GRANZER v. The State of Wyo.

• Decision Date: 29 September 2010
• Docket Number: No. S-09-0161.,S-09-0161.
• Citation: 2010 WY 130,239 P.3d 640
• Parties: Sally Jo GRANZER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

239 P.3d 640

2010 WY 130

Sally Jo GRANZER, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

No. S-09-0161.

Supreme Court of Wyoming.

Sept. 29, 2010.

COPYRIGHT MATERIAL OMITTED.

Representing Appellant: Diane Lozano, Wyoming State Public Defender; Tina Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel; Wyoming Public Defender Program. Argument by Mr. Alden.

Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Senior Assistant Attorney General. Argument by Ms. Pojman.

Before KITE, C.J., and GOLDEN, HILL, VOIGT ^* , and BURKE, JJ.

GOLDEN, Justice.

[¶ 1] A jury convicted Appellant Sally Joe Granzer of child endangerment for knowingly and willfully permitting a child to enter and remain in a dwelling wherein methamphetamine was stored. Granzer seeks reversal of that conviction on grounds of insufficient evidence, double jeopardy, and evidentiary error. We will affirm.

ISSUES

[¶ 2] Granzer presents these issues:

I. Should the trial court have granted the motion for judgment of acquittal at the close of the State's case and was the evidence presented at trial sufficient to support the jury's verdict?

II. Did the trial court err in declining to dismiss for double jeopardy?

III. Did the trial court err in denying the motion for mistrial?

FACTS

[¶ 3] Around 11:00 o'clock on the morning of October 10, 2006, Deputies Tony Seeman and Trevor Osborn of the Campbell County Sheriff's Office accompanied officials from the Department of Family Services (DFS) to Granzer's trailer home in Gillette to investigate Granzer's suspected involvement with methamphetamine. Granzer, her roommate, Melissa Selfe, and Selfe's two-year-old daughter, GL, were present when the deputies and DFS officials arrived. During a search of the residence, the deputies found several items of drug paraphernalia, including numerous pipes and a light bulb used to smoke methamphetamine, and several Ziploc baggies. All of the items contained methamphetamine residue. The deputies also found a baggie containing a quantifiable amount of methamphetamine in crystalline form hidden in a recliner where Granzer was sitting during the search.

[¶ 4] Granzer was arrested and later charged with one count of felony child endangerment under Wyo. Stat. Ann. § 6-4-405(a)(iii) (LexisNexis 2009), for permitting GL to be present in her home at the time methamphetamine was being stored. In August 2007, a jury convicted Granzer on the charged crime, and she received a suspended prison sentence of 18 to 36 months. We reversed Granzer's conviction because of an instructional error and remanded the case for a new trial. Granzer v. State, 2008 WY 118, ¶¶ 20-22, 193 P.3d 266, 272 (Wyo.2008) ( Granzer I ).

[¶ 5] On remand, Granzer moved to dismiss the criminal action on double jeopardy grounds. Granzer contended that she was being placed twice in jeopardy for the same offense because she had already been convicted of misdemeanor possession of a controlled substance under Wyo. Stat. Ann. § 35-7-1031(c)(i)(C) (LexisNexis 2009) stemming from the events of October 10, 2006, a crime she claimed constituted a lesser-included offense of the charged felony child endangerment offense. The district court rejected Granzer's double jeopardy claim and denied the motion to dismiss.

[¶ 6] Granzer's trial commenced on March 16, 2009. At the close of the State's case, Granzer moved for judgment of acquittal alleging the State had failed to provide sufficient evidence proving all of the elements necessary for conviction on the charged offense. The district court denied the motion, and Granzer proceeded to present evidence in defense of the charge. On March 17, a jury once again convicted Granzer of child endangerment. The district court imposed the original 18- to 36-month prison sentence, which it then suspended in favor of four years of supervised probation. This appeal ensued. Additional facts will be set forth in our discussion of the issues.

DISCUSSION

Sufficiency of the Evidence

[¶ 7] Granzer questions the legal sufficiency of the evidence supporting her conviction. Subsumed in her argument is a challenge to the adequacy of the evidence at the close of the State's case and, thus, the propriety of the district court's denial of her motion for judgment of acquittal. As noted above, Granzer introduced evidence in her defense after the district court denied her motion. We have previously held that a defendant's introduction of evidence following the denial of a judgment of acquittal motion at the conclusion of the State's case constitutes a waiver of that motion, thereby precluding appellate review of the trial court's ruling. Butcher v. State, 2005 WY 146, ¶¶ 12, 14, 123 P.3d 543, 548 (Wyo.2005); Robinson v. State, 11 P.3d 361, 368 (Wyo.2000); Hodges v. State, 904 P.2d 334, 339 (Wyo.1995). Consistent with this precedent, we hold that Granzer waived her right to challenge the propriety of the district court's denial of her motion in this appeal. ¹

