Appeal from the District Court of Sheridan County The Honorable John G. Fenn, Judge.
The opinion of the court was delivered by: Golden, Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT,*fn1 and BURKE, JJ.
[¶1] Stanley Budder, Jr. (Budder) was convicted of burglary in violation of Wyo. Stat. Ann. § 6-3-301 (LexisNexis 2009)*fn2 and wrongful taking or disposing of property in violation of Wyo. Stat. Ann. § 6-3-403 (LexisNexis 2009).*fn3 On appeal, he challenges a jury instruction he argues relieved the State of proving all elements of the crimes charged beyond a reasonable doubt. We affirm.
[¶2] Budder presents one issue for our review:
Did the court improperly instruct the jury as to the burden shift required when excusing possession of recently stolen property when the defense theory was to deny possession rather than attempting to explain it?
[¶3] The Crazy Woman Saloon in Dayton, Wyoming, was burglarized on October 20, 2008. Over $3,000 in cash was taken in the burglary. The money, sorted by denomination and bundled in $100 increments, was contained in a gallon size zip-lock bag. About one week after the burglary, an individual named Tony Fox returned approximately $1,600 cash to the Crazy Woman Saloon. The money was sorted, bundled and contained in a gallon size zip-lock bag.
[¶4] Fox testified he had gotten the money from Budder. Fox explained Budder had come to his residence the night before he returned the money and the two of them drank and watched movies. During the course of the evening, Budder produced the money-filled zip-lock bag and placed it on a coffee table. When Fox questioned Budder about the money, Budder gave no answer. Budder then made a statement to the effect that he would have to hurt Fox because Fox now knew too much. Fox got nervous and waited for Budder to fall asleep. He then took the money from Budder and left his residence. Believing the money to be a portion of the money stolen from the Crazy Woman Saloon, Fox returned the money there.
[¶5] Further investigation revealed Budder was at the Crazy Woman Saloon until closing time the night of the robbery; Budder knew where and how the money was kept at the Crazy Woman Saloon; Budder had no alibi for the time of the robbery; Budder was burdened with various debts at the time of the robbery; and Budder did not have steady employment at the time of the robbery.
[¶6] Budder consistently denied ever possessing the money. Budder, in his appellate brief, summarizes the general flavor of the trial proceedings:
The prosecution theory was that Mr. Budder had sole possession and that Mr. Fox was a fine, civic-minded hero who stole the money from Budder in order to eventually, after much soul-searching, return it to its rightful owner. The defense theory was that Mr. Fox always had exclusive possession of the money and only after being observed by Mr. Budder with the ill-gotten loot, did he attempt to throw off suspicion by returning the remaining money and blaming Mr. Budder.
After a three-day trial, a jury convicted Budder of both burglary and wrongful taking ...