Pena v. State

• Decision Date: 24 November 2015
• Docket Number: Nos. S–15–0054,S–15–0055.,s. S–15–0054
• Citation: 361 P.3d 862,2015 WY 149
• Parties: Carlos Yammon PENA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). Carlos Yammon Pena, Appellant (Defendant), v. The State of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

361 P.3d 862

2015 WY 149

Carlos Yammon PENA, Appellant (Defendant),

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

Carlos Yammon Pena, Appellant (Defendant),

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

Nos. S–15–0054

S–15–0055.

Supreme Court of Wyoming.

Nov. 24, 2015.

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; and David E. Westling, Senior Assistant Appellate Counsel. Argument by Mr. Westling.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; and Joshua C. Eames, Assistant Attorney General. Argument by Ms. Craig.

Opinion

HILL, Justice.

[¶ 1] After a jury convicted Carlos Peña of larceny, the district court revoked his probation from a previous case. In this consolidated appeal, Mr. Peña argues that his probation from the previous case should not have been revoked while the instant case was still pending appeal. Regarding the instant larceny case, Mr. Peña argues that during trial, the district court should not have allowed a jury instruction that improperly shifted the burden of proof to Mr. Peña and asserts that there was insufficient evidence to convict him in that there was no evidence that he moved or carried away the stolen items.

[¶ 2] We will affirm both the probation revocation and the judgment and sentence on the larceny conviction.

ISSUES

[¶ 3] S–15–0054 issue:

Was a probation revocation based solely on a conviction on a criminal case under appeal appropriate?

S–15–0055 issues:

1. The Court abused its discretion by allowing instruction No. 11, which improperly shifts the burden of proof to the defendant and obviates the need to prove a crucial element of the crime charged.

2. There was insufficient evidence to convict Mr. Peña of larceny in that there was no evidence that he actually moved or carried away the stolen goods.

FACTS

[¶ 4] In December of 2011, Carlos Y. Peña was sentenced to two and a half to three years in prison for larceny. Mr. Peña completed the Youthful Offender Treatment Program and in July of 2012, the district court suspended the remainder of his sentence and imposed three years of supervised probation.

[¶ 5] Fast forward to April 3, 2013, when Sheridan business owner Steven Bush discovered that his flatbed trailer and mini-excavator were missing. In early May, Bush and his brother-in-law discovered a Craigslist ad for a mini excavator. The men called the number in the ad and met the seller, Carlos Peña. Mr. Peña took the men to look at the excavator and immediately upon their arrival, Bush noticed his stolen flatbed trailer and excavator. The excavator that Mr. Peña listed for sale on Craigslist was Bush's excavator. Bush immediately contacted the Sheridan County Sheriff's Office.

[¶ 6] After the tip from Bush, deputies from the sheriff's office paid Mr. Peña a visit. He told the deputies that the excavator belonged to his mother and father-in-law and that he had authority to sell it. The license plate and VIN number from the excavator showed that it was stolen and belonged to Bush's company, Westin Mechanical. After further investigation, the State charged Mr. Peña with one count of larceny. The case went to trial and the jury convicted Mr. Peña.

[¶ 7] On September 26, 2014, the State moved to revoke Mr. Peña's probation from his 2011 case based on his new conviction. The district court found that he violated his probation. His probation was then revoked and the remainder of his sentence was re-imposed. Mr. Peña was granted 304 days for time served.

[¶ 8] Both cases were properly appealed to this Court.

DISCUSSION

Jury Instruction No. 11/Burden Shifting

[¶ 9] Mr. Peña first contends that the district court abused its discretion when it provided the jury with an instruction that stated the possession of recently stolen property, when supported by slight corroborative evidence, may support the inference that the possessor participated in the theft. Mr. Peña claims that this type of instruction is only appropriate in possession of stolen property cases, not cases alleging theft. We disagree.

[¶ 10] With regard to this Court's review of jury instructions, we have stated:

When we review claims of error involving jury instructions, the district court is afforded significant deference. Luedtke v. State,2005 WY 98, ¶ 28, 117 P.3d 1227, 1232 (Wyo.2005). A district court is “given wide latitude in instructing the jury and, as long as the instructions correctly state the law and the entire charge covers the relevant issue, reversible error will not be found.” Id.(citations omitted); see also Hawes v. State,2014 WY 127, ¶ 15, 335 P.3d 1073, 1078 (Wyo.2014). Its ruling on an instruction must be prejudicial to constitute reversible error. Heywood v. State,2007 WY 149, ¶ 26, 170 P.3d 1227, 1234 (Wyo.2007)(citation omitted), abrogated on other grounds by Granzer v. State,2008 WY 118, 193 P.3d 266 (Wyo.2008). Because the purpose of jury instructions is to provide guidance on the applicable law, prejudice will result when the instructions confuse or mislead the jury. Id.

