Summary 2012 WY 77
Summary of Decision May 31, 2012
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Case Name:
Guerrero v. State of Wyo.
Citation:
2012 WY 76
Docket Number: S-10-0263
Appeal from the District Court of Laramie
County, The Honorable Peter G. Arnold, Judge
Representing
Appellant (Defendant): Diane E.
Courselle, Director, and Brian Quinn, Student Intern, Defender Aid Program,
University of Wyoming College of Law.
Argument by Mr. Quinn.
Representing Appellee
(Plaintiff): Gregory A. Phillips,
Attorney General; David L. Delicath, Deputy Attorney General; D. Michael
Pauling, Senior Assistant Attorney General; Justin A. Daraie, Assistant
Attorney General. Argument by Mr.
Daraie.
Date of Decision: May 31, 2012
Facts: Appellant
was employed as a restaurant where servers were required to use the
restaurant’s computers to enter food orders and generate customer checks. Because
the computers do not hold cash, Appellant and the other servers at the
restaurant were required to hold money received from cash-paying customers
until the end of a shift. Another
employee observed Appellant apparently entering a manager’s code into the
computer, and reported the incident to her supervisor. Upon review of Appellant’s server records, the
supervisor discovered an inordinate number of voids and discounts that had
apparently gone unnoticed for over two years.
The server records indicated that Appellant had used a manager’s code to
enter voids and discounts on days when that manager was not working.
Following a law enforcement investigation, the
State charged Appellant with felony larceny.
In preparation for trial, Appellant proposed that the jury be required
to find that he “[s]tole, took and carried, led or drove away” property of
another with intent to deprive, echoing the language of Wyo. Stat. Ann. §
6-3-402(a). The State submitted a
proposed instruction requiring the jury to find that Appellant “took” property
of another. The district court, however,
drafted an instruction that would require the jury to find that Appellant “took
and carried away” property of another. At
the jury instruction conference, the district court altered its proposed jury
instruction by substituting “stole” for “took and carried away.” Appellant initially objected to the
modification, but subsequently withdrew the objection.
At trial, the State contended that Appellant
had been voiding and discounting customer orders without the customers’
knowledge, and retaining the difference between the full prices paid by the
customers and the discounted prices reflected on Appellant’s server reports. The Stat presented evidence that Appellant’s
server records showed that on many days the number of voids and discounts
attributable to Appellant surpassed the total entered by all other servers
working on those days. The evidence also
indicated, however, that the restaurant computer’s cashier program allowed
managers to alter or amend customer checks after they had been entered in the
computer.
After being instructed, the jury deliberated
and returned a guilty verdict.
The district court sentenced Appellant to
three to five years of imprisonment, and suspended that term of incarceration
in favor of seven years of supervised probation. Appellant did not initially appeal his
conviction and sentence, but subsequently petitioned this Court for a Writ of
Certiorari to reinstate his right to take a direct appeal. The Court granted Appellant’s petition in
full and restored Appellant’s right to appeal from the judgment. This appeal followed.
Issues: 1) Whether the district
court erred in failing to include the elements of “taking” and “carrying” in
the jury instruction setting forth the elements of larceny; and 2) Whether
there was sufficient evidence to support the conviction of felony larceny?
Holdings: The Court determined it did not need to
decide whether the instructional error was prejudicial to Appellant, because
the Court found that Appellant’s second issue, regarding the sufficiency of the
evidence, was dispositive. The Court
found that, because the State’s evidence did not establish that the money was
ever in the restaurant’s possession, Appellant’s activities could not have
constituted a taking under Wyo. Stat. Ann. § 6-3-402(a). Instead, the State’s evidence tended to show
that Appellant’s activities amounted to a conversion under Wyo. Stat. Ann. §
6-3-402(b), but Appellant was not charged with a violation of that
statute. As a result, even when the
evidence was viewed in the light most favorable to the State, and when all
reasonable inferences from the evidence are granted, the Court could not
conclude that the evidence was sufficient to show that Appellant’s activities
constituted a taking, as opposed to a conversion, of money belonging to the restaurant
The Court reversed
Appellant’s conviction and remanded with directions that the district court
enter a judgment finding Appellant not guilty of the crime charged.
J. Burke delivered the opinion for the court.
