Oldman v. State

• Decision Date: 15 September 2015
• Docket Number: No. S–15–0002.,S–15–0002.
• Citation: 359 P.3d 964,2015 WY 121
• Parties: Curtis Russell OLDMAN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

359 P.3d 964

2015 WY 121

Curtis Russell OLDMAN, Appellant (Defendant)

v.The STATE of Wyoming, Appellee (Plaintiff).

No. S–15–0002.

Supreme Court of Wyoming.

Sept. 15, 2015.

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel. Argument by Mr. Alden.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Joshua C. Eames, Assistant Attorney General; Lisa Marie Jerde Spillman, Assistant Attorney General; Darrell D. Jackson, Faculty Director, A. Walker Steinhage, Student Director, and Geoffrey T. Cunningham, Student Intern, of the Prosecution Assistance Program. Argument by Lisa Marie Jerde Spillman.

Before BURKE, C.J., and DAVIS, FOX, JJ., and GOLDEN, J., (Ret.), and KAUTZ, D.J.^*

Opinion

GOLDEN, Justice (Ret.).

[¶ 1] A jury found Curtis Russell Oldman guilty of conspiracy to commit robbery. Mr. Oldman has appealed that conviction, claiming the State failed to present sufficient evidence of that conspiracy and the State engaged in prosecutorial misconduct in both its opening statement and closing argument by misleading the jury by using the phrase “if he was there, he was aware” to suggest that Mr. Oldman's mere presence at the scene of the robbery was sufficient evidence to prove the “agreement” element of the crime of conspiracy. As we shall explain in the following discussion, we find no error and affirm Mr. Oldman's conviction and sentence.

ISSUES

[¶ 2] Mr. Oldman presents these issues for our consideration:

I. Was sufficient evidence presented to support a conspiracy conviction?

II. Did the prosecutors commit misconduct?

DISCUSSION

I. Sufficiency of the Evidence

[¶ 3] Mr. Oldman and the State inform us that the only issue at trial was whether 27–year–old Mr. Oldman conspired with his 16–year–old brother, A.S., to commit robbery. There is no question that A.S. committed the robbery of the victim shortly after 4:30 p.m., November 10, 2013, in the parking lot at the Walmart store in Riverton, Wyoming. The only issue at trial was whether Mr. Oldman conspired with A.S., as that term is understood in Wyoming criminal law. Our conspiracy statute provides that a person is guilty of conspiracy to commit a crime if he agrees with another person that one of them will commit a crime and one of them does an overt act to effect the objective of the agreement. Wyo. Stat. Ann. § 6–1–303(a) (LexisNexis 2015).

[¶ 4] In Remmick v. State, 2012 WY 57, 275 P.3d 467 (Wyo.2012), we stated:

For a conspiracy conviction to be sustained, “the evidence must show beyond a reasonable doubt that the parties to the conspiracy voluntarily agreed to commit an offense.” Martinez v. State, 943 P.2d 1178, 1183 (Wyo.1997).

In Smith v. State, 902 P.2d 1271 (Wyo.1995), we considered what type of agreement was necessary for a conspiracy to exist.

“One might suppose that the agreement necessary for conspiracy is essentially like the agreement or ‘meeting of the minds' which is critical to a contract, but this is not the case. Although there continues to exist some uncertainty as to the precise meaning of the word in the context of conspiracy, it is clear that the definition in this setting is somewhat more lax than elsewhere. A mere tacit understanding will suffice, and there need not be any written statement or even a speaking of words which expressly communicates agreement....

Because most conspiracies are clandestine in nature, the prosec[u]tion is seldom able to present direct evidence of the agreement. Courts have been sympathetic to this problem, and it is thus well established that the prosecution may ‘rely on inferences drawn from the course of conduct of the alleged conspirators.’ ”

902 P.2d at 1281–82 (quoting WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., CRIMINAL LAW at 460–61 (1972)).

Martinez, 943 P.2d at 1183.

Remmick, ¶ 30, 275 P.3d at 473.

[¶ 5] To determine the sufficiency of the evidence proving the agreement between Mr. Oldman and A.S., his younger brother, we apply the appropriate standard of review:

Our standard of review is simple and established when a determination is challenged on the basis of the sufficiency of the evidence. We examine whether the evidence most favorable to the State is sufficient to infer reasonably that a statute was violated as charged. See Mendicoa v. State, 771 P.2d 1240, 1243 (Wyo.1989) ; Seeley v. State, 715 P.2d 232, 240–41 (Wyo.1986) ; Chavez v. State, 601 P.2d 166 (Wyo.1979) ; and Cheng v. Com., 240 Va. 26, 393 S.E.2d 599, 608 (1990). Our examination involves a two stage process.

