Brown v. State

2004 WY 57, 90 P.3d 98, 2004 Wyo. LEXIS 69, 2004 WL 1092284
CourtWyoming Supreme Court
DecidedMay 18, 2004
Docket02-257
StatusPublished
Cited by6 cases

This text of 2004 WY 57 (Brown v. State) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. State, 2004 WY 57, 90 P.3d 98, 2004 Wyo. LEXIS 69, 2004 WL 1092284 (Wyo. 2004).

Opinion

VOIGT, Justice.

[¶ 1] In June 2002, a Natrona County jury found the appellant, Rodney Lorenzo Brown, guilty of felony larceny, a violation of Wyo. Stat. Ann. § 6-3^102(a) and (c)(i) (Lex-isNexis 2003), and misdemeanor possession of marijuana, a violation of Wyo. Stat. Ann. § 35-7-1031(c) (LexisNexis 2003). On appeal, the appellant contends that the evidence was insufficient to sustain his felony larceny conviction, that several witnesses testified to matters for which they had no personal knowledge and their testimony was speculative, irrelevant, and prejudicial, and that his trial counsel was ineffective in not objecting to this witness testimony. We affirm.

ISSUES

1. Was the evidence presented at trial insufficient to support appellant’s grand larceny conviction?

2. Did plain error occur at trial when two State witnesses testified as to their impressions, opinions and beliefs of what occurred on the videotape, thereby invading the province of the jury, and when another State witness testified to matters of which she had no personal knowledge?

3. Did defense counsel render ineffective assistance of counsel in failing to object to testimony at trial?

FACTS

[¶ 2] On the morning of January 7, 2002, Ayres Jewelers’ employee Dawn Miller (Miller) placed a necklace and attached tanzanite pendant (necklace) in a display case near the store’s front door, and closed the display ease. 1 The necklace, with a retail value of $3,700.00, was mounted on a bust. Miller positioned the bust in the display case so that it faced toward the street outside the front of the store (the case was situated so it could be viewed from the sidewalk outside the store). The display case had two sliding glass doors, which doors were not locked. Miller centered the bust on the right side of the display ease (as one faces the case from inside the store), closest to the right-hand sliding glass door. According to Miller, the right-hand sliding glass door could be opened easily “without pressing your fingers against it,” it “slides very easily.” Dan Halferty, the store manager, added that the right-hand sliding glass door could be “opened with a shoulder or elbow....” 2

[¶ 3] Mary Ann Stratton (Stratton), another store employee, went to lunch at 12:00 p.m. on January 7th. Miller had no reason to believe that the bust had been disturbed prior to noon January 7th, nor was she aware of anyone that expressed a particular interest in the necklace that day. According to Miller, employees customarily “look at everything” when they leave; “we’re so familiar with the items that, for a case to be opened slightly or something slightly out of line from the way we set it out, it’s [immediately] noticeable.” Halferty similarly testified to his, and the employees’, customary practices:

A. Anytime that we walk by a display case, ... it’s common practice to check to see what things look like, to see where they are, just to make sure the subjects haven’t been moved or tipped over, that it’s in full view of everybody’s vision, especially of the street; because that’s some *101 thing that we can’t see specifically from in the store, because all of the merchandise faces outward. So if you were to walk up and look at the case from the back, hence, again, you wouldn’t see anything; there’s nothing there to look at; it all faces towards the street.
Q. And again, when you return from lunch, is it the habit of the employees to check the condition of those cases?
A. Yes.

[¶ 4] Miller recalled a “fairly good lunch rush” January 7th. A “man of color” (later identified as the appellant) and a woman entered the store between 12:35 p.m. and 12:40 p.m., while Miller was assisting another customer. The man “stayed down [front] by the door” most of the time, while the woman came further into the store and began looking through cases. Miller noticed the man “wandering around a little bit by the door” and the woman said she was “just looking.” They ultimately left separately, without making a purchase. Halferty testified that, based on a videotape obtained from the store’s security system, the man and the woman were in the store less than two minutes.

[¶ 5] Stratton returned to the store about 12:55 p.m. and, according to Miller, Stratton noticed that the front display case’s right-hand sliding glass door was open and the bust was turned, with no necklace. Miller also observed firsthand that the bust was turned. The security system videotape shows that by 1:05 p.m., two or three store employees were conferencing and by 1:25 p.m., it was “plainly obvious” that the employees had begun searching for the missing necklace.

[¶ 6] Ann Bartels, the appellant’s wife at the time, testified that on January 7th, she accompanied the appellant to Ayres Jewelers to look at wedding rings. According to Bar-tels, the appellant wore jeans, a gray sweatshirt, and a leather coat. He usually also wore a Saints football team hat. The two left the store and decided to drive to another location for lunch. On the way, Bartels observed an inch of gold chain in the appellant’s pocket. That made Bartels angry because if the appellant “took something from a jewelry store, that wasn’t right.”

[¶ 7] Bartels recalled telling a detective that the chain she observed in the appellant’s pocket looked like the same chain that was depicted in a photograph the detective showed her, but testified that she could not say the two were one and the same because she did not see the whole necklace or the whole chain that was in the appellant’s pocket. She also claimed that the detective “kept trying to tell me that he wanted me to say that I knew that that was the necklace for sure.” Casper Police Department Detective Derrick Dietz (Dietz) testified that he showed Bartels a photograph of the stolen necklace, and Bartels stated that the chain in the photograph looked “very similar” to what she had observed in the appellant’s pocket, and with respect to the distinctive herringbone design of the stolen necklace, Bartels stated that it was the “right design, and the basic size of this chain would be what she had seen.”

[¶ 8] Based on information obtained from Bartels and the jewelry store’s security system videotape, Dietz was able to identify specific clothing that the appellant was wearing the day of the theft, including a Saints hat, a gray hooded sweater-type jacket or shirt with blue stripes down the arms, and a dark coat. While executing a search warrant in the appellant’s bedroom, Dietz discovered a Saints hat, a gray hooded sweater with blue stripes down the arms, and several dark jackets. The officer never located the stolen necklace. Dietz then interviewed the appellant, who denied any involvement in the theft and denied being at the jewelry store January 7th. When confronted with pictures obtained from the store’s security system videotape, the appellant admitted to having been in the jewelry store, but otherwise denied involvement in the theft.

[¶ 9] The appellant chose to testify at trial. He testified that Bartels lost her wedding ring, so the two were looking at wedding rings on January 7th. Upon entering the Ayres Jewelers store, Bartels went to the counter.

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Bluebook (online)
2004 WY 57, 90 P.3d 98, 2004 Wyo. LEXIS 69, 2004 WL 1092284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-state-wyo-2004.