Appeal from the District Court of Albany County The Honorable Wade E. Waldrip, Judge
The opinion of the court was delivered by: Campbell, District Judge.
Before GOLDEN,*fn1 HILL, VOIGT, and BURKE, JJ., and CAMPBELL, D.J.
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] Luke Edward Mickelson appeals his conviction for unlawful possession with intent to deliver a controlled substance, contending the Court improperly admitted lay opinion testimony concerning Mr. Mickelson's level of intoxication, and that he was denied effective assistance of counsel. Finding no error, we affirm.
[¶2] Mr. Mickelson presents two issues for this Court's consideration:
I. Was trial defense counsel ineffective?
II. Did the testimony of two bartenders about intoxication invade the province of the trier of fact?
[¶3] Mr. Mickelson had apparently been drinking at a friend's house since mid-day on November 2, 2010, through and into November 3, 2010. After he left the friend's house, ostensibly to go to the bank, he encountered his brother and friends behind the Buckhorn Bar and had more drinks. According to Mr. Mickelson, a friend of his brother's gave him a bag of marijuana as a gift. Mr. Mickelson then proceeded to the bank and withdrew $2,000 that he intended to use to pay bills and purchase Christmas presents.
[¶4] After going to the bank, Mr. Mickelson entered the Third Street Bar, and after ordering and paying for a drink, he placed a tip on the bar for bartender Britnee Tonille which included both money and a marijuana "bud" on top of the money. Ms. Tonille threw the marijuana away -- though at some point Mr. Mickelson retrieved the marijuana from the trash. He again placed the marijuana on the counter in front of three men at the bar, but again Ms. Tonille threw it in the trash. Mr. Mickelson continued in this behavior until special agents of the Wyoming Division of Criminal Investigation placed him under arrest. Shortly before agents confronted him, Vaughn Neubauer, an attorney who had previously represented Mr. Mickelson, arrived at the Third Street Bar. Mr. Neubauer saw the bag of marijuana and told Mr. Mickelson to put it away. Mr. Mickelson again waved the bag around, which caused Mr. Neubauer to take the bag and put it in his pocket. Mr. Neubauer testified at trial not only about the events at the bar but about his previous representation of Mr. Mickelson with regard to alcohol-related offenses.
[¶5] At trial, Ms. Tonille testified to the events of November 3, 2010, including the actions of Mr. Mickelson in the bar. She testified that she thought Mr. Mickelson was not too intoxicated to serve. Three of the men who were at the bar that afternoon, Jimmie Biles, Joshua Nerby, and Justin Groshart, testified variously about their observations of Mr. Mickelson, indicating while they thought he was "drunk" they did not observe him consume a great many drinks at the bar. Mr. Groshart, who was a bartender at another bar, testified that from his experience Mr. Mickelson was not so drunk that a bartender should not serve him. While the observations varied somewhat, all witnesses noted Mr. Mickelson's slurred speech.
[¶6] Two special agents of the Wyoming Division of Criminal Investigation also testified at trial about their observations of Mr. Mickelson's behavior while they were present in the bar. While noting he believed Mr. Mickelson was drunk, Special Agent Morrow also noted that Mr. Mickelson was able to perform functions such as operating the jukebox. Special Agent Crumpton also offered the opinion that Mr. Mickelson appeared drunk, but observed that he did not have any difficulty conversing with others or operating the jukebox. Special Agent Crumpton further offered the observation that Mr. Mickelson requested that the officers complete their confrontation with him in the alley and also asked to speak specifically with Mr. Neubauer, who he referred to as his attorney. Special Agent Crumpton testified that Mr. Mickelson was evaluated by jail personnel to insure there were not dangerous levels of intoxication necessitating medical treatment, and they concluded no treatment for over-intoxication was necessary.
[¶7] Mr. Mickelson testified at trial. He admitted showing the marijuana but testified he could not remember giving any to Ms. Tonille or the other men at the bar. He testified that in addition to the alcohol he drank, he was also taking prescription medications at the time.
[¶8] The State originally charged Mr. Mickelson with two counts on November 5, 2010: 1) attempt to deliver a controlled substance, marijuana, and 2) delivery of a controlled substance, marijuana. Ten days later the State filed an amended information alleging the single offense of unlawful possession with intent to deliver a controlled substance, marijuana, in violation of Wyo. Stat. Ann. § 35-7-1031(a)(ii) (LexisNexis 2011), which provides:
(a) Except as authorized by this act, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance. Any person ...