McInturff v. State

• Decision Date: 15 March 1991
• Docket Number: 89-71,Nos. 89-70,s. 89-70
• Citation: 808 P.2d 190
• Parties: Edward McINTURFF, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). (Two Cases).
• Court: Wyoming Supreme Court

Page 190

808 P.2d 190

Edward McINTURFF, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). (Two Cases).

Nos. 89-70, 89-71.

Supreme Court of Wyoming.

March 15, 1991.

Dallas J. Laird, Casper, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Karen A. Byrne, Sr. Asst. Atty. Gen., Edwin Wall, Student Intern, Cheyenne, for appellee.

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

GOLDEN, Justice.

Edward Bruce McInturff challenges his convictions for violation of W.S. 6-3-403(a)(i) (Cum.Supp.1987), receiving, concealing or disposing of stolen property with a value of more than $500, and for violation of W.S. 6-8-102 (June 1983 Repl.), felon in possession of a firearm. McInturff was sentenced to consecutive terms of nine to ten years imprisonment on the stolen property charge and two to three years for felon in possession of a firearm. We affirm the felon in possession conviction, but reverse on the matter of receiving, concealing or disposing of stolen property.

FACTS

McInturff's convictions stem from a series of three auto burglaries committed between The first vehicle burglarized was a Ford Bronco II owned by Kasper Landman, a special agent with the Wyoming Division of Criminal Investigation (DCI). Landman's Bronco II was burglarized during the night of May 3-4, 1988, while in the Casper Days Inn parking lot. The second vehicle, owned by Mark Horton, and the third vehicle, owned by Ricky Wilson, were both burglarized on the night of May 8-9, 1988, in the Casper Motel 6 parking lot. A .223 calibre semi-automatic rifle, clothing, tapes, radar detectors, a pair of binoculars, a mini-cassette recorder, an overhead projector, fishing rods, fishing tackle, and a variety of other personal items were taken from the vehicles.

May 3, 1988, and May 9, 1988, by his sons John and Ricky McInturff. The vehicles were burglarized while McInturff's sons were staying with him, and the stolen property was brought to McInturff's home, where it was divided amongst the three McInturffs and Edward McInturff's live-in girlfriend, Nancy Reeves. McInturff was arrested after Reeves called local law enforcement authorities on May 31, 1988, and then met with Casper police officer C.J. May and turned over some of the stolen property to him. She testified that she did so because she was afraid of McInturff.

On June 9, 1988, the Casper police obtained a warrant to search McInturff's home. Officer May executed the warrant the following day and found in McInturff's closet a cassette case and clothing, including a pair of Tony Llama boots, taken in the auto burglaries.

McInturff was initially charged on June 9, 1988, with unlawful entry and with receiving and concealing stolen property taken from the Kasper Landman vehicle. The receiving or concealing stolen property charge was retained in an information filed on June 30, 1988, but the unlawful entry charge was dropped. On October 4, 1988, the state filed a complaint and affidavit alleging that McInturff was a felon in possession of a firearm. It then moved for consolidation of the felon in possession and the receiving or concealing stolen property informations.

On October 28, 1988, the state filed an amended information that basically recited the language of W.S. 6-3-403(a)(i), and deleted any specific reference to the Landman auto burglary. The amended information was accompanied by a bill of particulars that provided details about McInturff's involvement over a number of days with property stolen from the Landman, Horton and Wilson vehicles. McInturff filed a motion to dismiss the state's amended information, which the court denied in a November 28, 1988 order that also granted the state's motion to consolidate. McInturff stipulated that he had been previously convicted of a violent crime. ¹

McInturff's trial began on December 5, 1988, and he was found guilty by the jury on December 7, 1988. Sentence was pronounced on February 14, 1989.

ISSUES

McInturff presents four arguments:

1. The trial court erred in allowing the state to amend its information, thereby depriving appellant of his right to due process of law.

2. The court erred in denying the appellant the right to present his defense to the jury in the form of two jury instructions defining "possession" concerning the court's charge of the crime of "felon in possession of a firearm."

3. The court committed plain error in failing to grant a mistrial when the state presented prejudicial and irrelevant testimony on the part of the state's witness Nancy Reeves.

4. The state did not meet its burden of proof by proving beyond a reasonable doubt that the stolen property allegedly in the possession of the appellant had a value in excess of five hundred dollars ($500.00).

