Guerrero v. State, No. S–10–0263.

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBURKE
Citation2012 WY 77,277 P.3d 735
Decision Date31 May 2012
Docket NumberNo. S–10–0263.
PartiesFrancis Xavier GUERRERO, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

277 P.3d 735
2012 WY 77

Francis Xavier GUERRERO, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).

No. S–10–0263.

Supreme Court of Wyoming.

May 31, 2012.



Representing Appellant: Diane E. Courselle, Director, and Brian Quinn, Student Intern, Defender Aid Program, University of Wyoming College of Law.
Argument by Mr. Quinn.

Representing Appellee: Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Justin A. Daraie, Assistant Attorney General. Argument by Mr. Daraie.


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

BURKE, Justice.

[¶ 1] Appellant, Francis Xavier Guerrero, challenges his conviction of felony larceny in violation of Wyo. Stat. Ann. § 6–3–402(a). He claims the district court erroneously instructed the jury on the elements of larceny. He also contends that the evidence presented at trial was insufficient to support his conviction.

[277 P.3d 736]

We conclude the evidence was insufficient to sustain the conviction and, accordingly, reverse.

ISSUES

[¶ 2] Appellant raises the following issues:

1. Was the jury properly instructed on the elements of felony larceny?

2. Was there sufficient evidence to support the conviction of felony larceny?

The State presents the issues as follows:


1. Did the district court commit plain error when it omitted the phrase “took and carried away” from the jury instruction setting out the elements of larceny?

2. Did the prosecution produce sufficient evidence of caption and asportation to sustain Guerrero's larceny conviction beyond a reasonable doubt?

FACTS

[¶ 3] Appellant was employed as a server at the Tortilla Factory restaurant in Cheyenne from August, 2006 to November, 2008. Servers at the restaurant are required to use the restaurant's computers to enter food orders and generate customer checks. Each server uses a unique two-digit code to log into the computers' cashier program, which keeps track of a server's total amount of sales, number of food items sold, voided orders, and discounts issued during a shift. Discounted and voided orders must be approved by a restaurant manager and entered into the computer using a manager's five-digit code. Because the computers do not hold cash, Appellant and the other servers at the restaurant were required to hold money received from cash-paying customers until the end of a shift. When a server's shift was over, the server would print out an individualized server report from the restaurant's computer system and turn over an amount of cash, checks, and credit card receipts equaling the server's total amount of sales, less any voids and discounts, as reflected on the server report.

[¶ 4] On November 14, 2008, as Appellant was logging into the restaurant computer's cashier program, another employee at the Tortilla Factory observed Appellant enter a four- or five-digit code into the program, which was represented by four or five asterisks on the computer screen. This attracted the employee's notice because all of the servers at the restaurant were identified by two-digit codes, and only restaurant managers logged into the computer using five-digit codes. When Appellant saw the employee standing behind him, he cleared the transaction and positioned himself so that the employee could no longer see the screen.

[¶ 5] On the following day, the employee described the incident to her supervisor, Isabell Tapia, who managed the restaurant with her brothers, Sam and Martin Tapia. At the end of the day, when Appellant handed in his server report, Ms. Tapia noticed an abnormally large number of voids and discounts on the report. Seven other servers worked on November 15, and twenty-three orders were voided that day. Appellant's server report indicated that he had voided nineteen of those orders. Similarly, a total of thirty-seven discounts were entered that day, and thirty-four were attributed to Appellant. Ms. Tapia had been the only manager on duty during Appellant's shift, and she had not approved any of Appellant's voids or discounts.

