from the District Court of Sheridan County The Honorable John
G. Fenn, Judge
Representing Appellant: Office of the State Public Defender:
Diana Lozano, State Public Defender; Tina N. Olson, Chief
Appellate Counsel; and Kirk A. Morgan, Senior Assistant
Appellate Counsel. Argument by Mr. Morgan.
Representing Appellee: Peter K. Michael, Wyoming Attorney
General; David L. Delicath, Deputy Attorney General;
Christyne M. Martens, Senior Assistant Attorney General; and
Caitlin F. Young, Assistant Attorney General. Argument by Ms.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
A jury convicted Miranda Mraz of seven counts of felony
forgery and one count of misdemeanor theft arising out of
charges that as a server at a restaurant she altered credit
card receipts to increase the amount of her tips. On appeal,
Ms. Mraz asserts that her conviction should be reversed on
grounds of vindictive prosecution, ineffective assistance of
counsel, prosecutorial misconduct, failure to provide
supplemental instructions to the jury, and insufficiency of
the evidence. We affirm.
Ms. Mraz states the issues on appeal as follows:
I. Were Ms. Mraz's due process rights violated as her
prosecution was motivated by prosecutorial vindictiveness?
II. Was Ms. Mraz provided effective assistance of counsel?
III. Was Ms. Mraz denied her right to a fair trial when the
prosecutor in closing argument argued facts not in evidence?
IV. Did the district court commit reversible error when it
failed to provide a substantive answer of a question of law
asked during jury deliberation?
V. Was the evidence insufficient to support a conviction for
forgery or misdemeanor theft?
In 2013, Ms. Mraz began working at the Trails End Motel in
Sheridan, Wyoming. Ms. Mraz worked first in housekeeping and
then was promoted to server in the motel's restaurant,
the Firewater Grill. In November 2013, a customer contacted
Robert Romeo, the assistant general manager of the Trails End
Motel and Firewater Grill, and complained that he had been
overcharged for a tip he left on a credit card payment to the
Firewater Grill that month. Mr. Romeo looked into the
customer's complaint and verified that the customer had
been overcharged. Mr. Romeo then reported what he had found
to Robert Green, the general manager who supervised
operations at the Firewater Grill.
Upon learning of the overcharge, Mr. Green directed Mr. Romeo
to review the transactions for all the restaurant's
servers during that same month to ensure this type of
overcharge was not occurring frequently. After completing
that review, Mr. Romeo reported to Mr. Green that he had
found additional credit card transactions that were altered
and that while one of the transactions involved a customer
served by a server other than Ms. Mraz, the other several
transactions involved customers served by Ms. Mraz. Mr. Green
and Mr. Romeo both met with Ms. Mraz at this point and
informed of her of what they had found. Ms. Mraz denied any
wrongdoing in relation to the transactions.
Following their meeting with Ms. Mraz, Mr. Green directed Mr.
Romeo to broaden his investigation to include another
month's worth of credit card transactions. Mr. Romeo
completed his review of the additional transactions and
reported to Mr. Green that he found additional altered
transactions and all of them were for customers served by Ms.
Mraz. Mr. Green and Mr. Romeo then met with Ms. Mraz and
terminated her employment.
On February 19, 2014, Officer Daniel Keller of the Sheridan
Police Department conducted an alcohol compliance check at
the Firewater Grill. During an alcohol compliance check, two
officers in plain clothes accompany an under-aged person into
a bar and have that person attempt to buy alcohol. After
completing the compliance check, Officer Keller reported the
results of the compliance check to Mr. Green. During that
conversation, Mr. Green asked Officer Keller about reporting
the altered credit card transactions involving Ms. Mraz.
Officer Keller advised Mr. Green that he could not take his
report at that time because he was there solely for the
purpose of the compliance check, but he urged Mr. Green to
call the police department and report the matter.
On February 21, 2014, Officer Keller returned to the
Firewater Grill after finding that no report had been called
in. On that date, Officer Keller spoke with Mr. Romeo about
the allegations against Ms. Mraz, and Mr. Romeo turned over
the documents gathered in his review of the credit card
transactions involving customers served by Ms. Mraz. Officer
Keller then turned the documents over to the detectives
division of the Sheridan Police Department.
