Sweets v. State

• Decision Date: 14 August 2013
• Docket Number: No. S–12–0253.,S–12–0253.
• Citation: 307 P.3d 860
• Parties: Ivan Lee SWEETS, Sr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

307 P.3d 860

Ivan Lee SWEETS, Sr., Appellant (Defendant),

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

No. S–12–0253.

Supreme Court of Wyoming.

Aug. 14, 2013.

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

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Darrell D. Jackson, Prosecution Assistance Program; and Emily Thomas, Student Director; Rives White, Student Intern. Argument by Messers. Racines and White.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.

HILL, Justice.

[¶ 1] Ivan Sweets was convicted of one count of obtaining property by false pretenses and one count of wrongful disposing of that property. He was sentenced to terms of six to eight years on each count, to be served consecutively. On appeal, Sweets challenges the sufficiency of the evidence to support his conviction for obtaining property by false pretenses, and he contends that the two criminal counts should have merged for purposes of sentencing.

[¶ 2] We affirm and, in so ruling, we overrule the “same facts or evidence test” for evaluating sentencing merger questions. The same elements test shall henceforth serve as our sole test for evaluating merger questions.¹

ISSUES

[¶ 3] Sweets states the issues on appeal as follows:

I. Did the court err by denying [Sweets'] motion for judgment of acquittal for the reason that there was insufficient evidence to support a verdict on obtaining property by false pretenses?

II. Did the court err in denying [Sweets'] motion to merge sentences in that both convictions arose from a single act and a single set of facts?

FACTS

[¶ 4] In April 2010, Sweets approached Mary Froman at her residence in Rock Springs, Wyoming and offered to clean up her property by removing junk iron and parts that he could sell for scrap. Ms. Froman agreed and showed Sweets the items that she would permit him to remove from her property. Ms. Froman also showed Sweets the items that she did not want removed from her property and that she did not consider junk that could be scrapped. Among the items Ms. Froman told Sweets she did not want removed were the attachments to a crane that was parked on her property, including the crane's boom, buckets, and dolly.

[¶ 5] About a month later, in May 2010, Sweets again contacted Ms. Froman, this time to tell her that he had located a buyer for her crane. Ms. Froman testified as follows concerning the conversation:

A. He asked if he could talk to me about the crane and I said yes, what is going on. And he said I have a buyer for your crane. And I said, oh, okay. And he said this buyer is from Pinedale, he wants your crane, but he doesn't want any of the boom, buckets or any of this other stuff, he just wants the crane. I told him at this time what he could do is he could tell the person that I was willing to sell the crane. I told him the price. But I said, the boom, bucket, all of this goes with the crane. If he don't want that he has to deal with you, not with me. He has it, he has it, it's lock, stock and barrel, he takes the crane and all the parts. I just didn't want to deal with a whole bunch of people with different things going on. The crane was $30,000 for the boom, buckets, crane and attachments.

Q. So it was a package deal?

A. Right.

Q. He talked about a buyer from Pinedale. Did he ever tell you who that was?

A. No.

Q. Did he ever—did you ever talk to anyone from Pinedale?

A. No.

[¶ 6] Sometime after that conversation, between the months of June and September 2010, Sweets asked Ms. Froman if he could purchase the crane himself. Ms. Froman responded by offering Sweets the same package deal—$30,000 for the crane and its attachments. Sweets and Ms. Froman had continuing conversations, and during one of those conversations, Ms. Froman agreed to finance the $30,000 purchase price.

Q. Were there certain things that you told him he would need to do in order for you to agree to finance the crane?

A. Yes, I did.

Q. What were those things?

A. That he had to have insurance on it. He had to have the crane in running condition. He had to keep it up. He had to stay in—all of the regulations and everything that went on with the state as far as permits, fees, everything, he had to do, he had to get all of these gathered around. He had to have a good mechanic. He had to have a place to put it while he worked on it because my driveway was not going to be open to him having a bunch of stuff around there working on the crane. He had to have a place to work on it. He had to move it to that place, so he had to have enough money to get permits to even move it after he—

Q. Was there a contract that was written at some point regarding you financing the crane for him?

A. I wrote a contract with him that stated that if he wanted to buy this crane, it was a 45–ton crane, it was with 510 foot of boom, it was four buckets, a dolly and some jib. If he wanted to take this crane and he wanted to keep it in good shape and work on it, I would work with him and go over a three-year period of financing to $30,000 for him.