[¶ 6] After noticing the large number of voids and discounts, Ms. Tapia retrieved Appellant's server reports for the entire week, all of which showed voids and discounts that had not been approved by Ms. Tapia, who had been the manager on duty during Appellant's shifts. Later that evening, Ms. Tapia told her parents, the owners of the Tortilla Factory, about the activity on Appellant's server reports. On the following day, Sam and Martin Tapia accessed historical records of Appellant's server reports and discovered that significantly more voids and discounts had been attributed to Appellant than to all of the other servers combined. The inordinate number of voids and discounts had apparently gone unnoticed for over two years during Appellant's employment as a server at the restaurant, despite the fact that the restaurant managers carefully scrutinized the server reports of other employees during the

[277 P.3d 737]

same period. The server records indicated that Appellant had used Sam's manager code to enter voids and discounts on days when Sam was not working.

[¶ 7] The Tapias subsequently contacted law enforcement. Following an investigation, the State filed an Information charging Appellant with felony larceny under Wyo. Stat. Ann. § 6–3–402(a) (LexisNexis 2007). The Information alleged that Appellant “[d]id unlawfully steal, take and carry, lead or drive away property of another with intent to deprive the owner or lawful possessor, and the value of the property is one thousand dollars ($1,000.00) [o]r more, to wit: did unlawfully take money, the property of the Tortilla Factory with intent to deprive Tortilla Factory....”

[¶ 8] In preparation for trial, the State and the defense submitted proposed jury instructions setting forth the elements of larceny. Appellant proposed that the jury be required to find that he “[s]tole, took and carried, led or drove away” property of another with intent to deprive, echoing the language of Wyo. Stat. Ann. § 6–3–402(a). The State submitted a proposed instruction requiring the jury to find that Appellant “took” property of another. The district court, however, drafted an instruction that would require the jury to find that Appellant “took and carried away” property of another. At the jury instruction conference, the district court altered its proposed jury instruction by substituting “stole” for “took and carried away.” Appellant initially objected to the modification, but subsequently withdrew the objection.1

[¶ 9] At trial, the State contended that Appellant had been voiding and discounting customer orders without the customers' knowledge, and retaining the difference between the full prices paid by the customers and the discounted prices reflected on Appellant's server reports. The State presented testimony from several witnesses, including Isabell and Sam Tapia, as well as documentary evidence showing Appellant's server records for the entire duration of his employment as a server at the Tortilla Factory, to prove its case. Appellant's server records showed that, on many days during 2008, the number of voids and discounts attributable to Appellant surpassed the total entered by all other servers working on those days. For example, on May 3, 2008, 23 discounts and 21 voids were attributed to Appellant, while all other employees working that day entered a total of one discount and two voids. The value of Appellant's discounts and voids amounted to $68.27 on May 3. Similarly, on August 16, 2008, 41 discounts and 25 voids were attributed to Appellant, while all other employees entered a total of seven discounts and five voids. The value of Appellant's discounts and voids on August 16 was $75.83. In total, the voids and discounts attributable to Appellant in 2008 amounted to $7,223.38. The evidence also indicated, however, that the restaurant computer's cashier program allowed managers to alter or amend customer checks after they had been entered in the computer.

[¶ 10] At the conclusion of the State's case-in-chief, Appellant moved for a judgment of acquittal on the grounds that the State had failed to establish “that any money was actually taken from the restaurant.” Appellant also argued that “The state has charged [the crime] as a larceny, not a[s] larceny by bailee, and the fourth element of that larceny is took and carried away.” The court ruled that the State had presented sufficient circumstantial evidence to establish the elements of larceny and allowed the trial to continue. After being instructed, the jury deliberated and returned a guilty verdict.

[¶ 11] The district court sentenced Appellant to three to five years of imprisonment, and suspended that term of incarceration in favor of seven years of supervised probation. Appellant did not initially...

