Lobatos v. State

• Decision Date: 26 May 1994
• Docket Number: No. 93-174,93-174
• Citation: 875 P.2d 716
• Parties: Sabino LOBATOS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 716

875 P.2d 716

Sabino LOBATOS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 93-174.

Supreme Court of Wyoming.

May 26, 1994.

State Public Defender Program, Leonard D. Munker, State Public Defender, Deborah Cornia, Appellate Counsel, Cheyenne, and Bernard P. Haggerty, Laramie, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia L. Hackl, Deputy Atty. Gen., D. Michael Pauling, Senior Asst. Atty. Gen., and Georgia L. Tibbetts, Asst. Atty. Gen., Cheyenne, for appellee.

Before THOMAS, CARDINE, GOLDEN and TAYLOR, JJ., and BROWN, J. (Retired).

GOLDEN, Justice.

Following a jury conviction for two felony charges of delivery of marijuana within five hundred feet of a public school to an individual under the age of eighteen years, appellant Sabino Lobatos was sentenced to concurrent terms of two to four years in the Wyoming State Penitentiary, fined $1,000, and ordered to compensate the Victim's Compensation Fund. Appellant alleges constitutional rights violations and insufficient evidence require a reversal of his conviction.

We affirm.

ISSUES

Appellant raises the following issues:

I. Whether trial counsel's deficient performance--including his failure to file any pretrial motions--deprived Mr. Lobatos of his state and federal constitutional right to effective assistance of counsel, requiring reversal of Mr. Lobatos's convictions.

II. Whether the circumstantial "other crimes" evidence used by the jury to find Mr. Lobatos guilty of count I was constitutionally insufficient evidence.

III. Whether Mr. Lobatos's absence at arraignment, the jury instruction conference, the jury question conference, and a portion of sentencing, constituted reversible error.

IV. Whether the trial court's failure to advise Mr. Lobatos, on the record, about his right to testify constituted reversible error.

V. Whether the trial court's issuance of a no-knock search warrant violated Mr. Lobatos's state and federal constitutional rights to be free from unreasonable search and seizure.

The state restated the issues as:

I. Was there sufficient evidence to convict appellant on count I?

II: Was appellant's right to be present satisfied by his presence at all critical stages of his trial?

III: Did the trial court commit reversible error by failing to obtain an on the record waiver by appellant of his right to testify?

IV: Was the no-knock search warrant properly issued pursuant to W.S. § 35-7-1045?

V: Did appellant receive effective assistance of counsel?

FACTS

On the mornings of December 2 and December 3, 1992, several junior high school students entered the basement of an apartment building across the street from their school in Gillette, Wyoming. The students frequently congregated in a laundry room of the basement to smoke cigarettes. Appellant's apartment adjoined the laundry room. Two students testified that on the morning of December 2, 1992, appellant entered the laundry room and gave them something which looked like a cigarette but which he called a "doobie." The students who smoked it testified it smelled differently than cigarettes, had a strong stench and affected them differently than cigarette smoking by either giving them a "buzz" or making them feel "lightheaded." Three students testified they were in appellant's apartment on the morning of December 3, 1992, when he passed around a pipe filled with marijuana. Two students smoked from the pipe. One returned to school and visited her counselor. The school nurse and the principal of the junior high school smelled a heavy smoke odor from the student and after conducting a brief evaluation suspected she had used drugs. The Gillette police department was called; a detective came to interview the student and also smelled the smoke. The detective identified the odor as marijuana and had the student draw a picture of the pipe which had been passed around in the apartment. The detective then interviewed two other students about the events of the previous two mornings while a fellow detective left to get a search warrant for the basement apartment.

The search warrant the police acquired and executed was a "no-knock" search warrant. A junior high student was inside the apartment when the police searched. She later testified she too had smoked from the pipe. During the search, police found a baggie of leaves and a pipe. Chemical analysis confirmed the contents of the pipe and baggie were marijuana. Chemical analysis of the appellant's and two students' urine and blood were negative for marijuana use, however. It was established at trial that appellant's age was fifty-two years and the apartment was located within 500 feet of a public school. Appellant was positively identified by fourteen and fifteen-year old students as the one who delivered marijuana to them.