[¶ 7] Sometime later, Sweets told Froman that he had made the arrangements she had requested and had secured: an individual willing to assist him in financing the costs of insurance (James Reinard); a mechanic to help Sweets work on the crane (Randy Shipman); and an auto recycling operation owner who would allow Sweets to store and work on the crane on his property (Jim Rasmussen). Ms. Froman did not know James Reinard, but she knew and trusted Randy Shipman and Jim Rasmussen, and she instructed Sweets to set up a meeting with each of the individuals so she could verify their arrangements with Sweets. The meetings Ms. Froman requested did not occur, and the contract remained unexecuted.

[¶ 8] In October 2010, Sweets again contacted Ms. Froman, and this time he requested permission to move the crane and its attachments to Jim Rasmussen's business property, 5 Star Auto and Truck Recycling. Ms. Froman testified as follows concerning that conversation:

A. Well, he came to me and said that he had someone that could move the crane up to 5 Star and that he was supposed to clean up their yard in exchange for the trucking of my boom and buckets and everything up to 5 Star.

Q. Was there a time that you told him that it would be okay to take the items up to 5 Star?

A. Only when he—he called me—after I said I had told him I wasn't going to let anything go until we get this contract signed and everything, he came to me, he called me and said the trucking company that is going to move that up there has a contract. They are going to be busy and it/s getting cold. It's getting winter, it's going to be hard to travel and everything, can I move the boom and buckets and crane up there now. And I told him no, not until you get this signed, not until we have an agreement on this. And he said, but can I just move the boom and buckets for now and get them on pallets out of the mud and everything. So I told him yes, the boom and the buckets could go up there to 5 Star on a pallet, but the crane was not to go until the contract and everything—until he had all his people going. I didn't feel like the boom and buckets could be worked anywhere else expect (sic) on the crane and the crane was stationary in my yard, I could see it. So I thought it was okay to let the boom and buckets be at this place where he was going to start a business.

[¶ 9] On October 13, 2010, Sweets arrived at Ms. Froman's property followed by a truck owned by Legend Trucking. At Sweets' direction, the truck driver loaded the crane's boom and jib. There were several other crane attachments that Sweets wanted taken at the same time, but those items would not fit on the truck with the boom and jib. Legend Trucking did not deliver the crane attachments to 5 Star for storage, but instead delivered the items to Pacific Steel, a steel recycling operation, where the items were sold for scrap. Leonard Bartels, the driver, testified:

A. I took it down to Pacific Steel and weighed in again, like I normally do. They told me to go get it unloaded, went down and got it unloaded. And come back up on the scales and got out of the truck. And Ivan [Sweets] was there and he said I have got it taken care of, and I said all right, I'll talk to you later. And that was it.

Q. So Ivan followed you down to Pacific Steel?

A. Yes.

Q. How did you know to take those items to Pacific Steel?

A. Because he told me to.

[¶ 10] On December 15, 2010, Ms. Froman called Jim Rasmussen to check on the boom and jib and make sure they were not in his way or in a bad place for him. Mr. Rasmussen informed Ms. Froman that none of her crane parts were being stored in his lot, and Ms. Froman immediately contacted the Sweetwater County Sheriff's Office. Sweets did not pay Ms. Froman for the crane parts, and after Ms. Froman discovered that the crane parts were not delivered to the 5 Star lot for storage, she did not again permit Sweets on her property.

[¶ 11] In July 2011, the State filed an Information charging Sweets with one count of wrongful taking or disposing of property and one count of obtaining property by false pretenses. A jury trial was held on January 9–11 and 19–20, 2012. On January 20, 2012, the jury returned a verdict finding Sweets guilty on both counts. On January 31, 2012, Sweets filed a Motion for Judgment of Acquittal and a New Trial, which the district court denied from the bench. On February 10, 2012, Sweets filed a Motion for Merger of Sentences, which the court also denied.

[¶ 12] On April 11, 2012, the court held a sentencing hearing for the purposes of sentencing Sweets on the two counts at issue in this appeal, as well as on a separate delivery of methamphetamine...