Garcia v. State

777 P.2d 1091, 1989 Wyo. LEXIS 177, 1989 WL 76620

Opinions

CARDINE, Chief Justice.

Glenn Eddie Garcia was convicted of one count of concealing stolen property in violation of W.S. 6-3-403(a)(i), one count of aggravated assault in violation of W.S. 6-2-502(a)(ii), and two counts of interference with a police officer in violation of W.S. 6-5-204(a). On appeal, he contends that he was improperly charged with concealing stolen property, that the trial court erroneously admitted evidence of his prior bad acts, and that the trial court erroneously denied his motion for acquittal.

We affirm.

Shortly before 2:30 p.m. on November 1, 1987, a dark blue 1984 Toyota Célica was stolen in Laramie, Wyoming. At approximately 10:20 p.m. that evening, Officer Bo-mar of the Cheyenne Police Department saw a vehicle matching the description of the stolen vehicle and, with Officer Nicholl providing backup in a separate patrol car, stopped the suspect vehicle. As the officers approached the Toyota, the driver, later identified as appellant Garcia, sped off into south Cheyenne, beginning a high speed chase that was to end nearly forty minutes later near Wellington, Colorado.

Early in the chase Officer Nicholl temporarily fell prey to appellant’s evasive actions and, attempting to rejoin the pursuit, turned north onto Van Lennen Avenue with lights and sirens blaring. He quickly realized that appellant had turned off the Toyota’s headlights and was headed down the wrong side of the street on a high speed collision course with his patrol vehicle. When appellant failed to move into the proper lane, Nicholl was forced to swerve off the left edge of the street to avoid the imminent collision. Shortly after this incident, Officer Bomar and the Toyota collided as the officer attempted to block appellant’s escape.

As more officers became involved in the effort to contain Garcia, it became increasingly evident that he would not voluntarily abandon his flight. When Sergeant Ren-ner attempted to intercept appellant on House Avenue, appellant entered Renner’s lane and forced him into the curb. Shortly thereafter appellant proceeded into a non-incorporated portion of Laramie County and headed for 1-25. As speeds increased, Officer Stone attempted to pass appellant and block his progress. Appellant looked at the officer, swerved the Toyota towards the patrol vehicle and forced Stone into a ditch. Pursuit continued through the county and south along 1-25, until a member of the Colorado State Patrol finally succeeded in forcing appellant off the highway.

Appellant was arrested and brought to trial on the following charges:

COUNT 1, aggravated assault against Officer Nicholl;

COUNT 2, aggravated assault against Officer Stone;

COUNT 3, aggravated assault against Sergeant Renner;

COUNT 4, concealing stolen property of a value greater than $500.

The jury found him guilty of Counts 1 and 4 but, as to Counts 2 and 3, found him guilty only of the lesser included offense of interfering with a police officer. The trial court imposed and suspended two one-year sentences relating to Counts 2 and 3 and on the remaining charges sentenced him to concurrent terms of four and one-half to six years in the Wyoming State Penitentiary-

CONCEALING STOLEN PROPERTY

Prior to trial, appellant submitted a “Motion to Dismiss or for Judgment of Acquittal oh Count IV.” In support of that motion, he admitted that he stole the Toyota and argued that a thief could not be prosecuted for the possessory offenses of receiving or concealing stolen goods. He reiterated this position as part of a motion to acquit following the State’s presentation of evidence and raises it once again on appeal. We find no merit in his argument.

Appellant cites much authority for the proposition that a defendant cannot be prosecuted, convicted, and sentenced both for the larceny of property and the receipt or concealment of that same property. He correctly notes that such a situation potentially offends both state and federal constitutional proscriptions against double jeopardy, in that the possessory offenses are necessarily committed when one steals property. A defendant cannot receive multiple punishments for a single offense. See generally Howard v. State, 762 P.2d 28 (Wyo.1988); Schultz v. State, 751 P.2d 367 (Wyo.1988); Birr v. State, 744 P.2d 1117 (Wyo.1987); Tuggle v. State, 733 P.2d 610 (Wyo.1987). However, appellant’s argument, and the authorities cited, are inappo-site here. Appellant was merely charged with concealing stolen property. No attempt was made to try or punish him for the theft of the Toyota.

