Ogden v. State

• Decision Date: 13 September 2022
• Docket Number: S-22-0024
• Citation: 2022 WY 111
• Parties: WILLIAM E. OGDEN, Appellant (Defendant), v. THE STATE OF WYOMING, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

2022 WY 111

WILLIAM E. OGDEN, Appellant (Defendant), v. THE STATE OF WYOMING, Appellee (Plaintiff).

No. S-22-0024

Supreme Court of Wyoming

September 13, 2022

Appeal from the District Court of Carbon County The Honorable Dawnessa A. Snyder, Judge.

Representing Appellant: Office of the State Public Defender Diane Lozano, Wyoming State Public Defender; Kirk A. Morgan Chief Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee: Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Catherine M. Mercer^[*], Assistant Attorney General; David E. Singleton, Faculty Director, Prosecution Assistance Program, Cheyenne Municipal Court; Morgan I. Cloud, Student Director; Maridi A. Choma, Student Intern. Argument by Ms. Choma.

Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.

GRAY Justice.

[¶1] A jury found William Ogden guilty of one count of felony property destruction and defacement for damaging Efren Hernandez's pickup. Mr. Ogden was sentenced to twelve to fourteen months of incarceration, but the district court suspended his sentence in favor of two years of unsupervised probation. On appeal, Mr. Ogden argues there was insufficient evidence to support his conviction, and the prosecutor committed misconduct when he argued facts not introduced into evidence during his rebuttal closing argument. We affirm.

ISSUES

[¶2] Mr. Ogden raises two issues, which we restate as follows:

1. Was there sufficient evidence to support Mr. Ogden's conviction for felony property destruction and defacement?

2. Did the prosecutor commit misconduct during his rebuttal closing argument?

FACTS

[¶3] On August 27, 2019, someone bashed the driver's side of Mr. Hernandez's pickup with a cinder block. Mr. Ogden was identified as the culprit and was charged with felony property destruction and defacement. At a one-day jury trial, the State called three witnesses. Mr. Ogden did not testify or call any witnesses. The State's witnesses were Mr. Hernandez, Officer Thomas Gamblin, and Philip Canaday. A summary of their testimony follows.

Mr. Hernandez

[¶4] Mr. Hernandez owned a second home in Rawlins, Wyoming. On August 27, 2019, he went there to do some remodeling work, and he parked his pickup on the street in front of the property. While working inside the house, he heard a loud bang. Almost immediately, within seconds, he looked out the window and saw Mr. Ogden walking away from his pickup and "walking across [his] property to [Mr. Ogden's] property." Mr. Ogden's property was directly across the street from Mr. Hernandez's property. Mr. Hernandez did not see anyone else walking or driving nearby. He went outside^[1] and saw that the driver's side of his pickup had been severely dented. He noticed cement powder on the ground near the damaged side of his truck, and it caused him to think that someone had hit his truck with a cinder block. At this point, he called 911.

Officer Gamblin

[¶5] Officer Gamblin testified that he received a call from dispatch reporting that someone had damaged Mr. Hernandez's truck and the suspect, Mr. Ogden, was driving away from the area. When Officer Gamblin arrived at the scene, Mr. Ogden's vehicle was parked on his property and Mr. Ogden was standing outside. Officer Gamblin first talked to Mr. Hernandez who, consistent with his testimony, reported he was repairing his second home when he heard a loud crash, looked out the window, and saw Mr. Ogden walking away from his pickup truck. Officer Gamblin asked Mr. Hernandez if Mr. Ogden was carrying a cinder block. Mr. Hernandez told Officer Gamblin that he did not see one and pointed out that Mr. Ogden was walking away the entire time.

[¶6] Officer Gamblin then assessed the damage to the pickup. The driver's side door was crushed. He saw concrete dust and debris on the truck and the ground. The damage was in the shape of a perfect square resembling the end of a cinder block. He opined that "it was very obvious that whoever had caused the damage had taken a cinder block . . . and had hammered that door really hard, leaving white debris around[.]"

[¶7] Officer Gamblin searched the area for full cinder blocks. He did not find any around Mr. Hernandez's truck or property. He crossed the street to Mr. Ogden's property where he discovered "piles of cinder block. Most of them were broken pieces . . . some [were] half pieces [and others were] . . . full-sized cinder blocks . . . ." He examined the full cinder blocks and did not find any with paint residue or broken edges that would match the pieces laying on the ground near Mr. Hernandez's truck. He took one of the full cinder blocks and placed it right below the damaged area on the pickup. The shape of the cinder block matched the damage. Officer Gamblin never found the specific cinder block that had caused the damage to Mr. Hernandez's truck.

