Appeal from the District Court of Fremont County The Honorable Norman E. Young, Judge
Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel. Argument by Mr. Alden.
Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Joshua C. Eames, Assistant Attorney General; Lisa Marie Jerde Spillman, Assistant Attorney General; Darrell D. Jackson, Faculty Director, A. Walker Steinhage, Student Director, and Geoffrey T. Cunningham, Student Intern, of the Prosecution Assistance Program. Argument by Lisa Marie Jerde Spillman.
Before BURKE, C.J., and DAVIS, FOX, JJ., and GOLDEN, J., (Ret.), and KAUTZ, D.J. [*]
[¶1] A jury found Curtis Russell Oldman guilty of conspiracy to commit robbery. Mr. Oldman has appealed that conviction, claiming the State failed to present sufficient evidence of that conspiracy and the State engaged in prosecutorial misconduct in both its opening statement and closing argument by misleading the jury by using the phrase "if he was there, he was aware" to suggest that Mr. Oldman's mere presence at the scene of the robbery was sufficient evidence to prove the "agreement" element of the crime of conspiracy. As we shall explain in the following discussion, we find no error and affirm Mr. Oldman's conviction and sentence.
[¶2] Mr. Oldman presents these issues for our consideration:
I. Was sufficient evidence presented to support a conspiracy conviction?
II. Did the prosecutors commit misconduct?
I. Sufficiency of the Evidence
[¶3] Mr. Oldman and the State inform us that the only issue at trial was whether 27-year-old Mr. Oldman conspired with his 16-year-old brother, A.S., to commit robbery. There is no question that A.S. committed the robbery of the victim shortly after 4:30 p.m., November 10, 2013, in the parking lot at the Walmart store in Riverton, Wyoming. The only issue at trial was whether Mr. Oldman conspired with A.S., as that term is understood in Wyoming criminal law. Our conspiracy statute provides that a person is gu ilty of conspiracy to commit a crime if he agrees with another person that one of them will commit a crime and one of them does an overt act to effect the objective of the agreement. Wyo. Stat. Ann. § 6-1-303(a) (LexisNexis 2015).
[¶4] In Remmick v. State, 2012 WY 57, 275 P.3d 467 (Wyo. 2012), we stated:
For a conspiracy conviction to be sustained, "the evidence must show beyond a reasonable doubt that the parties to the conspiracy voluntarily agreed to commit an offense." Martinez v. State, 943 P.2d 1178, 1183 (Wyo. 1997).
In Smith v. State, 902 P.2d 1271 (Wyo. 1995), we considered what type of agreement was necessary for a conspiracy to exist.
"One might suppose that the agreement necessary for conspiracy is essentially like the agreement or 'meeting of the minds' which is critical to a contract, but this is not the case. Although there continues to exist some uncertainty as to the precise meaning of the word in the context of conspiracy, it is clear that the definition in this setting is somewhat more lax than elsewhere. A mere tacit understanding will suffice, and there need not be any written statement or even a speaking of words which expressly communicates agreement. . . .
Because most conspiracies are clandestine in nature, the prosec[u]tion is seldom able to present direct evidence of the agreement. Courts have been sympathetic to this problem, and it is thus well established that the prosecution may 'rely on inferences drawn from the course of conduct of the alleged conspirators.'"
902 P.2d at 1281-82 (quoting WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., CRIMINAL LAW at 460-61 (1972)).
Martinez, 943 P.2d at 1183. Remmick, ¶ 30, 275 P.3d at 473.
[¶5] To determine the sufficiency of the evidence proving the agreement between Mr. Oldman and A.S., his younger brother, we apply the appropriate standard of review:
Our standard of review is simple and established when a determination is challenged on the basis of the sufficiency of the evidence. We examine whether the evidence most favorable to the State is sufficient to infer reasonably that a statute was violated as charged. See Mendicoa v. State, 771 P.2d 1240, 1243 (Wyo. 1989); Seeley v. State, 715 P.2d 232, 240-41 (Wyo. 1986); Chavez v. State, 601 P.2d 166 (Wyo. 1979); and Cheng v. Com., 240 Va. 26, 393 S.E.2d 599, 608 (1990). Our examination involves a two stage process.
When examining if the verdict is supported by sufficient evidence, we review the record to examine "all the evidence in the light most favorable to the [s]tate * * *." Mendicoa, 771 P.2d 1243. We examine the evidence from this perspective because we defer to the jury as the fact-finder and assume they believed only the evidence adverse to the defendant since they found the defendant guilty beyond a reasonable doubt. We are aware the defendant's version argued for a finding of "not guilty" while the prosecutor's version argued for a finding of "guilty." Had the jury found the defendant's version credible, they would be bound to harbor reasonable doubt against the prosecutor's claim that the defendant was guilty. But they did not find the defendant's version credible and therefore found him gu ilty beyond a reasonable doubt. We do not ask if "'the evidence establishes guilt beyond a reasonable doubt for us * * *, '" Id. at 1243 (quoting Broom v. State, 695 P.2d 640, 642 (Wyo. ...