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

URL:  http://www.courts.state.wy.us/Opinions.aspx

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.