He attempts to shore up this obvious weakness in his argument by contending that the possessory offenses of receiving and concealing were intended by the legislature to reach only a thief’s accessories after the fact. He cites no cogent authority in support of this position, however, and ignores past decisions of this court suggesting a contrary conclusion. Where evidence strongly indicated the defendant’s involvement in the underlying theft, we upheld his conviction for receiving and concealing stolen oil field drill bits based on his unexplained possession of those bits. Tageant v. State, 673 P.2d 651 (Wyo.1983); see also Capshaw v. State, 737 P.2d 740 (Wyo.1987). Furthermore, we expressly rejected the argument that an admitted thief could not be charged and convicted of concealing the stolen property in Pote v. State, 695 P.2d 617, 622 (Wyo.1985). If we were to adopt appellant’s argument, the State would be required to offer evidence that someone other than the possessor of stolen goods committed the actual theft. This court has repeatedly rejected such a requirement. See generally State v. Callaway, 72 Wyo. 509, 267 P.2d 970 (1954); Curran v. State, 12 Wyo. 553, 76 P. 577 (1904). Appellant fails to consider that the evil which the legislature intended to address in this instance may just as well have been the mere wrongful possession and use of stolen property. The evil character of such possessory acts does not disappear when an unproved thief engages in such acts only to magically reappear when a fence or some other third party engages in similar conduct. Where the thief can be proven to have committed the lesser offense, we will not permit him to obstruct prosecution by giving partial proof of greater guilt. Appellant was properly charged and prosecuted for concealing stolen property.

Appellant’s reassertion of this issue after the State’s presentation of its case, however, raises the additional question of whether sufficient evidence was produced on this offense to overcome his motion for acquittal. We have frequently articulated our standard of review with respect to that question. A motion for acquittal should be denied where, viewing the evidence in the light most favorable to the State, a reasonable inference can be drawn from that evidence that the defendant is guilty beyond a reasonable doubt. The motion should be granted, however, where there is such a lack of substantial evidence such that a reasonable juror must harbor a reasonable doubt as to the existence of an essential element of the crime. Washington v. State, 751 P.2d 384, 386-87 (Wyo.1988); Abeyta v. State, 705 P.2d 330, 332 (Wyo.1985); Russell v. State, 583 P.2d 690, 693-94 (Wyo.1978).

The elements of the offense with which appellant was charged are set forth in W.S. 6-3-403, which provides in pertinent part:

“(a) A person who * * * conceals * * * property which he knows, believes or has reasonable cause to believe was obtained in violation of law is guilty of:

“(i) A felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,-000.00), or both, if the value of the property is five hundred dollars ($500.00) or more.”

Thus, to overcome appellant’s motion, the State was required to produce evidence that, at the time and place alleged in the charging documents, appellant: (1) concealed property; (2) of a value of at least five hundred dollars; (3) with the knowledge, belief, or reasonable cause to believe that the property had been illegally obtained.

Appellant concealed the Toyota, for purposes of the statute, if he placed it out of the owner’s sight or prevented the owner from recognizing it. However, concealment does not require an effort to disguise or hide the vehicle; it merely requires that appellant drove the vehicle away from where the owner was likely to discover it. Hunter v. State, 704 P.2d 713, 717-18 (Wyo.1985). Appellant’s possession of the Toyota in Cheyenne, some eight hours after its theft in Laramie, is circumstantial evidence sufficient to make a prima facie showing that he concealed the car. By demonstrating that it was three years old and cost over two thousand dollars to repair, the State also provided sufficient evidence of the car’s value. Finally, the State introduced considerable evidence to indicate appellant’s awareness that the vehicle had been illegally obtained. Officer Zukauckas testified to appellant’s admission that he took the Toyota in Laramie. The strongest possible proof that a car had been stolen and that a defendant knew that to be the case is provided by evidence of his participation in the theft. Pote, 695 P.2d at 622. Additionally, appellant’s evasive actions provide strong circumstantial evidence of his guilty state of mind. The district court correctly denied appellant’s motion to acquit with respect to the charge of concealing stolen property.

