Appeal from the District Court of Sheridan County The Honorable John G. Fenn, Judge
The opinion of the court was delivered by: Davis, Justice.
Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, 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 Carlos Yammon Pena was convicted of felony larceny after taking a pickup truck without the owner's permission. After the verdict was returned and accepted, but before sentencing, he moved for a new trial. He alleged that members of the venire and/or the jury overheard conversations between the State's witnesses, and that the information to which they were exposed tainted and prejudiced them. The district court denied his motion, finding that he had waived his right to ask for a new trial by failing to bring the alleged communications with jurors or potential jurors to the court's attention during trial. On appeal, he challenges that ruling and also contends that there was insufficient evidence of his intent to deprive the owner of the truck of that property as required for a conviction of larceny. We affirm.
[¶2] 1. Is the evidence in the record sufficient to support Mr. Pena's conviction for felony larceny?
2. Did the trial court err as to the applicable law or abuse its discretion in denying Mr. Pena's motion for a new trial on the ground that he waived his challenge by failing to raise it during trial?
[¶3] On the morning of May 21, 2010, Jerry Gross awoke at his home in Dayton, Wyoming to find that his pickup truck was missing. He immediately reported the theft to the Sheridan County Sheriff's Department. The truck was a maroon 2005 Ford F-250 crew cab "decked out" with a number of accessories: a grille guard, a chrome tailgate, tinted windows, a sixteen-ton hitch, a spray-on bed liner, and window decals advertising Mr. Gross's business, Cow-Tran. Mr. Gross had not given anyone permission to use his truck that day. Sheriff's Deputy Mike Hamilton was unable to locate the vehicle, and he therefore reported it as stolen to the National Crime Information Center (NCIC) database.
[¶4] Mr. Pena was a nineteen-year-old Sheridan College student at the time the pickup truck was taken. He lived in Dayton, while his off-and-on girlfriend Kaitlyn lived in Rapid City, South Dakota. At trial, his counsel described this relationship as "a love interest that he had at that time, as many 19-year-old love interests go, that waned after some period of time . . . ."
[¶5] Mr. Pena normally visited Kaitlyn often, but had not seen her in some time because his own pickup truck had broken down, leaving him with no transportation. Trial counsel acknowledged that Mr. Pena took Mr. Gross's truck so he could visit Kaitlyn, and that he did not have the owner's permission to take the truck.
[¶6] After taking the pickup, Mr. Pena traveled to Rapid City, where he stayed intermittently with Kaitlyn and her mother Kim Heuer for about a month. He drove the truck during this time frame, but he removed company decals shortly after arriving in Rapid City. Ms. Heuer testified that he told her and her daughter that the vehicle belonged to his mother. He eventually left in the truck to visit his father in Covington, Louisiana. According to Ms. Heuer, the vehicle was clean and was not damaged during the time Mr. Pena was in Rapid City.
[¶7] Ms. Heuer testified that after Mr. Pena's departure, her daughter Kaitlyn noticed an email confirmation for a Craigslist advertisement sent to Mr. Pena's email address. She was able to access Mr. Pena's email account because his password was stored on her computer. In the advertisement, Mr. Pena listed the following parts of the truck for sale: the sixteen ton hitch, the chrome tailgate, and the aftermarket grille guard. The advertisement, which Kaitlyn saved, stated that "[t]hey came [on] my 2005 Ford F250 . . . ." A printout of the advertisement was received in evidence at trial.
[¶8] On August 30, 2010, the St. Tammany Parish, Louisiana Sheriff issued a "Be On The Lookout" (BOLO) notice directing law enforcement to stop a maroon Ford F-250 with Wyoming license plates. The BOLO related to a different possible crime which was not identified to the jury. Corporal Robert Edwards of the St. Tammany Parish Sheriff's Office located the vehicle and stopped it. This was not particularly difficult, because Corporal Edwards sees few vehicles with Wyoming plates in St. Tammany Parrish.
