Appeal from the District Court of Campbell County The Honorable Michael N. Deegan, Judge
The opinion of the court was delivered by: Burke, Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.
BURKE, J., delivers the opinion of the Court; VOIGT, J., files a special concurrence.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.
[¶1] Appellant, Ronald Kirby Jones, appeals his conviction of felony larceny in violation of Wyo. Stat. Ann. § 6-3-402(a). He challenges the district court's subject matter jurisdiction and contends that the district court erred in instructing the jury as to the elements of larceny. He also asserts there was insufficient evidence to support his conviction. We conclude that the jury instructions were inadequate, and, as a result, we reverse and remand for a new trial.
[¶2] Appellant raises four issues, which we discuss in the following order:
1. Did the district court obtain subject matter jurisdiction over the State's larceny charge under W.S. § 6-3-402(a) when the affidavit of probable cause alleged facts indicating a violation of W.S. § 6-3-402(b), which defines the crime of larceny by bailee?
2. Did the trial court improperly instruct the jury?
3. Did the prosecution provide sufficient evidence to support the elements of caption and asportation?
4. Did the trial court abuse its discretion in refusing to allow the defense to examine the prosecution's expert witness regarding his prior felony convictions?
[¶3] Appellant rented a mechanic's shop jointly with an acquaintance in Gillette, Wyoming. Appellant and his cotenant both worked on cars at the shop, and each had a separate area outside the shop where they stored vehicles. Sometime in the summer of 2006, Appellant's cotenant allowed Corey, the owner of a 1968 Dodge Charger, to store his car in the cotenant's area of the shop grounds. Approximately a year later, the cotenant moved from Gillette and no longer rented the shop with Appellant. Corey testified that in early 2008, after the cotenant had moved away, Appellant told him that he could continue to store his car at the shop. Corey testified that he talked to Appellant again sometime in late 2008 or early 2009, and Appellant again told him that he could continue to store his car there. Corey did not pay Appellant to store his car at the shop.
[¶4] From 2006 to May, 2009, Corey went to the shop approximately six times to check on his car and to store replacement parts inside the car. In addition, Corey periodically drove by the shop to make sure the car was still there. In June, 2009, Corey drove by the shop and noticed that his car was missing from the spot where it had been parked for the last several years. He testified that when he checked with Appellant, Appellant told him that he thought Corey had taken the car away. According to Appellant, however, he first met Corey when he came to inquire about his missing car. Appellant further testified that he had never spoken to Corey about storing his car at the shop. On June 19, 2009, after checking with several of his friends to see if they had heard anything about his car, Corey reported to the Sheriff's office that the car had been stolen.
[¶5] A little over a month later, the vehicle was located when Mark, a resident of Gillette who restored old cars as a hobby, called the Sheriff's office to request a vehicle identification number check on a car in his possession that he thought might be stolen. Mark had obtained the vehicle from Appellant. He testified that in May, 2009, after learning that the vehicle was sitting at Appellant's shop, he spoke with Appellant about buying the car. Appellant told Mark that the car had been abandoned. He informed Mark that he did not own the car and did not have title. Mark offered to buy the car anyway, and the parties agreed to a purchase price of $2,000.00. Mark returned to the shop a week later and paid Appellant $1,000.00 in cash. No bill of sale, receipt, or other paperwork was exchanged. The following week, Mark, his nephew, and his nephew's roommate went to the shop and loaded the car onto a trailer. Appellant arrived at the shop as they were loading the car and was paid the remaining $1,000.00. Mark subsequently towed the car to his house, and his nephew began stripping the car a few days later.
[¶6] Appellant was charged with felony larceny under Wyo. Stat. Ann. § 6-3-402(a). After a two-day jury trial, he was found guilty. He was sentenced to a prison term of two to five years, which was suspended in favor of five years of supervised probation. This appeal followed.