During jury deliberations, the trial court received two questions from the jury. One asked, "[C]an you explain what circumstantial evidence is and how it can or cannot be used?" The court's response instructed the jury to reread instruction No. 9 which was a definition of circumstantial evidence and direct evidence. The other jury question and the court's response is discussed in detail in the discussion of this opinion.

The jury found appellant guilty on both charges, and this appeal followed.

DISCUSSION

Conviction for unlawful delivery of a controlled substance carries a maximum imprisonment penalty of ten years and a maximum fine of $10,000. WYO.STAT. § 35-7-1031(a)(ii) (1988). However, if the delivery is to a person under eighteen who is at least three years junior to the deliverer, WYO.STAT. § 35-7-1036(a) (1988) authorizes the penalty under § 35-7-1031(a) to double. WYO.STAT. § 35-7-1036(b)(i)(A)(I) and (II) (Supp.1993) further increase the penalties if one is convicted of a delivery under § 35-7-1031(a) or § 35-7-1036(a) made within 500 feet of school property used primarily for kindergarten through twelfth grade education.

INSUFFICIENT EVIDENCE

Appellant contends the only evidence that marijuana was the substance delivered to the students on the morning of December 2 was inadmissible and, therefore, the jury improperly concluded the state had proven the element of substance identity beyond a reasonable doubt. This court's standard for reviewing insufficient evidence claims in criminal cases is well established. Bouwkamp v. State, 833 P.2d 486, 493 (Wyo.1992). We view the evidence and appropriate inferences in the light most favorable to the state and determine whether any rational jury could have found beyond a reasonable doubt that the defendant violated the statute as charged. Id. We do not consider the conflicting evidence of the defendant and, as a reviewing court, we do not reweigh the evidence or reexamine the credibility of the witnesses. Pisano v. State, 828 P.2d 666, 669 (Wyo.1992); Ostrowski v. State, 665 P.2d 471, 481 (Wyo.1983). Circumstantial evidence stands equally with direct evidence and is tested for sufficiency under this same standard. Seaton v. State, 811 P.2d 276, 278-79 (Wyo.1991).

Appellant recites the events during jury deliberations as proof the jury's guilty verdict on count I was based upon inadmissible evidence. As already mentioned, the jury asked two questions during deliberations. The jury's second question asked, "[A]nd can we use evidence from the December 3rd to reach a verdict for December 2nd?" There was no objection when the court responded:

Yes, you can consider all evidence produced during the trial but you must find beyond a reasonable doubt all elements as shown in instruction # 4 * * * including the date of occurrence, in order to find the defendant guilty on Count I. If you find one or more elements not proved beyond a reasonable doubt as shown in instruction # 4, you should find the defendant not guilty on Count I.

Appellant now claims this instruction was inconsistent with jury instruction No. 8. That instruction stated:

The defendant has been charged with two separate offenses. It is your duty to deliberate upon and decide each of the State's charges separately and independently from the other and under no circumstances are you to consider the facts and evidence relating to one of the charges in determining the guilt or innocence of the defendant on the other charge.

Appellant contends the lack of direct evidence of the cigarette's contents and the court's response permitted the jury to find him guilty of count I using only the circumstantial evidence that he was guilty of count II. He reasons that since this instruction permitted the jury to consider the contents of the baggie seized December 3, 1992, to determine whether marijuana was in the cigarette delivered December 2, 1992, the jury used circumstantial evidence of "other crimes" in violation of WYO.R.EVID. 404(b) and its verdict was therefore supported by constitutionally insufficient evidence. We do not agree with this characterization of events and believe appellant misconstrues the operation of Rule 404(b).

The jury instructions are not inconsistent with one another, but complementary. As informed by instruction No. 8, the jury could not assume that the cigarette's contents was marijuana simply because the baggie's contents was proven to be marijuana. However, as informed by the second instruction, the jury is permitted to consider all of the facts and evidence produced during the trial. The jury was also instructed that it was proper to consider circumstantial evidence and weigh it equally with direct evidence.

While there was no direct evidence identifying the contents of the cigarette given to the students on December 2, 1992, the element of substance identity can be proven beyond a reasonable doubt based upon circumstantial evidence. United States v. Harrell, 737 F.2d 971, 978 (11th Cir.1984), cert. denied, 470 U.S. 1027, 105 S.Ct. 1392, 84 L.Ed.2d 781 (1985). Such a rule is generally followed by courts because it is realized that unlawful distribution of a...