Lee v. State

2003 WY 8, 61 P.3d 1225, 2003 WL 142222
CourtWyoming Supreme Court
DecidedJanuary 22, 2003
DocketNo. 01-186
StatusPublished
Cited by4 cases

This text of 2003 WY 8 (Lee 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
Lee v. State, 2003 WY 8, 61 P.3d 1225, 2003 WL 142222 (Wyo. 2003).

Opinion

LEHMAN, Justice.

[¶ 1] Dustin Allyn Lee, appellant, was found guilty by jury of felony possession of methamphetamine in excess of three grams. He seeks reversal of that conviction claiming the admission of physical characteristic evidence depicting appellant as an ongoing user of the drug was not relevant to the crime of possession of methamphetamine in excess of three grams. We affirm.

ISSUE

[¶ 2] Whether plain error was committed by the State when the investigating officer testified of his observation of round open sores on appellant’s face and body that are consistent with ongoing use of methamphetamine and are commonly referred to as “Crank Bugs.”

FACTS

[¶ 3] Officers and an ambulance were dispatched to a motel in Gillette after receiving a report that a man in one of the rooms was not responding to motel staff. A summary of the course of events upon the officers’ contact with appellant in the room indicates appellant’s appearance was ill, pasty, shaky, bloodshot and watering eyes with no odor of alcohol, difficulty in standing, and lack of coordination; admission to the officers of using methamphetamine; discovery of a plastic pen housing with a white powder residue found to contain methamphetamine; appellant’s production of a marijuana cigarette; a film canister containing .39 grams of methamphetamine rocks; and, finally, a plastic baggie containing 27.96 grams of rock methamphetamine.

[¶ 4] Appellant only denied knowledge of the plastic baggie containing 27.96 grams of methamphetamine. The appearance of appellant was discussed by each officer who testified and included some of the non-exhaustive attributions listed above. Appellant argues the testimony of the investigating officer’s observations of open sores on appellant’s face and body is not relevant to the possession of the 27.96 grams of rock methamphetamine.

[1227]*1227 STANDARD OF REVIEW

[IT 5] No objection to the testimony was made at trial; therefore, the plain error standard is at work requiring the appellant to make a three-part showing:

First, the record must clearly present the incident alleged to be error. Second, appellant must demonstrate that a clear and unequivocal rule of law was violated in a clear and obvious, not merely arguable, way. Last, appellant must prove that he was denied a substantial right resulting in material prejudice against him.

Ogden v. State, 2001 WY 109, ¶ 9, 34 P.3d 271, ¶ 9 (Wyo.2001) (quoting CB v. State, 749 P.2d 267, 268-69 (Wyo.1988)). See also Pearson v. State, 12 P.3d 686, 690 (Wyo. 2000).

DISCUSSION

[¶ 6] For context we quote the offending language:

Q. When you are sitting down there close to him looking at him, do you notice anything about his facial features, his arms, his body, his demeanor, other than that uncoordination that you’ve already described?
A. I noticed that his face was very badly pitted with small round open sores. A person would generally, I think, associate them with something like acne. But I later got a little better look at his entire upper torso and it was not consistent with acne.
[[Image here]]
Q. Did you ask him if he was under the influence of drugs or narcotics substances? A. Yes, I did.
Q. And did he respond in any manner?
A. Yes.
Q. What did he say?
A. He said he had used methamphetamine. And I had asked him if he had used any other drugs, and he said no, just methamphetamine. I asked him when the last time it was that he used it, and he said the night before.
Q. Did that start kind of clicking looking at his sores?
A. Yes, it did.
Q. Why is that?

A. Well, methamphetamine can produce — the technical term is formication. It’s called crank sores or crank bugs. And what it is is it’s a reaction to a false signal sent by the brain and the person begins to pick at a certain area of their body and picks open a very small area that would look like a pimple being dug open. Actually there was nothing there. There was no sore there to start with.

It’s formed from two things occurring sometimes simultaneously, sometimes on their own. One is that a person under the influence of methamphetamine may hallucinate and see actual crank bugs or actual small bugs on their skin. And they try to pick away that bug which continues to replace itself in the same spot. The other thing is that methamphetamine — what it’s doing in your brain is it’s releasing dope in a neuro transmitter and it’s sending out a false signal, an inverse signal, to the nerves and the nerve there at that particular point is sending out a signal that it’s being touched or being stimulated in some way. And the person will pick at that. What eventually occurs is the nerve ending is damaged. The signal goes away and the person leaves that particular spot alone. Later another false signal is sent or a hallucination or both and the person begins working at that spot and forms another small open ulcer on their person.

Q. We digressed a little bit, but we were — earlier you said you saw other parts of his body other than his face later on. Where did these other sores exist on the defendant that you know of?
A. On both arms and just a few on the chest and stomach area.

[¶ 7] For further enlightenment, the lack of objection to that testimony was followed by cross-examination of the officer which included the following exchange.

Q. Okay. Well, let me go over what you’ve said here. The defendant, when you got there, was basically using his hands like claws? He didn’t have any manipulation ability?
[1228]*1228A. That’s correct.
Q. He had those round sores on him? .
A. Yes. That’s correct.
Q. I’ve seen pictures. Pretty sorry sight, wasn’t he?
A. Yes, he was.

The picture referenced by appellant’s counsel was a photograph of appellant’s face and upper torso, the introduction of which was stipulated by the parties.

[¶ 8] We begin our analysis by according appellant our acknowledgment that the record clearly presents the incident alleged to be error. The second prong, however, of the plain error standard, requiring a demonstration that a clear and unequivocal rule of law was violated in a clear and obvious, not merely arguable way, falls, short of the mark. Appellant cites W.R.E. 401 as the unequivocal rule of law that was violated since the evidence regarding “crank bugs” was not relevant to prove appellant possessed over three grams of methamphetamine.

[¶ 9] A low threshold exists for determining that evidence is relevant.

Evidence is relevant if it has “any tendency to make the existence of any

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Bluebook (online)
2003 WY 8, 61 P.3d 1225, 2003 WL 142222, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lee-v-state-wyo-2003.