Mendicoa v. State, 88-223

• Decision Date: 06 April 1989
• Docket Number: No. 88-223,88-223
• Citation: 771 P.2d 1240
• Parties: Modesto MENDICOA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1240

771 P.2d 1240

Modesto MENDICOA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 88-223.

Supreme Court of Wyoming.

April 6, 1989.

Richard H. Honaker of Honaker & Hampton, Rock Springs, and Ronald J. Yengich of Yengich, Rich, Xaiz & Metos, Salt Lake City, Utah, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., and Karen A. Byrne, Sr. Asst. Atty. Gen., for appellee.

Before THOMAS, URBIGKIT, MACY and GOLDEN, JJ., and GRANT, District Judge.

MACY, Justice.

Appellant Modesto Mendicoa appeals from his convictions on four felony counts of cattle rustling in contravention of Wyo.Stat. § 6-3-402(e) (1977) and four misdemeanor counts of transporting livestock across state lines without a brand inspection as proscribed by Wyo.Stat. §§ 11-20-203(a) and (b), 11-20-229, and 11-1-103 (1977).

We reverse.

Appellant presents the following issues for our review:

(I.) DID THE STATE FAIL TO PROVE BEYOND A REASONABLE

DOUBT THAT APPELLANT COMMITTED A LARCENY, AND THEREFORE LIVESTOCK RUSTLING, PURSUANT TO WYOMING STATUTES SECTION 6-3-402(a) AND (e), 1977 AS AMENDED?

(II.) DID THE STATE FAIL TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT UNLAWFULLY TRANSPORTED LIVESTOCK IN VIOLATION OF WYOMING STATUTES SECTION 11-20-203(a) AND (b), 11-20-103, 1977 AS AMENDED?

(III.) ASSUMING THAT THE ALLEGED OFFENSES WERE COMMITTED, DID THE STATE FAIL TO PROVE BEYOND A REASONABLE DOUBT, OR BY ANY STANDARD, THAT APPELLANT COMMITTED SAID OFFENSES IN THE STATE OF WYOMING?

(IV.) DID THE TRIAL COURT COMMIT REVERSIBLE ERROR WHEN IT GAVE INSTRUCTION NUMBER FIVE, WHICH DEALT WITH POSSESSION OF STOLEN PROPERTY?

(V.) WHEN THE TRIAL COURT MADE A PRELIMINARY RULING REGARDING THE STATE'S RIGHT TO IMPEACH APPELLANT ON CROSS EXAMINATION UNDER RULE 608(b) OF THE WYOMING RULES OF EVIDENCE, DID IT ABUSE ITS DISCRETION BY NOT PROPERLY WEIGHING THE RISK OF PREJUDICE AGAINST THE PROBATIVE VALUE OF SUCH EVIDENCE?

(VI.) DID THE TRIAL COURT COMMIT ERROR BY ALLOWING THE STATE TO ADMIT EVIDENCE OF A SUBSEQUENT "BAD ACT" PURSUANT TO WYOMING RULES OF EVIDENCE SECTION 404(b)?

(VII.) DID THE TRIAL COURT COMMIT ERROR BY REFUSING TO DISCHARGE A WITNESS WHO ADMITTED THAT HE AND OTHER WITNESSES HAD VIOLATED THE COURT'S RULE PROHIBITING DISCUSSION OF EVIDENCE BY WITNESSES?

(VIII.) WERE THE REMARKS OF THE PROSECUTOR IN CLOSING ARGUMENT IMPROPER?

The sufficiency-of-the-evidence issues are dispositive for purposes of this appeal. Appellant's issues regarding the contested jury instruction (issue IV) and the jurisdiction of the trial court (issue III) are collateral to the sufficiency-of-the-evidence question and will be discussed in connection therewith. The other issues need not be addressed.

By initial complaint filed October 9, 1986, appellant was charged with sixteen counts of cattle rustling, sixteen counts of illegal transport of livestock, and one count of perjury. After a preliminary hearing, appellant was bound over to the district court on five counts each of rustling and illegal transport involving five cows allegedly stolen in Sweetwater County, Wyoming, and transported to the state of Utah. An information was filed on October 16, 1986. Charges regarding one of the cows were subsequently dismissed; i.e., one count of rustling and one count of illegal transport. After various pretrial proceedings, a five-and-one-half-day trial commenced on April 11, 1988, at the conclusion of which the jury returned a verdict of guilty on all counts charged. Appellant was sentenced to serve consecutive terms of not less than three years nor more than five years at the Wyoming State Penitentiary on the four rustling charges and a term of six months in the Sweetwater County jail for each of the four misdemeanor counts, with the county jail time to be served concurrently with the prison sentences. Appellant was also fined $10,000, assessed a $10,000 surcharge to the Crime Victims' Compensation Account, and ordered to pay restitution.

