Ogden v. State

• Citation: 516 P.3d 870
• Decision Date: 13 September 2022
• Docket Number: S-22-0024
• Parties: William E. OGDEN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

516 P.3d 870

William E. OGDEN, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).

S-22-0024

Supreme Court of Wyoming.

September 13, 2022

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 outside¹ and saw that the

[516 P.3d 873

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...