from the District Court of Platte County The Honorable F.
Scott Peasley, Judge.
of the State Public Defender: Diane M. Lozano, State Public
Defender; Kirk A. Morgan, Chief Appellate Counsel; Jonathan
W. Foreman, Senior Assistant Public Defender; and Denny L.
Harts, Assistant Public Defender. Argument by Mr.
K. Michael, Wyoming Attorney General; Christyne M. Martens,
Deputy Attorney General; and Katherine A. Adams [*] , Senior Assistant
Attorney General. Argument by Ms. Adams.
DAVIS, C.J., FOX, KAUTZ, and BOOMGAARDEN, JJ., and PARK, D.J.
District Judge (Retired).
A jury convicted Rebel Scott Kuebel of misdemeanor theft and
felony property destruction. Mr. Kuebel appeals, asserting
that the prosecutor committed misconduct; he was entitled to
a judgment of acquittal for destruction of property because
he only disassembled and did not destroy the property; he was
entitled to a judgment of acquittal on a charge of theft
because the victims had no ownership interest in the
property; and that the district court abused its discretion
in awarding restitution.
Appellant raises four issues:
1. Did the prosecutor commit misconduct when three of the
State's witnesses provided nonresponsive answers
suggesting that Mr. Kuebel sold motorcycle parts when there
was no evidence of such sales?
2. Was Mr. Kuebel entitled to a judgment of acquittal on the
charge of property destruction of the 1988 Harley Davidson
when it was only disassembled?
3. Was Mr. Kuebel entitled to a judgment of acquittal on the
charge of theft of a 1972 Norton motorcycle because the
victims did not reserve an ownership interest in this
motorcycle when they sold their business to Mr. Kuebel?
4. Did the district court abuse its discretion in awarding
$2, 500.00 in restitution after the jury convicted him of
Thomas and Lucinda Collins owned a business in Wheatland,
Wyoming, known as West Wind Cycles. The primary purpose of
this business was motorcycle repairs and parts. In 2013, Mr.
Collins was seriously injured and the Collinses decided Mr.
Collins could no longer operate the business, so they
resolved to sell it.
The Collinses had known Mr. Kuebel since he was a child. Mr.
Kuebel had moved back to Wheatland from Utah and had heard
about Mr. Collins' accident. He was trying to help Mr.
Collins through the week of the motorcycle rally in Sturgis,
South Dakota. The Collinses retained a local attorney and
they sold their business to Mr. Kuebel and Ms. Stephanie
Menzies on a contract for deed. Mr. Kuebel fell behind on his
payments and the parties entered into a second contract. The
second contract included missed payments and interest and
substituted Ms. Rebecca Schwartz for Ms. Menzies. Eventually,
Mr. Kuebel failed to make payments under the second contract
and the Collinses took back the property.
When the Collinses sold the business, they retained several
motorcycles: two Harley Davidsons, a 1979 Sportster and a
1988 FLHT; and three Nortons, a 1971, a 1972 and a 1973,
although the 1973 was just a collection of parts. Mrs.
Collins testified that both of the Harley Davidsons and two
of the Nortons were operational. The motorcycles were all
left in a locked shed located on the property that had been
sold. The Collinses had titles for all of the motorcycles,
except for the one being used for parts. They kept the titles
in a safety deposit box.
Mr. Collins testified that when he and his wife regained
possession of the property, the 1988 Harley Davidson was
missing the front engine cylinder, the connecting rods and
pushrods, the rims and tires, the saddlebags, the front end,
and the seat. The 1979 was missing a headlight, gas tank,
seat, and carburetor. Later, part of the front end, the gas
tank, and one muffler were returned to Mr. and Mrs. Collins.
Neither of the operational Norton motorcycles were on the
premises, and both Mr. Kuebel and his business partner
testified they had been sold as junk.
Mr. Kuebel was originally charged with four counts: two
counts of felony theft in violation of Wyo. Stat. Ann. §
6-3-402(a) (LexisNexis 2017); and two counts of felony
property destruction in violation of Wyo. Stat. Ann. §
6-3-201(a) (LexisNexis 2017). The first two counts are
identical and do not reference any particular item or piece
of property; likewise, the second two counts are also
identical, and again, do not reference any piece of property.
It would be impossible to determine from the Information what
was alleged to have been stolen in the first two counts and
what was alleged to have been damaged in the second two
counts. At the end of the State's case, the Court, with
the agreement of both parties, informed the jury that issues
relating to the alleged theft of the 1971 Norton motorcycle
had been resolved. Instruction No. 15 instructed the jury
that Mr. Kuebel had been charged with three crimes: theft of
a 1972 Norton motorcycle; property destruction and defacement
of a 1979 Harley Davidson motorcycle; and property
destruction and defacement of a 1988 Harley Davidson
The jury found Mr. Kuebel guilty of misdemeanor theft of the
1972 Norton motorcycle, and guilty of felony property
destruction and defacement relating to the 1988 Harley
Davidson motorcycle. Mr. Kuebel was found not guilty of
property destruction relating to the 1979 Harley Davidson
Mr. Kuebel was sentenced to a term of four to six years for
the felony property destruction. This sentence was suspended
on the condition Mr. Kuebel complete five years of supervised
probation. On the misdemeanor theft, Mr. Kuebel was sentenced
to serve 180 days. This sentence was suspended on the
condition Mr. Kuebel complete six months of probation, served
concurrently with the felony probation. Mr. Kuebel was also
ordered to pay restitution of $9, 600 for the damage to the
1988 Harley Davidson and $2, 500 for the theft of the 1972
Norton motorcycle. Additional facts will be presented as
necessary to discuss the issues. Mr. Kuebel filed a timely
Did the prosecutor commit misconduct?
Mr. Kuebel asserts the prosecutor committed misconduct by
failing to properly control the State's witnesses, which
caused six non-responsive answers he claims resulted in his
not being able to obtain a fair trial.
The first exchange complained of occurred when the prosecutor
was questioning Mrs. Collins:
Q. Early on you wanted to indicate about some things. Did you
ever receive any property back on the 1988 motorcycle?
Q. Okay. What property did you receive back?
A. We found the front end. Gentleman brought the front end
Q. Okay. Was it Mr. Kuebel that brought it back?
A. Oh, no. Oh, no.
(Defense counsel): I'm going to object to the tone of
that answer, Your Honor. It's implying something towards
THE COURT: Okay. Sustained. Ma'am, please avoid -- Just
answer the questions, please.
THE WITNESS: Okay.
second exchange took place later as defense counsel was cross
examining Mrs. Collins:
Q. Okay. All right. But the engine and the front end are
A. The front end was returned because he sold it to somebody.
(DEFENSE COUNSEL). Okay. I'm going to object to that,
Your Honor. I don't know the basis for --
THE COURT. Well, yeah. Ladies and gentlemen, disregard her
last statement. So ...