AGGRAVATED ASSAULT

We reach a similar conclusion with respect to the motion insofar as it relates to appellant’s alleged assault against Officer Nicholl. The statute under which he was' charged, W.S. 6-2-502(a)(ii), provides:

“(a) A person is guilty of aggravated assault and battery if he:

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“(ii) Attempts to cause, or intentionally or knowingly causes bodily injury to another with a deadly weapon.”

Appellant contends only that the State’s evidence was insufficient regarding his specific intent to cause bodily injury to Officer Nicholl. His argument relies heavily upon a superficial reading of our decision in Fuller v. State, 568 P.2d 900 (Wyo.1977). That argument is ill-conceived.

In Fuller we explained that, although the law presumes an individual to generally intend the natural consequences of his actions, it will not presume that he specifically intended any particular consequence. That is, a mere showing that certain conduct occurred which produced a particular result is legally sufficient to establish the actor’s general intent. Thus, we explained that the bare fact of assaultive behavior will not give rise to a presumption that an assailant had the specific intent to cause any particular harm. Id. at 903-04. We also noted, however, that such specific intent may be properly proven by reasonable inferences from the character of such acts and their surrounding circumstances. In particular, the specifics of a defendant’s conduct and other circumstantial evidence may permit the jury to infer that he acted with the specific intent to cause bodily injury. Id. at 904. See also Johnston v. State, 747 P.2d 1132, 1135-36 (Wyo.1987); Simmons v. State, 674 P.2d 1294, 1297 (Wyo.1984); Brightwell v. State, 631 P.2d 1048, 1050 (Wyo. 1981). In the present case, the trial court’s “Jury Instruction No. 8” properly informed the jury that such inferences were permissible by stating, “[Specific intent] may be determined from all the facts and circumstances surrounding the case.” Appellant correctly notes that specific intent cannot be proved by presumption but conveniently ignores the State’s proof of that intent by the permissible means of inference from circumstantial evidence.

The transcript of appellant’s trial is replete with testimony that, although apparently in full control of the Toyota, appellant repeatedly directed that potentially dangerous weapon towards a number of police officers. In each of those instances, either a collision occurred or the particular officer was forced to swerve off the roadway to avoid a collision. Additionally, Officer Zukauckas testified to a post-arrest interview, during which appellant stated that the officers were lucky he did not kill them. Viewing only the State’s evidence, and in the light most favorable to the State, we find that this evidence would not necessarily cause a reasonable jury to harbor a reasonable doubt as to appellant’s specific intent to cause bodily injury to Officer Nic-holl. To the contrary, such a jury could reasonably infer from this evidence the existence of such intent beyond a reasonable doubt. The question is not whether other inferences would be possible. Rather, the question is whether a rational jury could possibly make this particular inference without entertaining a reasonable doubt as to the truth of the inferred fact. Washington, 751 P.2d at 386-87; Abeyta, 705 P.2d at 332-33. The district court properly denied appellant’s motion for acquittal.

PRIOR BAD ACTS

During the presentation of its case, the State attempted to introduce the testimony of Officer Swezey concerning an altercation with appellant which occurred some two years prior to the date of the charged offenses. Appellant, then fifteen or sixteen years old, allegedly struck the officer when he tried to quell a disturbance at the home of appellant’s father. Appellant objected that the State was making an improper use of his prior bad acts, contrary to the dictates of W.R.E. 404(b). The trial court, however, agreed with the prosecutor that such evidence was relevant to the issue of whether appellant mistakenly, accidentally or intentionally performed the acts that formed the basis of the three counts of aggravated assault. The court, therefore, overruled appellant’s objection and admitted the testimony.

Our recent decision in Coleman v. State, 741 P.2d 99 (Wyo.1987), provides a comprehensive outline of our position with respect to the admission of prior bad acts evidence. We noted in that decision that, while such evidence is not admissible solely to prove that a defendant possessed a particular character trait and that his present acts were a further reflection of that character, prior bad acts are admissible for certain purposes delineated by W.R.E. 404(b). We also explained that the trial court, in admitting such evidence, must perform the balancing test of W.R.E. 403, weighing the probative value of that evidence against the probability that it will unfairly prejudice or mislead the jury. Id. at 102.