The state responds directly to each argument.

AMENDMENT OF THE INFORMATION

Errors

We agree with McInturff that the trial court erred when it permitted the amendment. The amended information fails for two reasons. First, the challenged amendment, which came after McInturff's preliminary hearing, effectively charges different offenses in violation of W.R.Cr.P. 9(c). ² This court applied W.R.Cr.P. 9(c), in Sanville v. State, 553 P.2d 1386, 1390 (Wyo.1976), affirming that an information may not be amended if it prejudices the defendant or charges a different offense. The prohibition against charging additional or different offenses implicates the defendant's right to know the charges against him and to prepare a defense to those charges, which is protected by U.S. Const. amend. VI, and Wyo. Const. art. 1, § 10. See Stewart v. State, 724 P.2d 439, 440 (Wyo.1986); State v. Pelkey, 109 Wash.2d 484, 745 P.2d 854, 855-56 (1987).

In this case the original information charged McInturff with an offense involving receipt, concealment or disposal of property taken from the Landman vehicle. The amended information and the attendant bill of particulars charged him with an offense involving property taken from two additional vehicles. This property was received, concealed or disposed of in acts largely separate from those covered by the initial information. The violations of W.S. 6-3-403(a)(i) involving property taken from the Horton and Wilson vehicles were not mentioned in the original information. As a result they are additional offenses. Even though they were not identified as separate or replacement counts they are effectively a violation of the W.R.Cr.P. 9(c) prohibition against charging additional or different offenses in an amended information.

Secondly, the amended information impermissibly combines several separate and independent offenses into one count. Even if there was no issue of improper amendment the information as amended would be void for duplicity on this basis. Edelhoff v. State, 5 Wyo. 19, 36 P. 627 (1894). This court said that "[n]o man should be tried or convicted for several offenses when he is charged with but one." Edelhoff, 5 Wyo. at 33, 36 P. at 632. That is precisely what happened to McInturff as the result of the amended information and its supplemental bill of particulars.

McInturff, charged with a single count in violation of W.S. 6-3-403(a)(i), was actually convicted for the aggregate of several separate and distinct violations of that statute, as is evident from the state's bill of particulars and proof at trial. Beyond the fundamental problem of duplicity, one obvious result of the stacking of McInturff's offenses is that the value of the property involved in the various offenses more readily totalled enough for the state to obtain a felony conviction. This result is also improper. The only way values of property received or concealed in separate acts can be aggregated in one count is with a charge of simultaneous possession, based on all stolen property in the defendant's possession when he is arrested, or at another time fixed by the evidence. Sanchez v. State, 97 N.M. 445, 640 P.2d 1325, 1326 (1982).

Proper Application of W.S. 6-3-403(a)(i)

W.S. 6-3-403(a)(i) offers alternate definitions of, or means of satisfying, the offense of wrongful taking or disposing of property. The statute is violated by an act of receipt or concealment or disposal of stolen property accompanied by the requisite knowledge. Each such act that is a distinct transaction, complete in itself, may be charged as a separate offense. This obviously extends as well to multiple independent acts meeting any one of the alternate It may be acceptable to charge a defendant with a single count which employs the language of the statute and does not include any underlying facts, as was done in the amended information. See Pote; cf. Sanchez. However, this method then limits the state to proving only a single complete act in violation of the statute for each generally stated count, even though, as here, there may have been multiple offenses in separate acts of receipt, concealment and disposal. The state may elect which alternate definition it intends to prove after filing the information so long as its focus can be discerned from "the bill of particulars, opening statement, proofs and instructions to the jury." Pote, 695 P.2d at 622. ³ In this case it is not possible to identify the state's focus, as the bill of particulars and the evidence went to all three definitions.

definitions, such as multiple receipts or concealments. Pote v. State, 695 P.2d 617, 623 (Wyo.1985). The key to analyzing this issue is identification of independent and complete transactions which violate 6-3-403(a)(i). Each distinct transaction should be separately charged and may not be combined with other independent offenses in the state's proof. The record before us reveals that McInturff was involved in several distinct transactions. There were at least two separate receipts, several concealments, and multiple disposals of the stolen property.

As has already been stated, simultaneous possession is a special case. The state may charge...