Pearson v. State, 99-280.
| Decision Date | 23 October 2000 |
| Docket Number | No. 99-280.,99-280. |
| Citation | 12 P.3d 686 |
| Parties | James Edward PEARSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Representing Appellant: Michael D. Zwickl of Beech Street Law Office, Casper, Wyoming.
Representing Appellee: Gay Woodhouse, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Kimberly A. Baker, Senior Assistant Attorney General, Cheyenne, Wyoming.
Before LEHMAN, C.J., and THOMAS, MACY,1 GOLDEN, and HILL, JJ.
James Edward Pearson's (Pearson) major contention is that he was entitled to have his proffered jury instruction on a lesser-included offense given to the jury, and the trial court erred in failing to give it. Pearson was convicted of one count of delivery of a controlled substance in violation of Wyo.Stat. Ann § 35-7-1031(a) (Lexis 1999).2 The instruction that Pearson requested, and which the trial court refused to give, was an instruction on the lesser-included offense of possession of a controlled substance. Pearson also asserts additional issues regarding the admission of testimony about prior uncharged offenses, ineffective assistance of counsel, and cumulative error. The record, as compared to the applicable rules of law, supports none of Pearson's claims of error. The Judgment and Sentence entered in the trial court is affirmed.
This statement of the issues is found in Pearson's brief:
ISSUE I
Did the trial court deny the Appellant his constitutional right to a fair trial when it refused to give Appellant's lesser-included instruction on possession of a controlled substance?
ISSUE II
The State presents this statement of the issues:
On September 1, 1998, agents of the Wyoming Division of Criminal Investigation (DCI) initiated a controlled purchase of methamphetamine from Pearson. For this purpose, they invoked the services of a confidential informant, who had been arrested and had entered a plea of guilty to possession of methamphetamine. The informant was cooperating with the DCI agents as part of a bargain for reduction of the charges against her. The DCI agents met with the informant at her residence, and they drove her to the DCI office, where she was searched, fitted with a microphone, and given five prerecorded twenty dollar bills. One of the DCI agents then took the informant by automobile to Pearson's neighborhood, and dropped her off near Pearson's home.
Pearson admitted the informant when she knocked on his door, and she told him she was "just looking for something." She asked if he had anything, meaning methamphetamine, and Pearson responded by an inquiry as to whether she had seen any of the "pink stuff." After a brief discussion, the informant asked if he would let her try some of that, but he stated he did not have any more. Pearson then told the informant he had some other methamphetamine. Following some other brief dialogue, the informant prepared to leave, but Pearson asked her to "hang out" and visit with him for a few minutes. Pearson then went into his bedroom, and returned with some methamphetamine, which he poured into a plastic bag. He rolled up the bag, and handed it to the informant who asked how much she owed him, and Pearson indicated forty dollars. The informant then gave him two of the marked twenty dollar bills and left the house.
The informant then turned over to the DCI agents the drugs, which she had purchased. When Pearson was arrested, the two pre-recorded twenty dollar bills were found in his wallet. Pearson protested his innocence to the DCI agents, but to no avail.
Pearson then was charged with one count of delivery of a controlled substance, methamphetamine, in violation of Wyo.Stat.Ann § 35-7-1031(a), and his case went to trial on April 19, 1999. Witnesses for the prosecution included the confidential informant and the two DCI agents. The jury found Pearson guilty, and he was then sentenced by the trial court to imprisonment in the Wyoming State Penitentiary for a term of not less than six years and no more than ten years. Pearson has appealed the Judgment and Sentence to this Court.
Pearson's first issue sets forth his contention that error was committed by the trial court when his proffered instruction to the jury on the lesser included offense of possession of a controlled substance was not given. It is essential to the preservation for appeal of the refusal of a proposed instruction on a lesser included offense that the party present the instruction "in writing with appropriate argument to inform the trial court of the nature and grounds for the instruction on the lesser included offense." State v. Keffer, 860 P.2d 1118, 1137 (Wyo. 1993). Pearson clearly complied with this requirement, and the State does not argue otherwise.
When a proposed instruction on a lesser included offense is refused, we have advised:
The trial judge must first determine if all the elements of the lesser offense are found within the greater; and, if so, is there some evidence that would rationally permit the jury to find the accused guilty of the lesser and not guilty of the greater offense. If such evidence is present, the instruction should be given.
Keffer, 860 P.2d at 1140 (Cardine, J., concurring). See also Paramo v. State, 896 P.2d 1342, 1344 (Wyo.1995)
( ).
The State also agrees with Pearson that the elements of possession of a controlled substance are found within the offense of delivery of a controlled substance. We have articulated that proposition in Nava v. State, 904 P.2d 364, 367 (Wyo.1995). The elements aspect of the Keffer test is satisfied in this instance.
The focal point of Pearson's appeal then becomes the presence of evidence to satisfy the second part of the Keffer test. We have scrutinized the record for evidence that rationally would support a conclusion that Pearson was guilty of possession, but not guilty of delivery. Pearson's argument is that the jury reasonably could have determined that he possessed, but did not sell, methamphetamine. The theory he presents here is that the methamphetamine that was found upon search of his home was only for his personal use, and he did not sell any methamphetamine to the informant. He contends that the informant must have secreted some methamphetamine on her person, or at some location near his home, and that is what she turned over to the DCI agents, claiming that she had purchased it from him. His explanation of the two pre-recorded twenty-dollar bills the informant gave him is that this was payment for a pre-existing debt.
It is clear that the second aspect of the Keffer test depends upon evidence and not the defendant's theory or speculation about what might have happened. The evidence in this case does not reasonably support any conclusion that Pearson was guilty of possession, but was not guilty of delivery. The record discloses that the informant had only about one hour between the time the DCI agent called her to arrange the controlled drug purchase and the time that he arrived at her home. Before going to Pearson's residence, she was searched by a nurse with twenty-two years of law enforcement experience. The nurse testified that she was satisfied the informant had no controlled substances on her person.
After the purchase, the informant described to the DCI agents the pink plastic bag in which the drugs were found in Pearson's bedroom. If Pearson had possessed the methamphetamine only for his personal use, the informant would not have had any opportunity to see it, because Pearson's own statement to the officers was that she never entered the bedroom. Further, Pearson's trial theory that the informant planted the drugs in his bedroom because she was seeking revenge, if accepted, would result in his acquittal of both possession and delivery. We are satisfied there is no evidence in this record that would serve to support the instruction on the lesser included offense of possession. The trial court did not err in denying the requested instruction.
Pearson then attacks his conviction arguing that the trial court admitted what Pearson characterizes as W.R.E. 404(b)3 character evidence. Pearson asserts that three prosecution witnesses testified that prior to the charged offense, he had sold methamphetamine to the informant. The three witnesses about whom Pearson complains were the informant and the two DCI agents. The testimony of the informant that Pearson relies upon consists of two colloquies occurring on direct examination. The first exchange of questions and answers is:
The second exchange upon which Pearson relies reflects the following:
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