The evidence presented at trial disclosed the following facts and sequence of events. Birdie Jolley is a rancher in Sweetwater County, Wyoming. In 1982 or 1983 Ms. Jolley purchased one of the subject cows (the Jolley cow) from a North Dakota rancher. This particular cow was distinctly recognizable because of its short crooked horn and was used by Ms. Jolley as a "marker" cow in keeping track of her cattle. In the fall of 1984 Ms. Jolley discovered that a number of her cattle, including the Jolley cow, were missing from her ranchlands. Although some of the missing cows were found or returned on their own by the following spring branding, several cows were not recovered, including the Jolley cow. Ms. Jolley reported the missing cattle to Larry Paine, Sweetwater County Undersheriff, in November of 1985. Neither Ms. Jolley nor anyone in her family had ever sold cattle to appellant.

Howard Routh is also a Sweetwater County rancher. In early January 1986 he discovered that ten to fifteen of his cattle were missing from his herd pastured near Rock Springs, Wyoming. Mr. Routh determined these cattle were missing by driving in his car around his herd of approximately 500 cattle. Mr. Routh never reported the missing cattle. Mr. Routh's brand and earmark were on three of the subject cows in this case (the Routh cows). Mr. Routh had never directly sold cattle to appellant, although appellant purchased seven of Routh's cows at an auction in Riverton, Wyoming, in 1984. Testimony at trial indicated that the subject Routh cows were too young to have been among the cows appellant purchased in 1984.

Appellant is a cattle broker and rancher with various ranch holdings in eastern Utah. Testimony at trial indicated that he bought and sold several thousand cattle per year during the time frame involved in this case. In February of 1986, H.E. Graham, a Texas rancher, negotiated a purchase of approximately 550 cows from appellant. Mr. Graham had leased pasture land in Utah for the cattle. In mid-February 1986 appellant delivered the cattle to Mr. Graham in several truck loads over a period of about ten days. Some of the deliveries were made after dark. Although under the terms of the sale agreement the cattle were to be blood tested and branded with Mr. Graham's brand prior to delivery, many of the cattle were delivered without that brand. The final total of cattle delivered to Mr. Graham was 487 cows and 117 calves. Appellant provided Mr. Graham with a proper brand inspection on the first delivery consisting of forty-seven cows and eight calves. The remaining cattle were delivered with simply a change-of-pasture permit or a transport-to-market permit, neither of which indicates a change of ownership or suffices as a proper brand inspection.

Boyd Pallesen, a brand inspector for the State of Utah, performed the change-of-pasture inspections of the cattle upon appellant's representation that he needed to move the cattle to another pasture. Appellant did not inform Mr. Pallesen that the cattle had been sold. Mr. Pallesen testified that for a change-of-pasture permit he conducts a less thorough inspection than that which is required for a change-of-ownership permit. On one of the inspections Mr. Pallesen noticed that some of the cattle had been freshly branded with a 2G brand, a brand with which he was not familiar. Upon inquiry, appellant attempted to persuade Mr. Pallesen that the 2G brand belonged to the BLM or to the State of Utah, to which Mr. Pallesen replied that neither of those entities owned brands. Appellant never would tell Mr. Pallesen whose brand it was, and Mr. Pallesen suspected something was amiss. Mr. Pallesen thereafter learned that the 2G brand belonged to Mr. Graham.

Eventually, on March 25, 1986, Mr. Pallesen and his supervisor conducted a brand inspection of the cattle Mr. Graham had purchased from appellant since the prior inspections were insufficient for a change-of-ownership permit. In the course of this inspection, they cut out four strays and impounded them for return to their rightful owners. Although he was not satisfied with the quality of the brand inspection conducted--many of the cattle were not inspected--Mr. Pallesen, at the express direction of his supervisor, wrote out a brand inspection for 456 of the 487 cattle purchased by Mr. Graham.

In early March 1986, Undersheriff Paine had informed Mr. Pallesen of the missing Jolley cattle and described their brand. On March 29, 1986, Mr. Pallesen contacted Undersheriff Paine and informed him that one of the missing cattle had turned up among the strays culled from the Graham herd in Utah. Undersheriff Paine and Ms. Jolley subsequently identified the cow as the subject Jolley cow. Thereafter, in April 1986, various law enforcement personnel, including Undersheriff Paine and Mr. Pallesen, reinspected the Graham herd and discovered the three subject Routh cows. ¹ Appellant was unable to produce any proof of ownership for the Jolley cow or the Routh cows. The suspect cattle were transported to Cheyenne, Wyoming, to be held as evidence.

In addition to that already mentioned, other evidence was produced at trial demonstrating appellant's attempts to evade a proper brand inspection and to conceal his lack of ownership of the subject cattle. This evidence included alteration of documents and an attempt to bribe a former brand inspector into issuing a phony brand inspection covering the Routh cattle. Additional evidence will be discussed as it pertains to specific aspects of the legal analysis.

Our standard of review to a sufficiency-of-the-evidence challenge in a criminal case is well settled. We examine all the evidence in the light most favorable to the State to determine if the verdict is supported by sufficient evidence. Roose v. State, 759 P.2d 478, 487 (Wyo.1988); Jozen v. State, 746 P.2d 1279, 1282 (Wyo.1987).

[I]t is not whether the evidence establishes guilt beyond a reasonable doubt for us, but rather whether...