Appeal from the District Court of Sheridan County. The Honorable John G. Fenn, Judge.
Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; and David E. Westling, Senior Assistant Appellate Counsel. Argument by Mr. Westling.
Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; and Joshua C. Eames, Assistant Attorney General. Argument by Ms. Craig.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
[¶1] After a jury convicted Carlos Peña of larceny, the district court revoked his probation from a previous case. In this consolidated appeal, Mr. Peña argues that his probation from the previous case should not have been revoked while the instant case was still pending appeal. Regarding the instant larceny case, Mr. Peña argues that during trial, the district court should not have allowed a jury instruction that improperly shifted the burden of proof to Mr. Peña and asserts that there was insufficient evidence to convict him in that there was no evidence that he moved or carried away the stolen items.
[¶2] We will affirm both the probation revocation and the judgment and sentence on the larceny conviction.
[¶3] S-15-0054 issue:
Was a probation revocation based solely on a conviction on a criminal case under appeal appropriate?
1. The Court abused its discretion by allowing instruction No. 11, which improperly shifts the burden of proof to the defendant and obviates the need to prove a crucial element of the crime charged.
2. There was insufficient evidence to convict Mr. Peña of larceny in that there was no evidence that he actually moved or carried away the stolen goods.
[¶4] In December of 2011, Carlos Y. Peña was sentenced to two and a half to three years in prison for larceny. Mr. Peña completed the Youthful Offender Treatment Program and in July of 2012, the district court suspended the remainder of his sentence and imposed three years of supervised probation.
[¶5] Fast forward to April 3, 2013, when Sheridan business owner Steven Bush discovered that his flatbed trailer and mini-excavator were missing. In early May, Bush and his brother-in-law discovered a Craigslist ad for a mini excavator. The men called the number in the ad and met the seller, Carlos Peña. Mr. Peña took the men to look at the excavator and immediately upon their arrival, Bush noticed his stolen flatbed trailer and excavator. The excavator that Mr. Peña listed for sale on Craigslist was Bush's excavator. Bush immediately contacted the Sheridan County Sheriff's Office.
[¶6] After the tip from Bush, deputies from the sheriff's office paid Mr. Peña a visit. He told the deputies that the excavator belonged to his mother and father-in-law and that he had authority to sell it. The license plate and VIN number from the excavator showed that it was stolen and belonged to Bush's company, Westin Mechanical. After further investigation, the State charged Mr. ...