an instruction to the jury that a witness had refused to testify for the state and was held in contempt therefore require reversal?

4. Did the prosecutor's misconduct of falsely stating to the jury that there were no deals, when, in fact, the Court had ordered immunity for 14 witnesses—every non-law enforcement witness in the case, require reversal?

5. Were the Defendant's constitutional due process and confrontation rights were [sic] violated because the Court failed to swear the interpreter?

FACTS

[¶ 4] Between March 1997 and February 1998, two women, Chandel Smith and Lisa Lee, both of whom were romantically involved with Sanchez, made seven trips to California to see him. On two of those trips, the women returned to Wyoming with methamphetamine supplied to them by Sanchez, and they were later arrested for that possession. Those two trips formed the basis of two counts of conspiracy charged against Sanchez for which he was tried before a Park County, Wyoming, jury. Another five trips were admitted into evidence as W.R.E. 404(b) evidence to show a course of conduct. The first two trips occurred in March 1997 and June 1997. On the third trip, in September 1997, Chandel Smith was arrested with two pounds of methamphetamine, outside of Meeteetse, Wyoming, and this trip formed the basis for the first charge against Sanchez. The fourth, fifth and sixth trips involved Lisa Lee and occurred between November of 1997 and January of 1998. On her seventh trip in February 1998, which formed the basis of Count II, Lee testified that Sanchez sold her one pound of methamphetamine for $8,000.00, and gave her two weeks to pay him for the drug. She used about a half-pound, and weighed out some quantity to sell in Cody, but got arrested. The half-pound was retrieved by friends, sold in Montana, and money sent back to Sanchez in California.

[¶ 5] Sanchez was tried by jury, testified on his own behalf, but was convicted and sentenced to eight to ten years in the Wyoming state penitentiary. On appeal, Sanchez contends that insufficient evidence exists to show that he conspired to distribute drugs in Wyoming; a fatal variance exists between the Information and the evidence adduced at trial; and prosecutorial misconduct occurred, all errors that require reversal.

DISCUSSION

Insufficient Evidence

[¶ 6] In his first issue, Sanchez contends that when the evidence is insufficient to prove that Sanchez intended for any purchasers to possess and deliver methamphetamine in Wyoming, then Wyoming does not have subject matter jurisdiction over a crime committed in California. 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. Black v. State, 2002 WY 72, ¶ 4, 46 P.3d 298, ¶ 4 (Wyo.2002); 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).

[¶ 7] The trial courts of Wyoming have subject matter jurisdiction over drug conspiracies when the conspirators intend for the conspiracy to have an effect within the State of Wyoming. Marquez v. State, 12 P.3d 711, 715 (Wyo.2000). While in New Mexico, Marquez agreed with a person there to deliver drugs to someone in Wyoming in exchange for cash. Marquez was arrested in Colorado before reaching Wyoming. In this case, Sanchez sold drugs to a purchaser in California, and that purchaser then drove the drugs back to Wyoming and sold them. Sanchez first contends that the Information does not charge him with extraterritorial conduct that caused a result in Wyoming and, therefore, Wyoming lacks subject matter jurisdiction. At trial, however, the jury was instructed to convict if the State proved beyond a reasonable doubt that Sanchez had entered into a conspiracy specifically intended to have an effect in Park County, Wyoming. He contends, however, that this evidence demonstrated only that a sale occurred in California, and, without evidence of any specific intent to sell in Park County, insufficient evidence exists to support a conviction under the jury instructions.

[¶ 8] "When determining whether sufficient evidence exists to support a verdict, it is not our function to assess the facts or reweigh the evidence. We must assume that the jurors believed only the evidence adverse to the defendant." Walston v. State, 954 P.2d 987, 988 (Wyo.1998). Sanchez correctly states that a sale of drugs to a purchaser without any agreement that the purchaser will further distribute them to others is not a conspiracy, and, therefore, in this case, the jury had to first decide whether Sanchez and a purchaser conspired to possess drugs with the intent to distribute them, and then had to decide whether the conspiracy was intended for the possession and distribution of drugs in Park County, Wyoming. The evidence must have demonstrated that any conspiracy was not intended to occur in California. As Sanchez points out, the record shows that several attempts by the State failed to elicit direct statements from co-conspirators that Sanchez knew the drugs would be resold in Park County, Wyoming, on the trips that formed the basis of the two charges; however, these same witnesses testified to conduct by Sanchez that supports the jury's verdict. Witnesses testified that, on several occasions, Sanchez sold drugs to them in California, hid the drugs somewhere on their vehicle, and then followed them to Wyoming and removed the drugs for them. The witnesses were provided these drugs on condition that they would pay him from proceeds earned from selling them, and later the witnesses traveled back to California with thousands of dollars paid to Sanchez. Sufficient evidence supports the jury's verdict based on the instructions to the jury that required a guilty verdict if the evidence showed a conspiracy that intended the drugs would be distributed in Park County, Wyoming.

Information

[¶ 9] The Information filed in this case states:

Comes Now the State of Wyoming ... and informs the Court and gives the Court to understand that the above-named Defendant:

Count I: On or between August 1, 1997 and September 9, 1997, in Park County, Wyoming, did conspire to commit any offense within the State of Wyoming or conspired to commit an act beyond the State of Wyoming, namely: did deliver, or possess with intent to manufacture or deliver, a controlled substance ... in violation of Wyoming Statute § 35-7-1031(a)(ii)(Michie 1997), all in violation of Wyoming Statute § 35-7-1042 (Michie 1997)....

Count II is identical, except that the dates alleged are "[o]n or between January 1, 1998 and February 13, 1998."

[¶ 10] Sanchez contends that the Information is unequivocal: it alleges that the conspiratorial agreement occurred in Park County or Sanchez conspired to commit an act beyond the State of Wyoming; however, as the jury instructions discussed above indicate, the jury determined his guilt on another charge, and this guilty verdict is the product of a fatal variance between the crime charged and that proved, and thus must be reversed.

[¶ 11] "An indictment to be legally sufficient must fairly indicate...