Brown v. State,2015 WY 4, ¶ 40, 340 P.3d 1020, 1031 (Wyo.2015).

Stocki v. Nunn,2015 WY 75, ¶ 21, 351 P.3d 911, 917–918 (Wyo.2015).

[¶ 11] The offered, and accepted, instruction in this case read as follows (emphasis added):

Possession of recently stolen property is not of itselfsufficient to permit a finding that the Defendant is guilty of the crime here charged. However, possession of recently stolen property, if not satisfactorily explained is ordinarily a circumstance from which the jury may reasonably draw the inference and find, in the light of surrounding circumstances shown by the evidence in the case, that the person in possession knew the property had been stolen, and is also a circumstance from which the jury may reasonably draw the inference that the person in possession not only knew it was stolen property, but also participated in some way in the theft of the property.

However, you are never required to make this inference. It is the exclusive province of the jury to determine whether the facts and circumstances shown by the evidence in this case warrant any inference which the law permits the jury to draw from the possession of stolen property.

Although possession is a strong circumstance tending to show guilt, there must be corroborative evidence tending to prove the Defendant's guilt of each charge. However, this corroborative evidence need only be slight and may include: whether the Defendant had the opportunity to commit the crime charged, his conduct, his false or contradictory statements, if any, or other statements he may have made with respect to the property and any other evidence which tends to connect him with the crime.

If you find beyond a reasonable doubt from the evidence that the property was stolen and that, while recently stolen, the property was in the possession of the Defendant, you may, from those facts, draw the inference that the property was possessed by the Defendant with knowledge that it was stolen, but also that the Defendant participated in some way in the theft, unless such possession by the Defendant is explained to the satisfaction of the jury by other facts and circumstances in evidence of the case.

In considering whether possession of recently stolen property has been satisfactorily explained, you are reminded that in the exercise of constitutional rights the accused need not take the witness stand and testify.

Possession may be satisfactorily explained through other circumstances, other evidence, independent of any testimony of the accused.

[¶ 12] It is this Court's long-standing precedent that “possession [of recently stolen property] in conjunction with other incriminating circumstances such as misstatement and concealment will support ... a conviction.” Mendicoa v. State,771 P.2d 1240, 1244 (Wyo.1989). Also, we said in McGarvey v. State,2002 WY 149, ¶ 14, 55 P.3d 703, 706 (Wyo.2002):

[T]he possession of stolen goods aloneis not sufficient evidence to convict for burglary.

[King v. State,718 P.2d 452, 453 (Wyo.1986)] (quoting Newell v. State,548 P.2d 8, 13 (Wyo.1976)). However, we have also concluded with regard to burglary that, “ ‘the most significant and material evidence of defendant's guilt is his possession of the stolen property. Possession is a strong circumstance tending to show guilt and only slight corroborative evidence of other inculpatory circumstances is required’ ” to convict. Sutherland v. State,944 P.2d 1157, 1161 (Wyo.1997)(quoting Newell,548 P.2d at 13).

McGarvey,¶ 14, 55 P.3d 703 at 706(emphasis added).

[¶ 13] We reiterated this concept in Budder v. State,2010 WY 123, 238 P.3d 575 (Wyo.2010), where the instruction given there was identical to the instruction given here. This Court held that the instruction was proper in burglary cases. Id.,¶ 9, 238 P.3d at 578(citing Vanvorst v. State,1 P.3d 1223, 1230–31 (Wyo.2000)(approving of identical instruction in possession of stolen property case)). While Mr. Peña would like this Court to make a distinction that the instruction at issue is appropriate in burglary cases but not larceny cases, we decline to do so. Our declination is based upon years of precedent that can be summarized as follows: A defendant's possession of recently stolen property is “strong” evidence that he or she stole it. This is true in both burglary and larceny cases.

[¶ 14] Not only was Mr. Peña in possession of the stolen property, a truck with the same unique tire tracks that were found at the scene was found near the stolen property. Also, Mr. Peña posted a Craigslist ad about the stolen property and he gave contradictory stories about where the property was obtained. Taking all of this into consideration, the jury instruction was supported by the evidence.

Insufficient Evidence

[¶ 15] Mr. Peña argues next on appeal that the State did not meet its burden in establishing the ...