As a means of aiding the district courts in their analysis of the Rule 404(b) problem, we set forth a number of factors to be considered in determining the admissibility of prior bad acts. Many of those factors were initially adopted from United States v. Myers, 550 F.2d 1036, 42 A.L.R. Fed. 855 (5th Cir.1977), in Bishop v. State, 687 P.2d 242, 246 (Wyo.1984). They are:

1. The extent to which the prosecution plainly, clearly, and convincingly can prove the other similar crimes.

2. The remoteness in time of those crimes from the charged offense.

3. The extent to which the evidence of other crimes is introduced for a purpose sanctioned by W.R.E. 404(b).

4. The extent to which the element of the charged offense, that the evidence is introduced to prove, is actually at issue.

5. The extent to which the prosecution has a substantial need for the probative value of the evidence of other crimes.

Additionally, we adopted the following approach as set out in C. McCormick, McCormick on Evidence § 190 at 565 (3d ed. 1984):

“In deciding whether the danger of unfair prejudice and the like substantially outweighs the incremental probative value, a variety of matters must be considered, including the strength of the evidence as to the commission of the other crime, the similarities between the crimes, the interval of time that has elapsed between the crimes, the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence probably will rouse a jury to overmastering hostility.” Coleman, 741 P.2d at 104.

On review, this court gives considerable deference to the trial court’s discretionary balancing of these factors and its determination that the probative value of the prior bad acts outweighs its potential to unfairly prejudice the jury. Id. at 103-06. Thus, we will not reverse the trial court’s decision if its alleged error was harmless. We must be convinced a reasonable possibility exists that, had the evidence been excluded, the jury’s verdict would have been more favorable to the appellant. Bishop, 687 P.2d at 246-47; Stambaugh v. State, 613 P.2d 1237, 1240 (Wyo.1980). Such is not the case here.

The State introduced a substantial amount of circumstantial evidence probative of appellant’s intent to cause bodily injury to three officers. Those officers testified that on each occasion appellant sped toward them, making a dangerous collision inevitable had the officers not taken sudden evasive actions. In each instance, they testified to their belief that both appellant’s actions and their own responses necessitated by those actions created a serious risk that they would suffer bodily injury. Additionally, evidence was introduced of appellant’s post-arrest statements in which he expressed extreme hostility towards the officers who pursued him.

While this evidence does not overwhelmingly establish appellant’s intent to cause bodily harm, it is sufficient to convince us that appellant was not convicted because of his prior bad acts. An examination of the probative and prejudicial strength of the prior bad acts evidence, when considered against the jury’s actual decision concerning the three related assault charges, adds even further certainty to that conclusion. Though appellant’s assault on Officer Swezey was indeed relevant to his intent in the present case, the logical tendency of the former act to establish present intent is at best highly attenuated. The same can be said of its tendency to cause unfair prejudice. The actions of a fifteen year old boy defending his father, even from the legitimate exercise of police authority, cannot be said to be so inflammatory as to override the obvious perception that the events have little in common. Were we to assert that the jury had become so inflamed, we would be at a loss to explain why it was moved to find that appellant intended to injure only Officer Nicholl. That a similar intent was not found with respect to Officers Stone and Renner convinces us that something other than prejudice motivated the jury’s verdict.

The record reveals that the jury could easily have distinguished the incidents involving Stone and Renner from the near collision with Nicholl. When appellant, with his lights off but under full control of the vehicle, bore down on Officer Nicholl, the officer was not immediately aware of his presence and was seeking only to avoid appellant. Both Stone and Nicholl, however, were affirmatively attempting to block appellant’s progress at a time when appellant was allegedly trying to negotiate or recover from a high speed turn. The jury could rationally conclude that, in these latter instances, the actions of the police officers contributed every bit as much to the creation of a hazard as did appellant’s actions.

We cannot, and need not, determine whether the jury analyzed the facts of this case in such a manner. We only note that properly admitted evidence supports and harmonizes a verdict which would appear inconsistent if motivated solely by prejudice. We are therefore convinced that the jury was not unduly or unfairly influenced by the introduction of appellant's prior bad acts, and that it properly decided this case on the evidence which was properly before it. If there was error in this regard (we do not say there was), it was undoubtedly harmless.

Affirmed.

URBIGKIT, J., filed an opinion concurring in part and dissenting in part.