Pote v. State

• Decision Date: 14 February 1985
• Docket Number: No. 83-245,83-245
• Citation: 695 P.2d 617
• Parties: Charles Arthur POTE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 617

695 P.2d 617

Charles Arthur POTE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 83-245.

Supreme Court of Wyoming.

Feb. 14, 1985.

Leonard D. Munker, State Public Defender, Sylvia Lee Hackl, and Martin J. McClain, Appellate Counsels, and Denise Nau, Asst. Appellate Counsel, Wyoming Public Defender Program, Cheyenne, for appellant. Appellant filed a brief pro se.

A.G. McClintock, Atty. Gen., Gerald Stack, Deputy Atty. Gen., Crim. Div., John W. Renneisen, Senior Asst. Atty. Gen., and Michael A. Blonigen, Asst. Atty. Gen., Cheyenne, for appellee.

Before THOMAS, C.J., ROONEY, BROWN and CARDINE, JJ., and HANSCUM, District Judge.

BROWN, Justice.

Appellant Charles Arthur Pote was convicted of numerous crimes by a Park County jury. Criminal activity involving appellant stemmed from a fracas in a Cody bar. The imbroglio involved appellant, his two associates, a barkeep and several bar habitues. One of appellant's companions fired shots at various and sundry people in the bar, resulting in a death. Appellant and his entourage made a retrograde maneuver out of the bar, into a stolen car, thence down the highway whilst shooting and being shot at by law enforcement people.

Appellant's counsel raises seven issues: ¹

I

"Whether the trial court erred in admitting evidence concerning Counts VI and VIII, since said offenses involved thefts which occurred outside the State of Wyoming.

II

"Whether the trial court erred in denying Appellant's motion to sever Counts VI, VII, and VIII and to permit separate trials on such counts.

III

"Whether the trial court erred in denying Appellant's motions for suppression of evidence, dismissal and continuance in light of the prosecution's deliberate failure to preserve evidence and to promptly comply with the pre-trial discovery order.

IV

"Whether the trial court erred in denying Appellant's motion for change of venue, which motion alleged inter alia that extensive pre-trial publicity made it impossible to select a fair and impartial jury in Park County.

V

"Whether the trial court erred in admitting into evidence the testimony of two previously-hypnotized witnesses.

VI

"Whether the trial court erred in not vacating Appellant's habitual criminal 'conviction.'

VII

"Whether the trial court erred in sentencing Appellant to maximum terms and then failing to give Appellant full credit against those maximum terms for all time spent in pre-sentence custody."

Appellant Charles Arthur Pote, Connie Zierke Pote and Steve Alloway, with guns in their possession, drove into Cody, Wyoming, in a Plymouth Reliant. At trial there was evidence that appellant had been involved in the theft of the automobile and the guns in Oregon and Washington in the middle of April, 1983.

Early in the morning of April 26, 1983, appellant and his two associates entered the Silver Dollar Bar in Cody. Pote and Alloway became involved in an exchange of pleasantries with local frequenters of the saloon. An angry dispute escalated; thereupon appellant and Alloway exhibited guns. Appellant and his two companions retired from the bar while Alloway fired numerous shots, and appellant, with weapon drawn, menaced people in the bar. Ron Jensen was shot and killed by one of appellant's companions. Connie Pote and Alloway rode as passengers, and appellant drove the Plymouth Reliant in a westerly direction with police officers in pursuit. Numerous shots were fired from both sides of the Pote vehicle, eventually disabling the police automobile. Appellant and his people proceeded west of Cody and entered a cabin owned by Evelyn Lewis. Later appellant and his companions surrendered to the Cody police department and the Park County sheriff's office. The police officers found four guns inside the Lewis cabin, and the Plymouth Reliant automobile, which was concealed near the cabin.

Appellant was initially charged with seven felonies as follows:

Count I: Aiding and abetting the second-degree murder of Ron Jensen, § 6-4-104, W.S.1977.

Count II: Aiding and abetting the attempted second-degree murder of Robert Ellis, § 6-4-104, W.S.1977.

Count III: Unlawful possession of a dangerous weapon with intent to threaten Daniel Brasher, § 6-11-101, W.S.1977.

Count IV: Aggravated assault and battery with a dangerous weapon upon the patrons and bartender of the Silver Dollar Bar, § 6-4-506(b), W.S.1977.

Count V: Attempted first-degree murder of Cody police officer Stan Peglow, § 6-4-101, W.S.1977.

Count VI: Concealing stolen goods, § 6-7-304, W.S.1977.

Count VII: Burglary, § 6-7-201, W.S.1977.