[¶8] Officer Gamblin interviewed Mr. Ogden. He asked about the damage to Mr. Hernandez's truck, told Mr. Ogden that he suspected a cinder block had caused the damage, and informed him that he had been accused of causing the damage. Mr. Ogden replied, "What cinder block did I use? You got to prove which one I used." In Officer Gamblin's experience, this was an unusual response. He testified that "[a] suspect would normally say that they didn't do it, that they had nothing to do with it." Officer Gamblin also testified that during this conversation, Mr. Ogden yelled across the street that Mr. Hernandez "had no proof that he had run into his truck."

Mr. Canaday

[¶9] Mr. Canaday, the owner of Wreck-A-Mend Collision Center, testified that he fixed Mr. Hernandez's truck by repairing the front door and replacing the back door. He estimated the cost to repair the damage was $4,348.19.

Closing Arguments^[2]

[¶10] The prosecutor in closing explained the elements of property destruction and defacement, talked about the circumstantial evidence, and asked the jury to use their common sense in connecting the circumstances. In his closing argument, defense counsel argued that there was no direct or circumstantial evidence connecting Mr. Ogden to the damage to Mr. Hernandez's truck. Defense counsel emphasized that Mr. Ogden "wasn't walking away with a brick. There was no brick or no cinder block found near the vehicle, and there was never any evidence that [Mr. Ogden] took that alleged cinder block away and hid it from the police." On rebuttal, the prosecutor responded:

Now, you have heard a couple of things that aren't necessarily accurate. You heard that the defendant was walking across the street, which is not what you were told. Mr. Hernandez said he saw him walking away from my truck. He didn't say he wasn't carrying a cinder block. He said, I couldn't tell because his back was to me.

That is where you use your common sense and think about how you might carry a cinder block and whether or not you can see it from behind someone.

(Emphasis added.) Defense counsel did not object to the prosecutor's rebuttal statement.

[¶11] The jury found Mr. Ogden guilty of felony property destruction and defacement. The district court sentenced him to twelve to fourteen months of incarceration but suspended his sentence in favor of two years of unsupervised probation. Mr. Ogden appeals, arguing there was insufficient evidence to support his conviction, and the prosecutor's statement made during rebuttal closing argument amounted to misconduct.

DISCUSSION

I. There was sufficient evidence to support Mr. Ogden's conviction for felony property destruction and defacement.

[¶12] We first address Mr. Ogden's argument that there was insufficient evidence to support his conviction.

A. Standard of Review

[¶13] When reviewing a claim for sufficiency of the evidence "we determine whether a jury could have reasonably concluded each of the elements of the crime was proven beyond a reasonable doubt." Roman v. State, 2022 WY 48, ¶ 9, 507 P.3d 453, 456 (Wyo. 2022) (quoting Regan v. State, 2015 WY 62, ¶ 10, 350 P.3d 702, 705 (Wyo. 2015)). "We 'examine[] the evidence in the light most favorable to the State.'" Barrett v. State, 2022 WY 64, ¶ 20, 509 P.3d 940, 945 (Wyo. 2022) (quoting Cotney v. State, 2022 WY 17, ¶ 9, 503 P.3d 58, 63 (Wyo. 2022)). "We accept all evidence favorable to the State as true and give the State's evidence every favorable inference which can reasonably and fairly be drawn from it." Id. (quoting Cotney, ¶ 9, 503 P.3d at 63). "We also disregard any evidence favorable to the appellant that conflicts with the State's evidence." Id. (quoting Cotney, ¶ 9, 503 P.3d at 63). "We do not reweigh the evidence or reexamine the credibility of the witnesses." Latham v. State, 2021 WY 29, ¶ 6, 480 P.3d 527, 530 (Wyo. 2021) (quoting Armajo v. State, 2020 WY 153, ¶ 21, 478 P.3d 184, 191 (Wyo. 2020)).

B. Analysis

[¶14] Mr. Ogden argues he was wrongfully convicted of felony property destruction and defacement under Wyo. Stat. Ann. § 6-3-201.^[3] He relies on Mraz v. State, 2014 WY 73, 326 P.3d 931 (Wyo. 2014) to support his contention.

[¶15] In Mraz, Ms. Mraz was convicted of larceny. Mraz, ¶¶ 3, 9, 326 P.3d at 932, 934. Ms. Mraz, a bartender at the Eagles Club in Sheridan, Wyoming, reported to the police that when she arrived at work around 10:55 a.m. someone had come "from behind and pushed her head against the wall." Id. ¶ 3, 326 P.3d at 932. She said she did not see the person but believed he or she fled out the door. Id. She reported that after the incident, she went downstairs where the safe was located and found money bags, register tills, and a petty cash box missing from the safe. Id.

[¶16] The evidence showed that Ms. Mraz lied about when she arrived at work that morning. Id. ¶ 4, 326 P.3d at 932 "Ms. Mraz's access code had been used to turn...