Appeal from the District Court of Albany County The Honorable Jeffrey A. Donnell, Judge
The opinion of the court was delivered by: Voigt, 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] The appellant, Richard Dean Youngberg, was convicted of one count of check fraud and was sentenced to seven to ten years of incarceration. On appeal, the appellant claims that the prosecutor committed misconduct when he told the jury in closing argument that the appellant was informed that there were problems with his checking account on March 17, 2010. The appellant argues that the prosecutor's statement was not consistent with the evidence presented at trial and, as a result, he is entitled to a new trial. We affirm the appellant's conviction.
Did plain error occur when the prosecutor referred to the officer's testimony regarding when the appellant was notified of problems with his checking account?
[¶2] On April 7, 2010, Officer Johnson with the Laramie Police Department was dispatched to the True Value hardware store in Laramie regarding a report of check fraud. Officer Johnson learned that the appellant had issued three separate checks to the business, and all three had been returned by the bank because they were written on a closed account. Officer Johnson began an investigation and learned that the appellant was the focus of two other investigations for check fraud regarding the same checking account that were being conducted by the Laramie Police Department. On April 13, 2010, Officer Johnson arrested the appellant for check fraud and, during a search incident to arrest, found the appellant's checkbook in the back pocket of his pants. The checkbook contained carbon copies of the checks written on the account. Officer Johnson determined that the appellant had written 20 checks to businesses in Albany County totaling $2,843 and one check to the NAPA Auto Parts store in Cheyenne for $362.49.
[¶3] At trial, defense counsel did not object to the prosecutor's comments and argument regarding when the appellant was first notified that his checking account was closed. Because it is being raised for the first time on appeal, we review for plain error. Lawson v. State, 2010 WY 145, ¶ 48, 242 P.3d 993, 1008 (Wyo. 2010). "In order to establish plain error, [the appellant] must show: 1) the alleged error clearly appears in the record; 2) the error transgressed an unequivocal rule of law in a clear and obvious way; and 3) the error adversely affected [the appellant's] substantial right resulting in material prejudice to him." Id.
[¶4] At trial, the appellant's defense to the charges against him was that he did not know that his checking account had been closed when he wrote the 21 checks to various businesses. The appellant claims that the prosecutor committed misconduct when he told the jury in closing argument that the appellant had been notified that there were problems with his checking account on March 17, 2010, and that he continued to write checks on the account until April 10, 2010. He claims that the evidence demonstrated that he did not know there were any problems with his checking account until the NAPA Auto Parts store notified him that his check written on April 10, 2010, had been denied. He argues that the prosecutor's statements and argument were inconsistent with the evidence that was presented at trial and caused material prejudice to the appellant's case.
[¶5] We find that the appellant has failed to demonstrate even the first part of the plain error standard of review--that the alleged error clearly appears in the record. The appellant claims that the prosecutor continually misrepresented that the NAPA Auto Parts store informed him that there was a problem with his checking account on March 17, 2010, when the evidence shows that the appellant did not write a check to the NAPA Auto Parts store until April 10, 2010. However, the record shows that the appellant wrote checks on the closed account to the NAPA Auto Parts store in Cheyenne and to the NAPA Auto Parts store in Laramie. The record is very clear, and there is no dispute, that the check was written to the Cheyenne store on April 10, 2010. The evidence regarding when the check was written to the Laramie store is not so clear. What is clear is that Officer Johnson testified, without objection, that an employee of the NAPA Store in Laramie notified the appellant on March 17, 2010, that the check he wrote to that store was returned.
[¶6] The appellant's entire argument is based upon the notion that it was the NAPA Auto Parts store in Cheyenne that notified the appellant that his check had been returned. In fact, the appellant fails to recognize in his brief on appeal that he even wrote a check to the NAPA Auto ...