[¶9] Mr. Pena was driving the pickup truck, and he readily identified himself, but he was unable to produce a driver's license, registration, or proof of insurance. When Corporal Edwards asked if the truck belonged to him, he claimed that it belonged to his boss, who worked in construction. Corporal Edwards ran the license plate through the NCIC database, confirmed that the truck was stolen, and placed Mr. Pena under arrest.
[¶10] Deputy Cecil Hoyt, who was also employed by the St. Tammany Parrish Sheriff, responded to the scene and relieved Corporal Edwards. Mr. Pena admitted to Deputy Hoyt that the truck was stolen, but this time claimed that it belonged to his mother's fiance. He did not mention any plan to return it to its owner. When Deputy Hoyt asked him about being caught with the truck, he responded "I made it this far, didn't I?" Deputy Hoyt testified at trial that Mr. Pena had a cocky and arrogant demeanor during the conversation.
[¶11] Mr. Gross eventually recovered the truck in March of 2011, with some assistance from Mr. Pena's mother. Its license plates, vehicle identification number (VIN), and registration documents were unaltered. The truck was in good condition but was missing its grille guard, a toolbox, and the Cow-Tran decals. Mr. Pena had put around 14,000 miles on the vehicle during his odyssey.
[¶12] After his arrest in Louisiana, Mr. Pena was extradited to Sheridan County. He was charged with one count of felony larceny in violation of Wyo. Stat. Ann. § 6-3-402(a)(c)(i), to which he pled not guilty.
[¶13] Jury trial began on July 27, 2011, at 9:00 a.m. Voir dire commenced after the trial judge gave an explanation of the trial process and an initial admonition. At 10:07 a.m., the court recessed to chambers for what the judge predicted would be about half an hour, and the prospective jurors were told that they were welcome to go outside the courtroom into the hallway. Counsel then made challenges for cause and peremptory challenges in chambers. The trial transcript does not identify when the trial resumed in open court. Once the proceedings resumed, a jury of twelve and one alternate was seated and sworn, and the rest of the venire was excused.
[¶14] Following opening statements, the State called a total of five witnesses: Mr. Gross, Deputy Hamilton, Ms. Heuer, Corporal Edwards, and Deputy Hoyt. Their testimony was consistent with the summary set forth above. The State rested, and Mr. Pena did not move for judgment of acquittal under Wyoming Rule of Criminal Procedure 29. He then called Gail Sistrunk, his mother, as his only witness. Her testimony was generally consistent with that of the State's witnesses. The State did not put on a rebuttal case.
[¶15] An instruction conference had been held earlier, but the court excused the jury for a break after the evidence was closed, and asked if there were any proposed changes or modifications to the instructions based on Ms. Sistrunk's testimony. After learning that there were none, the court asked counsel if the parties had anything else they wanted to have considered, and both attorneys indicated they did not. The court then instructed the jury on the elements of felony larceny, including the requirement that the State prove intent to deprive the owner or lawful possessor of property worth $1,000.00 or more beyond a reasonable doubt.
[¶16] The State argued that the evidence showed that Mr. Pena intended to deprive the owner of the truck for the following reasons:
He had the vehicle for three months by the time it was recovered in Louisiana. He removed the Cow-Tran decals to make the vehicle less easily identifiable. He inconsistently claimed the truck belonged to his mother, his boss, and his mother's fiance. He probably sold the truck's grille guard through the ad placed on Craigslist, and tried to sell other parts by the same means. A toolbox was missing from the truck when it was located, suggesting that it might also have been sold on Craigslist. He told Deputy Hoyt, "I made it this far," suggesting that he would have kept the truck as long as he could.
He put 14,000 miles on the vehicle.
[¶17] Mr. Pena's counsel first emphasized the State's burden to prove each essential element of the offense charged beyond a reasonable doubt. He then argued that the evidence only showed misdemeanor ...