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Osterling v. State

Supreme Court of Wyoming

August 21, 2018

ERIN T. OSTERLING, Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff).

          Appeal from the District Court of Uinta County The Honorable Joseph B. Bluemel, Judge

          Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Desiree Wilson, Assistant Appellate Counsel. Argument by Ms. Wilson.

          Representing Appellee: Peter K. Michael, Attorney General; Christyne M. Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General; Darrell D. Jackson, Director, Saige N. Smith, Student Director, and Erin E. Berry, Student Intern, Prosecution Assistance Program, University of Wyoming, College of Law. Argument by Ms. Berry.

          Before DAVIS, C.J., and BURKE [*] , FOX, KAUTZ and BOOMGAARDEN, JJ.

          BURKE, JUSTICE.

         [¶1] Appellant, Erin T. Osterling, was convicted of delivery of a controlled substance, methamphetamine, in violation of Wyo. Stat. Ann. § 35-7-1031(a)(i). He contends the prosecutor committed misconduct, resulting in denial of his right to a fair trial. We affirm.

         ISSUE

         [¶2] Appellant presents one issue:

Was Mr. Osterling denied his right to a fair trial and materially prejudiced due to prosecutorial misconduct during closing argument?

         FACTS

         [¶3] The Division of Criminal Investigation (DCI) organized a controlled buy from Mr. Osterling by George Cantrall, a confidential informant. Several law enforcement officers participated in the operation: Special Agent Justin Mathson of the DCI, Officer Jeffrey Chad Leichty of the Evanston Police Department, and Deputy Brandon Nelson of the Uinta County Sheriff's Department. Prior to the controlled buy, Deputy Nelson interviewed Mr. Cantrall, searched Mr. Cantrall and his vehicle, and provided funds to be used in the controlled buy. Mr. Cantrall was fitted with a wire and was observed by Deputy Nelson as he drove to Mr. Osterling's house. After arriving at the house, but prior to exiting his vehicle, Mr. Cantrall talked briefly through his passenger window to Parker Austin, who had just left Mr. Osterling's house. Special Agent Mathson and Officer Leichty observed Mr. Cantrall's brief interaction with Mr. Austin.

         [¶4] Mr. Cantrall spent approximately four minutes in Mr. Osterling's house before leaving. While in the home, Mr. Cantrall observed Mr. Osterling packaging methamphetamine into plastic baggies. He proceeded to purchase methamphetamine from Mr. Osterling. After Mr. Cantrall exited the house, Special Agent Mathson followed him to the police department. Upon arriving at the police department, Mr. Cantrall turned over the suspected methamphetamine to Deputy Nelson. Deputy Nelson conducted a post-buy interview of Mr. Cantrall and also conducted a strip search of Mr. Cantrall. Subsequent testing revealed that the substance provided by Mr. Cantrall was, in fact, methamphetamine.

         [¶5] As a result of these events, the State charged Mr. Osterling with delivery of a controlled substance in violation of Wyo. Stat. Ann. § 35-7-1031(a)(i) (LexisNexis 2015). He pled not guilty and the case proceeded to trial. At trial, the State presented testimony from Mr. Cantrall, the three law enforcement officers involved in the controlled buy, and a forensic chemist with the Wyoming State Crime Laboratory. Mr. Osterling did not testify or call any witnesses on his behalf.

         [¶6] The jury determined that Mr. Osterling was guilty of delivery of a controlled substance. He was sentenced to 18 to 48 months in prison. This appeal followed.

         STANDARD OF REVIEW

         [¶7] In raising his claim of prosecutorial misconduct, Mr. Osterling takes issue with several statements made by the prosecutor during closing argument. He did not object to any of those statements at trial. As a result, we review for plain error. Watts v. State, 2016 WY 40, ¶ 6, 370 P.3d 104, 106 (Wyo. 2016). "Plain error exists when: 1) the record is clear about the incident alleged as error; 2) there was a transgression of a clear and unequivocal rule of law; and 3) the party claiming the error was denied a substantial right resulting in material prejudice." Id. We do not reverse the judgment "unless a reasonable probability ...


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