Garcia v. State, 88-205

Decision Date13 July 1989
Docket NumberNo. 88-205,88-205
Citation777 P.2d 1091
PartiesGlenn Eddie GARCIA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Leonard Munker, State Public Defender, Gerald M. Gallivan, Director, Defender Aid Program, and Brian J. Godard, Student Intern, for appellant. Argument presented by Brian J. Godard.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Karen A. Byrne, Sr. Asst. Atty. Gen., and Paul S. Rehurek, Asst. Atty. Gen., for appellee. Argument presented by Paul S. Rehurek.

Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

CARDINE, Chief Justice.

Glenn Eddie Garcia was convicted of one count of concealing stolen property in violation of W.S. 6-3-403(a)(i), one count of aggravated assault in violation of W.S. 6-2-502(a)(ii), and two counts of interference with a police officer in violation of W.S. 6-5-204(a). On appeal, he contends that he was improperly charged with concealing stolen property, that the trial court erroneously admitted evidence of his prior bad acts, and that the trial court erroneously denied his motion for acquittal.

We affirm.

Shortly before 2:30 p.m. on November 1, 1987, a dark blue 1984 Toyota Celica was stolen in Laramie, Wyoming. At approximately 10:20 p.m. that evening, Officer Bomar of the Cheyenne Police Department saw a vehicle matching the description of the stolen vehicle and, with Officer Nicholl providing backup in a separate patrol car, stopped the suspect vehicle. As the officers approached the Toyota, the driver, later identified as appellant Garcia, sped off into south Cheyenne, beginning a high speed chase that was to end nearly forty minutes later near Wellington, Colorado.

Early in the chase Officer Nicholl temporarily fell prey to appellant's evasive actions and, attempting to rejoin the pursuit, turned north onto Van Lennen Avenue with lights and sirens blaring. He quickly realized that appellant had turned off the Toyota's headlights and was headed down the wrong side of the street on a high speed collision course with his patrol vehicle. When appellant failed to move into the proper lane, Nicholl was forced to swerve off the left edge of the street to avoid the imminent collision. Shortly after this incident, Officer Bomar and the Toyota collided as the officer attempted to block appellant's escape.

As more officers became involved in the effort to contain Garcia, it became increasingly evident that he would not voluntarily abandon his flight. When Sergeant Renner attempted to intercept appellant on House Avenue, appellant entered Renner's lane and forced him into the curb. Shortly thereafter appellant proceeded into a non-incorporated portion of Laramie County and headed for I-25. As speeds increased, Officer Stone attempted to pass appellant and block his progress. Appellant looked at the officer, swerved the Toyota towards the patrol vehicle and forced Stone into a ditch. Pursuit continued through the county and south along I-25, until a member of the Colorado State Patrol finally succeeded in forcing appellant off the highway.

Appellant was arrested and brought to trial on the following charges:

COUNT 1, aggravated assault against Officer Nicholl;

COUNT 2, aggravated assault against Officer Stone;

COUNT 3, aggravated assault against Sergeant Renner;

COUNT 4, concealing stolen property of a value greater than $500.

The jury found him guilty of Counts 1 and 4 but, as to Counts 2 and 3, found him guilty only of the lesser included offense of interfering with a police officer. The trial court imposed and suspended two one-year sentences relating to Counts 2 and 3 and on

the remaining charges sentenced him to concurrent terms of four and one-half to six years in the Wyoming State Penitentiary.

CONCEALING STOLEN PROPERTY

Prior to trial, appellant submitted a "Motion to Dismiss or for Judgment of Acquittal on Count IV." In support of that motion, he admitted that he stole the Toyota and argued that a thief could not be prosecuted for the possessory offenses of receiving or concealing stolen goods. He reiterated this position as part of a motion to acquit following the State's presentation of evidence and raises it once again on appeal. We find no merit in his argument.

Appellant cites much authority for the proposition that a defendant cannot be prosecuted, convicted, and sentenced both for the larceny of property and the receipt or concealment of that same property. He correctly notes that such a situation potentially offends both state and federal constitutional proscriptions against double jeopardy, in that the possessory offenses are necessarily committed when one steals property. A defendant cannot receive multiple punishments for a single offense. See generally Howard v. State, 762 P.2d 28 (Wyo.1988); Schultz v. State, 751 P.2d 367 (Wyo.1988); Birr v. State, 744 P.2d 1117 (Wyo.1987); Tuggle v. State, 733 P.2d 610 (Wyo.1987). However, appellant's argument, and the authorities cited, are inapposite here. Appellant was merely charged with concealing stolen property. No attempt was made to try or punish him for the theft of the Toyota.