On May 29, 2014, the State filed an information against Ms.
Mraz charging her with six counts of felony forgery for the
alteration of credit card receipts and one count of
misdemeanor theft, all relating to the transactions at
Firewater Grill. On June 13, 2014, the State filed an amended
information, which added a count of felony forgery. On March
2, 2015, following a seven-day trial, a jury returned a
verdict finding Ms. Mraz guilty of all seven counts of felony
forgery and the one count of misdemeanor theft. On June 5,
2015, the district court entered its judgment and sentence.
The court sentenced Ms. Mraz to serve eighteen to thirty
months in prison on each of the seven counts of felony
forgery, to be served concurrently, and suspended those
sentences in favor of three years of supervised probation. On
the single count of misdemeanor theft, the court sentenced
Ms. Mraz to serve thirty days in jail and suspended that
sentence in favor of six months supervised probation, to be
served concurrent to the probation for the forgery
convictions. On July 2, 2015, Ms. Mraz filed her timely
notice of appeal to this Court.
Ms. Mraz presents her sufficiency of the evidence challenge
as her final claim of error on appeal. Because our discussion
of the evidence supporting Ms. Mraz's conviction may be
helpful in our discussion of Ms. Mraz's other claims of
errors, we will consider the sufficiency of the evidence
claim first. We will then address Ms. Mraz's remaining
claims of error in the order presented.
Sufficiency of the Evidence
Because our consideration of Ms. Mraz's sufficiency of
the evidence claim requires an understanding of how servers
at the Firewater Grill handle transactions with the customers
they serve, we will begin our discussion there. More
particularly, the jury was provided with detailed testimony
on the restaurant's system for processing, recording and
tracking customer transactions, and we briefly summarize that
The first piece of background information is the Firewater
Grill's system for processing and tracking customer
transactions. The Firewater Grill uses a point of sale
computer program called Maitre 'D, which was also the
system in use when Ms. Mraz worked as a server at Firewater
Grill. Each server has a server ID, which is a specific
number assigned to that server that allows the server to log
into the system. The server uses his/her server ID to: sign
into the system with a status that allows the server to wait
on tables; open a table and assign the table to a server; to
record the number of customers at a table; place and record
orders for a table; generate a bill to give to a customer;
process cash and credit/debit card payments by a customer;
and finalize any transaction with a customer.
Using the Maitre 'D system, the first thing a Firewater
Grill server must do upon arriving at work is sign into the
system using his/her server ID. [After a customer arrives and
is seated, the server enters his/her server ID, enters the
table number, and enters the number of customers at the
table. After taking any orders from a table, the server then
enters that additional information into the system. After
customers inform a server that no additional service is
required, the server, again using his/her server ID, opens
the check for that table on the system and prints the check.
The check generated by Maitre 'D will show the table
number, the details of the order, the order total, the date
and time the check was printed, the server ID number, and the
server's name. If a customer pays with a credit/debit
card, the server again opens the ticket in the system, runs
the card through the system, and then prints merchant and
customer copies of the credit/debit card receipt. The
merchant copy provides a line for a customer to enter a tip
amount and a line for the customer's signature. After the
customer signs the merchant copy, it is returned to the
server, and the server, again using his/her server ID number,
finalizes the transaction by entering into the system the
total amount paid, including the tip.
The second piece of background information that is important
to our consideration of Ms. Mraz's sufficiency of the
evidence claim is the manner in which a Firewater Grill
server handles cash and receipts received from customers
during the server's shift. The restaurant's servers
use a system called "server banking." This means
the server is the bank for a table. If a customer pays in
cash, the server makes change for the customer from cash the
server is holding. If the server does not have the
denominations needed to make the change, the server will take
the larger bills given by the customer to a bartender or the
motel's front desk and have the larger bill broken into
smaller bills that will allow the server to make change. The
server keeps all cash paid by customers and all receipts,
including both credit/debit card and cash receipts, on
his/her person until the end of the server's shift.
At the end of a server's shift, the server uses the
Maitre 'D system to prepare a document entitled
"Summary of Sales." The Summary of Sales totals all
of the server's transactions from the start of a shift to
the end of the shift. Drawing data from each transaction
entered by the server during the shift, the system generates
a summary that shows total sales and total number of tables
and customers served. The summary separates out totals for
cash transactions and credit/debit card transactions and
totals the tips left by credit/debit card. The summary also
displays a detailed report that separates out the meal cost
and tip for each table served by that server.
