Appeal from the District Court of Laramie County The Honorable Peter G. Arnold, Judge
The opinion of the court was delivered by: Burke, Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.
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, Francis Xavier Guerrero, challenges his conviction of felony larceny in violation of Wyo. Stat. Ann. § 6-3-402(a). He claims the district court erroneously instructed the jury on the elements of larceny. He also contends that the evidence presented at trial was insufficient to support his conviction. We conclude the evidence was insufficient to sustain the conviction and, accordingly, reverse.
[¶2] Appellant raises the following issues:
1. Was the jury properly instructed on the elements of felony larceny?
2. Was there sufficient evidence to support the conviction of felony larceny?
The State presents the issues as follows:
1. Did the district court commit plain error when it omitted the phrase "took and carried away" from the jury instruction setting out the elements of larceny?
2. Did the prosecution produce sufficient evidence of caption and asportation to sustain Guerrero's larceny conviction beyond a reasonable doubt?
[¶3] Appellant was employed as a server at the Tortilla Factory restaurant in Cheyenne from August, 2006 to November, 2008. Servers at the restaurant are required to use the restaurant's computers to enter food orders and generate customer checks. Each server uses a unique two-digit code to log into the computers' cashier program, which keeps track of a server's total amount of sales, number of food items sold, voided orders, and discounts issued during a shift. Discounted and voided orders must be approved by a restaurant manager and entered into the computer using a manager's five-digit code. Because the computers do not hold cash, Appellant and the other servers at the restaurant were required to hold money received from cash-paying customers until the end of a shift. When a server's shift was over, the server would print out an individualized server report from the restaurant's computer system and turn over an amount of cash, checks, and credit card receipts equaling the server's total amount of sales, less any voids and discounts, as reflected on the server report.
[¶4] On November 14, 2008, as Appellant was logging into the restaurant computer's cashier program, another employee at the Tortilla Factory observed Appellant enter a four- or five-digit code into the program, which was represented by four or five asterisks on the computer screen. This attracted the employee's notice because all of the servers at the restaurant were identified by two-digit codes, and only restaurant managers logged into the computer using five-digit codes. When Appellant saw the employee standing behind him, he cleared the transaction and positioned himself so that the employee could no longer see the screen.
[¶5] On the following day, the employee described the incident to her supervisor, Isabell Tapia, who managed the restaurant with her brothers, Sam and Martin Tapia. At the end of the day, when Appellant handed in his server report, Ms. Tapia noticed an abnormally large number of voids and discounts on the report. Seven other servers worked on November 15, and twenty-three orders were voided that day. Appellant's server report indicated that he had voided nineteen of those orders. Similarly, a total of thirty-seven discounts were entered that day, and thirty-four were ...