[¶ 8] We now turn our attention to Granzer's claim that the trial evidence as a whole is insufficient to support her conviction. When reviewing a sufficiency of the evidence claim, we must determine whether the evidence and any reasonable inferences drawn from it, when viewed in the light most favorable to the State, are adequate to permit the trier of fact to find guilt beyond a reasonable doubt. Granzer, ¶ 23, 193 P.3d at 273; Dettloff v. State, 2007 WY 29, ¶ 23, 152 P.3d 376, 383 (Wyo.2007); Statezny v. State, 2001 WY 22, ¶ 15, 18 P.3d 641, 645 (Wyo.2001). The jury has the responsibility to resolve conflicts in the testimony, weigh the evidence and draw reasonable inferences from the facts. Sotolongo-Garcia v. State, 2002 WY 185, ¶ 11, 60 P.3d 687, 689 (Wyo.2002). We will not substitute our judgment for that of the jury; our only duty is to determine whether a quorum of reasonable and rational individuals would, or even could, have found the essential elements of the crime were proven beyond a reasonable doubt. Conine v. State, 2008 WY 146, ¶ 5, 197 P.3d 156, 159 (Wyo.2008); Grissom v. State, 2005 WY 132, ¶ 24, 121 P.3d 127, 136 (Wyo.2005).

[¶ 9] Granzer was convicted of child endangerment under Wyo. Stat. Ann. § 6-4-405(a)(iii) (LexisNexis 2009), which states in pertinent part: “no person shall knowingly and willfully ... permit any child to ... [e]nter and remain in a ... dwelling ... that the person knows is being used to ... store methamphetamines.” At trial, and in accordance with the statute, the district court instructed the jury that it should not convict Granzer unless it found the following elements were proven beyond a reasonable doubt:

1. On or about the 10th day of October, 2006;

2. In Campbell County, Wyoming;

3. The Defendant, Sally Jo Granzer;

4. Knowingly and willfully permitted;

5. A child (GL);

6. To enter and remain in a dwelling;

7. That the Defendant knew was being used to store methamphetamines.

[¶ 10] In attacking her conviction, Granzer does not challenge the adequacy of the evidence proving that methamphetamine was stored in her trailer. Nor does she claim the evidence failed to prove she knew of the drug's presence. Rather, her complaint concerns whether sufficient evidence was presented to support the jury's determination that she knowingly and willfully permitted GL to enter and remain in the residence on October 10, 2006.

[¶ 11] At trial, Deputy Seeman testified that on the morning of October 10, Granzer informed him that both Melissa Selfe and GL were present in the trailer. He also testified it appeared GL had been staying with her mother at the trailer. In addition, Selfe testified that, although GL resided elsewhere, she occasionally babysat GL during the day. Selfe testified that Granzer knew about her babysitting responsibilities, knew it was possible GL could be in the trailer at any time, and knew GL had been at the trailer with Selfe on October 1. Based on this testimony, the jury could have rationally concluded that Granzer had, for some time, extended permission for GL to enter and remain in the trailer for such purposes. The jury could also have reasonably inferred from Granzer's knowledge of GL's presence that she had at least tacitly given permission for the child to visit and stay with her mother. Although no direct evidence was presented that Granzer expressly consented to GL's presence in the trailer on October 10, the statute does not require that a defendant give express consent or permission for a child to enter and remain in a dwelling, nor does it require that the permission be given at the exact time the child enters and remains in the dwelling. We find sufficient evidence exists to support the jury's guilty verdict.

Double Jeopardy

[¶ 12] Granzer maintains her prosecution for felony child endangerment violated the double jeopardy provisions of the Wyoming and United States Constitutions, and she faults the district court for denying her motion to dismiss the criminal charge. In particular, Granzer contends she was twice placed in jeopardy for the same offense when she was prosecuted for child endangerment after she had been convicted of misdemeanor possession of a controlled substance stemming from the same methamphetamine found in her trailer on October 10. In support of this contention, Granzer argues that misdemeanor possession of methamphetamine is a lesser-included offense of the crime of child endangerment. As such, she claims that she could not later be prosecuted separately for the greater child endangerment offense. We examine de novo the question of whether Granzer's constitutional right was violated in this instance. Daniel v. State, 2008 WY 87, ¶ 7, 189 P.3d 859, 862 (Wyo.2008).

[¶ 13] The Fifth Amendment to the United States Constitution and Article 1, Section 11 of the Wyoming Constitution...