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16 practice notes
  • Snyder v. State, S-20-0245
    • United States
    • United States State Supreme Court of Wyoming
    • October 12, 2021
    ...was proven beyond a reasonable doubt." Andersen v. State , 2014 WY 88, ¶ 23, 330 P.3d 256, 264 (Wyo. 2014) (quoting Guerrero v. State , 2012 WY 77, ¶ 14, 277 P.3d 735, 738-39 (Wyo. 2012) ). Furthermore, we defer to the jury as the fact-finder, and "assume [the jury] believed only the eviden......
  • Pickering v. State, S-18-0222
    • United States
    • United States State Supreme Court of Wyoming
    • May 29, 2020
    ...applies whether the evidence supporting the conviction is direct or circumstantial. Id., ¶ 44, 373 P.3d at 386 (quoting Guerrero v. State, 2012 WY 77, ¶ 14, 277 P.3d 735, 738-39 (Wyo. 2012)).Foltz, ¶ 10, 407 P.3d at 401-02.B. Attempted Second-Degree Murder[¶86] The jury found Mr. Pickering ......
  • Bean v. State, No. S–15–0177.
    • United States
    • United States State Supreme Court of Wyoming
    • May 11, 2016
    ...was proven beyond a reasonable doubt. This standard applies whether the supporting evidence is direct or circumstantial.Guerrero v. State, 2012 WY 77, ¶ 14, 277 P.3d 735, 738–39 (Wyo.2012) (quoting Anderson v. State, 2009 WY 119, ¶ 6, 216 P.3d 1143, 1145 (Wyo.2009) ).[373 P.3d 387 The State......
  • Pickering v. State, S-18-0222, S-19-0151
    • United States
    • United States State Supreme Court of Wyoming
    • May 29, 2020
    ...whether the evidence supporting the conviction is direct or circumstantial. Id. , ¶ 44, 373 P.3d at 386 (quoting Guerrero v. State , 2012 WY 77, ¶ 14, 277 P.3d 735, 738–39 (Wyo. 2012) ). Foltz , ¶ 10, 407 P.3d at 401–02.B. Attempted Second-Degree Murder [¶86] The jury found Mr. Pickering gu......
  • Request a trial to view additional results
16 cases
  • Snyder v. State, S-20-0245
    • United States
    • United States State Supreme Court of Wyoming
    • October 12, 2021
    ...was proven beyond a reasonable doubt." Andersen v. State , 2014 WY 88, ¶ 23, 330 P.3d 256, 264 (Wyo. 2014) (quoting Guerrero v. State , 2012 WY 77, ¶ 14, 277 P.3d 735, 738-39 (Wyo. 2012) ). Furthermore, we defer to the jury as the fact-finder, and "assume [the jury] believed only the eviden......
  • Pickering v. State, S-18-0222
    • United States
    • United States State Supreme Court of Wyoming
    • May 29, 2020
    ...applies whether the evidence supporting the conviction is direct or circumstantial. Id., ¶ 44, 373 P.3d at 386 (quoting Guerrero v. State, 2012 WY 77, ¶ 14, 277 P.3d 735, 738-39 (Wyo. 2012)).Foltz, ¶ 10, 407 P.3d at 401-02.B. Attempted Second-Degree Murder[¶86] The jury found Mr. Pickering ......
  • Bean v. State, No. S–15–0177.
    • United States
    • United States State Supreme Court of Wyoming
    • May 11, 2016
    ...was proven beyond a reasonable doubt. This standard applies whether the supporting evidence is direct or circumstantial.Guerrero v. State, 2012 WY 77, ¶ 14, 277 P.3d 735, 738–39 (Wyo.2012) (quoting Anderson v. State, 2009 WY 119, ¶ 6, 216 P.3d 1143, 1145 (Wyo.2009) ).[373 P.3d 387 The State......
  • Pickering v. State, S-18-0222, S-19-0151
    • United States
    • United States State Supreme Court of Wyoming
    • May 29, 2020
    ...whether the evidence supporting the conviction is direct or circumstantial. Id. , ¶ 44, 373 P.3d at 386 (quoting Guerrero v. State , 2012 WY 77, ¶ 14, 277 P.3d 735, 738–39 (Wyo. 2012) ). Foltz , ¶ 10, 407 P.3d at 401–02.B. Attempted Second-Degree Murder [¶86] The jury found Mr. Pickering gu......
  • Request a trial to view additional results

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