Stapleman v. State, No. 83-142

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBefore ROONEY; CARDINE; ROONEY
Citation680 P.2d 73
PartiesDennis STAPLEMAN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
Decision Date20 April 1984
Docket NumberNo. 83-142

Page 73

680 P.2d 73
Dennis STAPLEMAN, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).
No. 83-142.
Supreme Court of Wyoming.
April 20, 1984.
Rehearing Denied May 22, 1984.

Page 74

Leonard D. Munker, State Public Defender; Sylvia Lee Hackl, Cheyenne, Appellate Counsel; Gerald M. Gallivan, Director, Wyoming Defender Aid Program, Laramie, and Mark K. Workman, Student Intern (argued), for appellant.

A.G. McClintock, Atty. Gen.; Gerald A. Stack, Deputy Atty. Gen.; John W. Renneisen, Senior Asst. Atty. Gen.; and Michael A. Blonigen, Asst. Atty. Gen. (argued), for appellee.

Before ROONEY, C.J., and THOMAS, ROSE, BROWN, and CARDINE, JJ.

CARDINE, Justice.

Appellant was charged in a two-count information with aggravated assault with a dangerous weapon and conversion by a bailee. He was acquitted of the aggravated assault charge but was found guilty of conversion by a bailee. He appeals from the conviction. We will reverse.

The only issue presented on appeal is:

"Whether the trial court erred in failing to instruct the jury on the offered defense instruction resulting in a denial of appellant's due process rights under the Fourteenth Amendment to the United States Constitution."

Appellant had been involved in a business relationship with Black Hills Trucking from January of 1981 until May of 1982. Appellant obtained a trailer from Black Hills Trucking to make a scheduled run in mid April 1982, but this run never materialized. Appellant remained in possession of the trailer from April until July 15, 1982. During this time, appellant was having difficulty collecting money owed to him by Black Hills Trucking. This problem was partially responsible for the termination of the business relationship. In April, appellant stated that he ought to hold the trailer until Black Hills Trucking paid him. During the months of May and June, appellant testified that he forgot he had the trailer. He owned approximately two and a half acres of land on which were parked several trucks and trailers, including the Black Hills trailer. Sometime in July, an employee of Black Hills Trucking noticed the trailer. On July 15, 1982, Black Hills Trucking sent an employee out to pick up the trailer. At that time, appellant rushed out with a gun and informed the employee that he would get the trailer when he received his money. The employee left. Shortly thereafter the Natrona County Sheriff's office was called to reclaim the trailer for Black Hills Trucking. Appellant was then charged with violation of § 6-7-303, W.S.1977, which provided in part:

"If any bailee by finding or otherwise, of any * * * goods or chattels, shall convert the same to his or her own use, with intent to steal the same, he shall be deemed guilty of larceny * * *." (Emphasis supplied.)

The case was tried to a jury. Appellant's theory of defense was that he lacked the necessary specific intent to steal the trailer. Appellant submitted the following instruction:

"A defense to larceny by bailee is the taking possession of property to secure payment of a claim."

This instruction was refused.

Larceny by bailee is not a common-law offense but an offense created by statute, 52A C.J.S. Larceny § 45. The Wyoming statute creating this offense, § 6-7-303, W.S.1977, supra, provides that once the elements of unlawful conversion by bailee have been established, the offender is "deemed guilty of larceny."

Both larceny and larceny by bailee require the same "intent to steal" as an essential element of the crime, Neel v. State, Wyo., 452 P.2d 203 (1969); § 6-7-303, W.S.1977, supra, and the circumstances in which it has been held that the required intent was not present are generally the same for larceny as for larceny by bailee.

Page 75

There are three elements which must be established to sustain a conviction of larceny by bailee: (1) goods received lawfully by a bailee; (2) thereafter conversion of the goods; (3) with an intent to steal the same, § 6-7-303, W.S.1977, supra; Epperson v. State, Wyo., 600 P.2d 1051, 1052 (1979); Morrow v. State, 146 Neb. 601, 20 N.W.2d 602 (1945).

Conversion of property by a bailee may be committed " * * * by refusing to redeliver to the bailor at the expiration or completion of the bailment." 8 C.J.S. Bailments § 31.

A conversion can occur without "intent to steal" as where possession of property is retained because of ignorance, mistake of fact, if reasonable, or bona fide but erroneous claim of right, although such error is one of law. 50 Am.Jur.2d Larceny § 41.

Appellant contends that the instructions which were given did not affirmatively present his defense that he did not possess intent to steal.

" * * * It may be said that when the defendant proves facts or circumstances to excuse his acts which otherwise would be a crime, or when the specific issue is one of criminal intent, ordinarily an affirmative instruction should be given. * * * " Vinson v. Commonwealth, Ky.App., 248 S.W.2d 430, 433 (1952).