He attempts to shore up this obvious weakness in his argument by contending that the possessory offenses of receiving and concealing were intended by the legislature to reach only a thief's accessories after the fact. He cites no cogent authority in support of this position, however, and ignores past decisions of this court suggesting a contrary conclusion. Where evidence strongly indicated the defendant's involvement in the underlying theft, we upheld his conviction for receiving and concealing stolen oil field drill bits based on his unexplained possession of those bits. Tageant v. State, 673 P.2d 651 (Wyo.1983); see also Capshaw v. State, 737 P.2d 740 (Wyo.1987). Furthermore, we expressly rejected the argument that an admitted thief could not be charged and convicted of concealing the stolen property in Pote v. State, 695 P.2d 617, 622 (Wyo.1985). If we were to adopt appellant's argument, the State would be required to offer evidence that someone other than the possessor of stolen goods committed the actual theft. This court has repeatedly rejected such a requirement. See generally State v. Callaway, 72 Wyo. 509, 267 P.2d 970 (1954); Curran v. State, 12 Wyo. 553, 76 P. 577 (1904). Appellant fails to consider that the evil which the legislature intended to address in this instance may just as well have been the mere wrongful possession and use of stolen property. The evil character of such possessory acts does not disappear when an unproved thief engages in such acts only to magically reappear when a fence or some other third party engages in similar conduct. Where the thief can be proven to have committed the lesser offense, we will not permit him to obstruct prosecution by giving partial proof of greater guilt. Appellant was properly charged and prosecuted for concealing stolen property.

Appellant's reassertion of this issue after the State's presentation of its case, however, raises the additional question of whether sufficient evidence was produced on this offense to overcome his motion for acquittal. We have frequently articulated our standard of review with respect to that question. A motion for acquittal should be denied where, viewing the evidence in the light most favorable to the State, a reasonable inference can be drawn from that evidence that the defendant is guilty beyond a reasonable doubt. The motion should be granted, however, where there is such a lack of substantial evidence such that a reasonable juror must harbor a reasonable doubt as to the existence of an essential element of the crime. Washington v. State, 751 P.2d 384, 386-87 (Wyo.1988); Abeyta v. State, 705 P.2d 330, 332 (Wyo.1985)- The elements of the offense with which appellant was charged are set forth in W.S. 6-3-403, which provides in pertinent part:

; Russell v. State, 583 P.2d 690, 693-94 (Wyo.1978).

"(a) A person who * * * conceals * * * property which he knows, believes or has reasonable cause to believe was obtained in violation of law is guilty of:

"(i) A felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both, if the value of the property is five hundred dollars ($500.00) or more."

Thus, to overcome appellant's motion, the State was required to produce evidence that, at the time and place alleged in the charging documents, appellant: (1) concealed property; (2) of a value of at least five hundred dollars; (3) with the knowledge, belief, or reasonable cause to believe that the property had been illegally obtained.

Appellant concealed the Toyota, for purposes of the statute, if he placed it out of the owner's sight or prevented the owner from recognizing it. However, concealment does not require an effort to disguise or hide the vehicle; it merely requires that appellant drove the vehicle away from where the owner was likely to discover it. Hunter v. State, 704 P.2d 713, 717-18 (Wyo.1985). Appellant's possession of the Toyota in Cheyenne, some eight hours after its theft in Laramie, is circumstantial evidence sufficient to make a prima facie showing that he concealed the car. By demonstrating that it was three years old and cost over two thousand dollars to repair, the State also provided sufficient evidence of the car's value. Finally, the State introduced considerable evidence to indicate appellant's awareness that the vehicle had been illegally obtained. Officer Zukauckas testified to appellant's admission that he took the Toyota in Laramie. The strongest possible proof that a car had been stolen and that a defendant knew that to be the case is provided by evidence of his participation in the theft. Pote, 695 P.2d at 622. Additionally, appellant's evasive actions provide strong circumstantial evidence of his guilty state of mind. The district court correctly...

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