When examining if the verdict is supported by sufficient evidence, we review the record to examine “all the evidence in the light most favorable to the [s]tate * * *.” Mendicoa, 771 P.2d at 1243. We examine the evidence from this perspective because we defer to the jury as the fact-finder and assume they believed only the evidence adverse to the defendant since they found the defendant guilty beyond a reasonable doubt. We are aware the defendant's version argued for a finding of “not guilty” while the prosecutor's version argued for a finding of “guilty.” Had the jury found the defendant's version credible, they would be bound to harbor reasonable doubt against the prosecutor's claim that the defendant was guilty. But they did not find the defendant's version credible and therefore found him guilty beyond a reasonable doubt. We do not ask if “ ‘the evidence establishes guilt beyond a reasonable doubt for us * * *,’ ” Id. at 1243 (quoting Broom v. State, 695 P.2d 640, 642 (Wyo.1985) ), because the answer to that question would require this court to weigh the evidence and determine who was most credible. That determination simply is not a function of this court. “[W]e are not to reweigh the evidence.” Broom, 695 P.2d at 641.

Second, after drawing into the open only the evidence adverse to the defendant, we examine whether that evidence permits the jury's inference that the defendant violated the elements of the statute as charged. Our focus is singular and only examines the reasonableness of the inference from premises admittedly adverse to the defendant. See Broom, 695 P.2d at 642.

Rathbun v. State, 802 P.2d 881, 882–83 (Wyo.1990) (emphasis in original); accord Remmick, ¶ 24, 275 P.3d at 472.

[¶ 6] Our careful examination of the trial transcript reveals the following evidence most favorable to the State and adverse to Mr. Oldman:

1. On the afternoon of November 10, 2013, Tiesha Underwood was driving her mother's silver two-door Monte Carlo with her young sister, S.U., as a passenger. They picked up Tiesha Underwood's boyfriend of almost eight years, Mr. Oldman, age 27, and his younger brother, A.S., age 16, at Mr. Oldman's mother's trailer on 17 Mile Road.

2. When Tiesha Underwood picked them up at that trailer, A.S. had two guns with him when he got into the Monte Carlo.

3. The four of them drove to Game Stop in Riverton to sell or pawn some iPods to get some money. Mr. Oldman's brother, A.S., went into Game Stop first with the iPods and then returned to the car and told Mr. Oldman that Game Stop would only give them a couple of dollars for the iPods. Mr. Oldman then went into Game Stop to retrieve the iPods and then returned to the car.

4. When Mr. Oldman returned to the car, he said, “Damn, what do we do now.”

5. In Tiesha Underwood's interview with Detective Todd Byerly on November 11, 2013, the day after the robbery when she was in the detention center in Lander, when asked, “When you left Game Stop, what was your plan at Walmart? What was talked about from leaving Game Stop?”, she replied, “[A.S.] was just going to go grab a purse or something while we take off. Whatever.”

6. As they drove the two blocks from Game Stop to the Walmart parking area, Ms. Underwood was the driver, Mr. Oldman was in the front passenger seat, and A.S. and S.U. were in the back seat.

7. When they arrived at the Walmart parking area, they drove around various locations while looking for a parking space in the north area of the parking lot near the entry/exit of the Walmart grocery.

8. Walmart had three surveillance video cameras which filmed the actions of Mr. Oldman, A.S., and Tiesha Underwood as they drove around the parking lot and then parked at a spot near the grocery entrance/exit in the area where the robbery occurred.

9. As the jury watched the video film captured on Walmart's surveillance cameras, Detective Todd Byerly described to the jury the actions of Mr. Oldman and A.S. shown by that film. The State's prosecutors and Mr. Oldman's defense counsel stipulated that the two persons shown on the film were Mr. Oldman and A.S.

10. Detective Byerly's description of the actions of Mr. Oldman and A.S. was as follows:

—at 4:31:27 seconds, the Monte Carlo is visible.

—at 4:32:01 seconds, a male subject has exited the car's passenger side.

—at 4:32:09 seconds, Mr. Oldman and A.S. are standing outside the car.

—between 4:32:09 seconds and 4:33:06 seconds, one of the subjects appears “to get inside the car, lean into the car ... it does appear he leans into the vehicle for something.”

—at 4:32:21 seconds, both men are standing outside the car and “it appears that [they] are having a conversation or actively engaging in something between the two of them.”—at 4:33:06 seconds, Mr. Oldman and A.S. are standing outside the car and the robbery victim is now visible.

—at 4:33:15 seconds, the robbery victim is visible and is pushing a grocery cart and holding her purse as she walks toward her car.

—at 4:33:15 seconds, Mr. Oldman is standing at the Monte Carlo's passenger side door area, and A.S. is moving abruptly towards the robbery victim as she is approaching her car. Mr. Oldman watches A.S. for twelve seconds as A.S. walks toward the robbery victim.

—at 4:33:33 seconds, A.S. is walking toward the robbery victim.

—at 4:33:40 seconds, the robbery victim is

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