When an instruction has been offered presenting the defendant's theory of defense, that instruction or a similar instruction must be presented to the jury if it is supported by competent evidence. Goodman v. State, Wyo., 573 P.2d 400 (1977); Blakely v. State, Wyo., 474 P.2d 127 (1970). It is the duty of the court to present to the jury the theory of the defense in his instructions when requested by the defendant. State v. Hickenbottom, 63 Wyo. 41, 178 P.2d 119 (1947); Jackson v. State, Wyo., 624 P.2d 751 (1981). Therefore, we must look at the record to see if there was competent evidence requiring an affirmative presentation of defendant's theory, i.e., that he did not possess the specific intent to steal necessary to the conviction.

In reviewing the evidence, we adhere to the following standard:

" ' * * * For the purpose of determining whether an instruction in favor of accused should be given, the court must view the evidence in a light as favorable to him as is justifiable, and accused's testimony must be taken as entirely true.' " Goodman v. State, supra, at 409 quoting from 23A C.J.S. Criminal Law § 1313.

There was testimony that appellant had told one of his drivers in mid April that he would retain possession of the trailer until Black Hills Trucking paid him. Appellant also testified that when the Black Hills Trucking employee came to get the trailer, he told him to get off his property and go tell Mr. Collins, the boss, that "when he brings me the money he owes me, he can have his trailer." This testimony was corroborated by the employee. Appellant had contacted an attorney who advised that he should place a lien on the trailer. Appellant's wife...

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22 practice notes
  • Virgilio v. State, No. 90-209
    • United States
    • United States State Supreme Court of Wyoming
    • June 4, 1992
    ...give defendant's instruction presenting his theory of defense if the instruction is supported by competent evidence. Stapleman v. State, 680 P.2d 73, 75 (Wyo.1984). However, the court may refuse an instruction which is argumentative or unduly emphasizes one aspect of the law. Prime v. State......
  • Eaton v. State, No. 04-180.
    • United States
    • United States State Supreme Court of Wyoming
    • August 18, 2008
    ...to articulate Wyoming law properly and yet be incomplete such that the instruction "may be properly refused." Stapleman v. State, 680 P.2d 73, 76 (Wyo.1984). If this does occur, it becomes "incumbent upon the court to either give the instruction or to otherwise properly instruct upon the ac......
  • Oien v. State, No. 89-203
    • United States
    • United States State Supreme Court of Wyoming
    • August 17, 1990
    ...to articulate Wyoming law properly and yet be incomplete such that the instruction "may be properly refused." Stapleman v. State, 680 P.2d 73, 76 (Wyo.1984). If this does occur, it becomes "incumbent upon the court to either give the instruction or to otherwise properly instruct upon the ac......
  • Bouwkamp v. State, No. 90-57
    • United States
    • United States State Supreme Court of Wyoming
    • June 2, 1992
    ...in the obligation to permit the defendant to adequately defend by statement in instructions of a theory of defense. Stapleman v. State, 680 P.2d 73, 75 The subject was well defined in Stapleman when this court comprehensively and correctly summarized the prior law of Wyoming and the constit......
  • Request a trial to view additional results
22 cases
  • Virgilio v. State, No. 90-209
    • United States
    • United States State Supreme Court of Wyoming
    • June 4, 1992
    ...give defendant's instruction presenting his theory of defense if the instruction is supported by competent evidence. Stapleman v. State, 680 P.2d 73, 75 (Wyo.1984). However, the court may refuse an instruction which is argumentative or unduly emphasizes one aspect of the law. Prime v. State......
  • Eaton v. State, No. 04-180.
    • United States
    • United States State Supreme Court of Wyoming
    • August 18, 2008
    ...to articulate Wyoming law properly and yet be incomplete such that the instruction "may be properly refused." Stapleman v. State, 680 P.2d 73, 76 (Wyo.1984). If this does occur, it becomes "incumbent upon the court to either give the instruction or to otherwise properly instruct upon the ac......
  • Oien v. State, No. 89-203
    • United States
    • United States State Supreme Court of Wyoming
    • August 17, 1990
    ...to articulate Wyoming law properly and yet be incomplete such that the instruction "may be properly refused." Stapleman v. State, 680 P.2d 73, 76 (Wyo.1984). If this does occur, it becomes "incumbent upon the court to either give the instruction or to otherwise properly instruct upon the ac......
  • Bouwkamp v. State, No. 90-57
    • United States
    • United States State Supreme Court of Wyoming
    • June 2, 1992
    ...in the obligation to permit the defendant to adequately defend by statement in instructions of a theory of defense. Stapleman v. State, 680 P.2d 73, 75 The subject was well defined in Stapleman when this court comprehensively and correctly summarized the prior law of Wyoming and the constit......
  • Request a trial to view additional results

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