An amended complaint charged two additional crimes. Count VIII charged appellant with a second count of concealing stolen goods; and Count IX alleged that appellant was an habitual criminal, as defined in § 6-1-109, W.S.1977. Appellant was bound over to the district court on all nine counts and an information was filed accordingly.

The jury found appellant guilty as charged on Counts I, II, III, V, VI and VIII, and guilty of the lesser offense of criminal trespass on Count VII. Count IV was dismissed during the trial. The jury heard evidence on Count IX, the habitual criminal allegation. The jury found that appellant was an habitual criminal in light of his two previous felony convictions.

Appellant was sentenced as follows:

Count I, aiding and abetting second-degree murder, in violation of § 6-4-104, W.S.1977. Count II, aiding and abetting attempted second-degree murder, in violation of § 6-4-104, W.S.1977. Count III, unlawful possession of deadly weapon with intent to threaten, in violation of § 6-1-101, W.S.1977, a single sentence of life imprisonment at the Wyoming State Penitentiary, with eligibility for parole after serving twenty-five years and a fine of $1,000.

Count V, attempted first-degree murder of a police officer, in violation of § 6-4-101, W.S.1977, a sentence of life imprisonment without parole, such sentence to be served consecutive to the sentence imposed on Counts I, II and III, and a fine of $1,000.

Count VI, concealing stolen goods, in violation of § 6-7-304, W.S.1977. Count VIII, concealing stolen goods, in violation of § 6-7-304, W.S.1977, a single sentence of ten years at the Wyoming State Penitentiary, with eligibility for parole after having served seven years and six months, said sentence to be served consecutive to the sentences previously imposed, and a fine of $1,000.

Count VII, criminal trespass, a sentence of three months in the Park County jail in Cody, Wyoming, and a fine of $750. Appellant received 92 days credit against this sentence.

Appellant was also given sixty-five days credit "against all the minimum and against the fixed period maximum sentences" imposed on the felony counts. The court also ordered appellant to reimburse the state for his attorneys' and investigators' fees, and to work off any unpaid fines by serving additional time in prison "at the statutory rate."

I

In the first issue on appeal appellant contends "that it was error for the court to admit evidence relating to the out-of-state theft offenses, and that his convictions on Counts VI (automobile) and VIII (guns) are improper."

Appellant was charged with two counts of concealing stolen property defined in § 6-7-304, W.S.1977:

"Whoever buys, receives, conceals or aids in the concealment of anything of value, which has been stolen, embezzled or obtained by false pretense, knowing the same to have been stolen, embezzled or obtained by false pretense, shall, if the goods are of the value of one hundred dollars ($100.00) or upwards, suffer the punishment prescribed for grand larceny, and if the goods are worth less than one hundred dollars ($100.00), shall suffer the punishment prescribed for petit larceny."

The trial court instructed the jury that the elements of the offense charged in Count VI of the information were:

"1. That the defendant, Charles Arthur Pote

"2. concealed, or aided in the concealment

"3. of property having a value greater than $3,000, particularly a brown Plymouth Reliant automobile,

"4. which had been stolen,

"5. knowing the same to have been stolen;

"6. all in Park County, Wyoming,

"7. on April 26, 1983."

The court's instruction on the elements of the offenses charged in Count VIII of the information were identical to the charge on Count VI except element No. 3 made reference to the guns. Under the instructions of the court the state was required to prove that the automobile and guns were stolen. Furthermore, the state had the burden to prove that appellant knew that these items had been stolen. The strongest possible evidence to prove that the automobile and guns were stolen was to show that appellant was involved in the thefts. Therefore, evidence of out-of-state thefts was highly relevant, and it was not error to admit such into evidence. There is no merit to appellant's objection to evidence related to out-of-state thefts.

In both Count VI (automobile) and Count VIII (guns) of the information, appellant was charged in the language of the statute, that is, (appellant) "did * * * receive, conceal or aid in the concealment. * * * " (Emphasis added.)

Appellant cites considerable authority to the effect that a thief cannot be convicted of receiving property that he had initially stolen. This may be correct, but the state's case against appellant in Counts VI and VIII is concealment of a stolen automobile and guns, not receiving stolen property. The state's focus on concealment is evident from the bill of particulars, opening statement, proofs and instructions to the jury.

Appellant does not contend that a perpetrator of larceny cannot also be convicted of concealing the property he stole. In fact appellant cites us cases in support of a thief being convicted of concealing property that he stole. State v. Para, 120 Ariz. 26, 583 P.2d 1346 (1978); Sutton v. Commonwealth, Ky., 623 S.W.2d 879 (1981); State v. McPherson, 250 Or. 601, 444 P.2d 5 (1968). In Tageant v. State, Wyo., 673...