After a server prepares and prints the Summary of Sales
document, the server generally signs the document. The server
then submits the Summary of Sales document to the bartender
on duty, along with all receipts collected during the shift.
The server must also give the bartender the server's net
deposit for the shift. The net deposit is equal to the
server's total cash sales for the shift less any tips
left by credit/debit card. If cash sales exceed the
server's credit/debit card tips, the server will turn
over the remaining cash to the bartender. If the cash sales
are less than the server's credit/debit card tips, the
bartender will take cash from the till to give to the server
to make up the difference. Once the net deposit is resolved
with the bartender, the server will have received cash for
all credit/debit card tips left to the server during that
With this background, we turn to our standard of review and
analysis of Ms. Mraz's sufficiency of the evidence claim.
Standard of Review
In reviewing a claim that the evidence was insufficient to
support a guilty verdict:
[w]e examine and accept as true the State's evidence and
all reasonable inferences which can be drawn from it. We do
not consider conflicting evidence presented by the defendant.
We do not substitute our judgment for that of the jury;
rather, we determine whether a jury could have reasonably
concluded each of the elements of the crime was proven beyond
a reasonable doubt. This standard applies whether the
supporting evidence is direct or circumstantial.
Bean v. State, 2016 WY 48, ¶ 44, 373 P.3d 372,
386 (Wyo. 2016) (quoting Guerrero v. State, 2012 WY
77, ¶ 14, 277 P.3d 735, 738-39 (Wyo. 2012)).
We have further said:
We do not consider "whether or not the evidence was
sufficient to establish guilt beyond a reasonable doubt, but
[instead] whether or not the evidence could reasonably
support such a finding by the factfinder." Hill v.
State, 2016 WY 27, ¶ 13, 371 P.3d 553, 558
(Wyo.2016) (citing Levengood v. State, 2014 WY 138,
¶ 12, 336 P.3d 1201, 1203 (Wyo.2014)). "We will not
reweigh the evidence nor will we re-examine the credibility
of the witnesses." Hill, 2016 WY 27, ¶ 12,
371 P.3d at 558 (citation omitted). We review the sufficiency
of 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."
Oldman, 2015WY 121, ¶ 5, 359 P.3d at 966.
Bean, ¶ 45, 373 P.3d at 387.
Ms. Mraz was convicted of seven counts of felony forgery, in
violation of Wyo. Stat. Ann. § 6-3-602, and one count of
misdemeanor theft, in violation of Wyo. Stat. Ann. §
6-3-402. Ms. Mraz argues the evidence was insufficient to
support these convictions because the State was able to prove
only that Ms. Mraz had the opportunity to commit the crimes,
and opportunity evidence without corroboration cannot sustain
We have indeed held that evidence of opportunity alone is
insufficient to support a conviction. Mraz v. State,
2014 WY 73, ¶ 15, 326 P.3d 931, 935-36 (Wyo. 2014)
(citing State v. Morris, 283 P. 406, 414 (Wyo.
1929); Jozen v. State, 746 P.2d 1279, 1283 (Wyo.
1987); Smizer v. State, 752 P.2d 406, 411 (Wyo.
1988); Fischer v. State, 811 P.2d 5, 8 (Wyo. 1991).
The record must contain additional evidence, such as the
defendant's possession of the stolen property, a motive
to commit the crime, an attempt to avoid apprehension, or
some other direct link to the crime. Mraz, ¶
16, 326 P.3d at 936. We thus agree with Ms. Mraz's
premise that opportunity evidence alone cannot sustain a
conviction. Based on our record review, however, we find
sufficient corroborating evidence to support the jury's
The forgery convictions related to transactions in which Ms.
Mraz was alleged to have made written alterations to the
amount of the tip written on the credit/debit card receipt by
the customer. For each of those transactions, the State
presented, at a minimum: the merchant copy of the receipt
showing the alteration; the testimony of the customer
confirming that the customer's writing on the receipt had
been altered; the Summary of Sales showing both that Ms. Mraz
was the server and that the amount of the credit/debit card
tip she was due was the amount inflated by the alteration;
and labor reports from the motel and restaurant showing that
Ms. Mraz signed off duty shortly after generating the Summary
of Sales report.
To summarize, the State presented evidence that a server
prepares a Summary of Sales at the end of the server's
shift and then settles up with the bartender. In the course
of that settling up, the server is essentially given cash in
exchange for amounts shown on the Summary of Sales as
credit/debit card tips and is thus left with cash in his or
her pocket based on the amount of the credit/debit card tips
shown on the Summary of Sales. For each of the seven
transactions for which Ms. Mraz was found guilty of forgery,
the Summary of Sales showed that the credit/debit card tips
for which Ms. Mraz would have received cash when she settled
up with the bartender were the tips inflated by the receipt
alterations. Additionally, the evidence showed that the
Summary of Sales documents associated with these seven
transactions were prepared under Ms. Mraz's server ID and
were run at the end of a shift she in fact worked. Finally,
the State also presented evidence that Ms. Mraz never
complained to management that she was not receiving cash for
the credit/debit card tips recorded on the Summary of Sales.
From all of this evidence, the jury could reasonably infer
that Ms. Mraz received cash in the amount of the inflated
tips, which is evidence that corroborates the State's
With respect to the theft counts, the State presented
evidence on two theories of how Ms. Mraz committed the
charged thefts. For fourteen transactions, the State alleged
Ms. Mraz committed theft by adding an 18% gratuity to the
ticket in violation of restaurant policy. In those
transactions, Ms. Mraz added the gratuity before the ticket
was given to the customer but without informing the customer
of the added charge, resulting in inflated tips ranging from
21% to 47% of the meal cost. The jury found Ms. Mraz not
guilty of theft with respect to each of those theft charges,
and we therefore need not concern ourselves with the evidence
supporting those charges.
The theft charges on which the jury did return a guilty
verdict consisted of transactions in which the State alleged
Ms. Mraz increased the amount of the tip authorized by the
customer when she charged the customer's credit/debit
card. There were ten of these transactions and they resulted
in inflated tips ranging from 15.5% to 82.3% of the meal
cost. For all but two of these transactions, the State
submitted, at a minimum, the merchant or customer copy of the
credit/debit card receipt showing the amount of the tip
authorized by the customer, the Summary of Sales prepared
under Ms. Mraz's server ID number and showing the
increased tip charged against the card, and a labor report
showing that Ms. Mraz checked out of work shortly after the
Summary of Sales was prepared. With respect to two of the
transactions, the State did not introduce corresponding labor
reports showing Ms. Mraz checked out of work shortly after
preparing the Summary of Sales documents. The State did,
however, introduce the associated Summary of Sales documents,
and those documents were signed by Ms. Mraz.
As with the forgery charges, the State's evidence to
support the theft charges included the Summary of Sales
documents, which for each of the transactions recorded
inflated credit/debit card tips for which Ms. Mraz would have
received cash when she settled up with the bartender at the
end of her shift. From this evidence, the jury could again
reasonably infer that Ms. Mraz received cash in the amount of
the inflated tips. This evidence corroborated the State's
opportunity evidence and was sufficient to support the
In 2012, in a case unrelated to the present appeal, Ms. Mraz
was charged with one count of larceny by bailee in relation
to money that went missing from the safe of her then
employer, the Sheridan, Wyoming Eagles Club. On February 16,
2013, a jury found Ms. Mraz guilty of the charged larceny.
After the district court entered its judgment and sentence on
the larceny conviction, Ms. Mraz appealed the conviction. On
June 10, 2014, this Court reversed Ms. Mraz's larceny
conviction, finding that it was not supported by sufficient
evidence. Thereafter, on August 4, 2014, the district court
entered a judgment of acquittal on the larceny charge.
Ms. Mraz now asserts that the State's prosecution of her
for forgery and theft was in retaliation for her successful
appeal of her 2013 larceny conviction. She contends that the
State's allocation of substantial prosecutorial resources
to crimes that resulted in only minor monetary losses to the
victims is evidence of the State's retaliatory motive and
that her present conviction must therefore be overturned as a
vindictive prosecution in violation of her due process
rights. We find no support for Ms. Mraz's claim in the
record or in the law.
1.Standard of ...