Terri Ann Payseno

2014 WY 108, 332 P.3d 1176, 2014 Wyo. LEXIS 124, 2014 WL 4243776
CourtWyoming Supreme Court
DecidedAugust 28, 2014
DocketS-13-0224
StatusPublished
Cited by10 cases

This text of 2014 WY 108 (Terri Ann Payseno) 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
Terri Ann Payseno, 2014 WY 108, 332 P.3d 1176, 2014 Wyo. LEXIS 124, 2014 WL 4243776 (Wyo. 2014).

Opinion

KITE, Justice.

[¶ 1] Terri Ann Payseno was convicted in Hot Springs County, Wyoming of three of fenses involving the theft and subsequent sale of two saddles to a pawn shop. Ms. Payseno appeals, claiming the district court abused its discretion when it admitted, under W.R.E. 404(b), evidence that she pawned another saddle which allegedly belonged to her sister.

[T2] We conclude the evidence was not properly admitted but Ms. Payseno was not prejudiced by the error. affirm. Consequently, we

ISSUE

[¶ 3] Ms. Payseno presents a single issue on appeal:

I. Did the district court abuse its discretion in admitting into evidence testimony of an irrelevant alleged theft in violation[] of the requirements outlined in W.R.E. 404(b)?

The State presents the same issue, though it is expressed in greater detail.

FACTS

[T4] In the Spring of 2012, Ms. Payseno worked for Rocky and Charlie McClintock at a convenience store in Thermopolis, Wyoming. She also took care of the MeClintocks' home, which was located outside of Thermop-olis, while they were away for a few days in April 2012.

[¶ 5] Tracy Loughlin kept his horses and horse trailer at the McClintocks' place. The trailer contained a tack compartment where he stored his saddles. On July 28, 2012, Mr. Loughlin went to a roping. After returning his horses and the trailer to the McCilintocks' place, he left town for two weeks to work in the oilfields of North Dakota. On August 14, 2012, he discovered two of his saddles were missing from the trailer tack compartment. The saddles had been purchased from the White Horse Country Store in Thermopolis and were stamped with the White Horse mark.

[¶ 6] Mr. Loughlin reported the missing saddles to law enforcement, and Lieutenant Daniel Pebbles of the Hot Springs County Sheriffs Office investigated. Lt. Pebbles checked the local pawn shops to see if any White Horse saddles had recently been pawned or sold and learned about an on-line service showing pawned items. Using the service, he discovered two saddles matching the descriptions of Mr. Loughlin's missing saddles had been sold to a pawn shop in Billings, Montana on July 30, 201%. The pawn shop documents identified the person who sold the saddles as Ms. Payseno, and *1179 included her statement that she had owned the saddles for two years.

[¶ 7] Lt. Pebbles called the telephone number on the sales ticket and reached Ms. Payseno. He interviewed her at the law enforcement center and asked whether she had recently pawned anything. She explained that she had purchased two saddles for $300 from "some guy" at Maverick, who she described as a "young dope-head." She claimed not to know the young man's name or where he had obtained the saddles. Ms. Payseno told Lt. Pebbles that she took the saddles to Billings and sold them to a pawn shop for $600. She also told him that she had pawned her own saddle in Riverton in August 2012.

[¶ 8] Ms. Payseno's sister, Kim Dooper, claimed the saddle pawned in Riverton belonged to her. Ms. Dooper stated Ms. Pay-seno had given her the saddle years before and she had loaned the saddle back to Ms. Payseno in the spring or early summer of 2012 so she could use it for roping. After learning it had been pawned, Ms. Dooper went to Riverton and retrieved the saddle from the pawn shop.

[¶ 9] The State charged Ms. Payseno with three crimes regarding the theft and sale of Mr. Loughlin's saddles: larceny; wrongful disposal of property; and burglary. In response to Ms. Payseno's demand for notice of the State's intent to offer other bad acts evidence under W.R.E. 404(b), the State announced it was going to offer the following evidence: "Charges and/or prior bad acts: Report by Kim Dooper to the Cody Police Department, dated August 29, 2012, regarding the theft, possession and disposing of a saddle owned by Kim Dooper at the Double C Pawn Shop in Riverton, Wyoming." The State offered the evidence for a number of purposes, including: plan, motive, opportunity, intent, preparation, knowledge, identity, or absence of mistake or accident.

[¶ 10] Ms. Payseno filed a motion in li-mine to exclude the other bad acts evidence, asserting it was not offered for a proper purpose but only to show that she had a disposition to commit crimes. She also asserted it was irrelevant and unfairly prejudicial. The district court held a hearing on the other bad acts evidence prior to trial, Ms. Payse-no told law enforcement that she had purchased the saddles belonging to Mr. Loughlin from someone in the Maverick parking lot and sold them to a pawn shop in Billings, but she did not know they were stolen. The State urged the evidence of Ms. Payseno pawning her sister's saddle in Riverton would rebut her assertion that she was mistaken as to the origin of the two saddles sold in Billings and would show "motive, opportunity, intent, plan, knowledge, and absence of mistake or accident." The defense asserted the saddle pawned in Riverton involved a family dispute, no charges had ever been filed, and the State was offering the evidence for an "improper purpose." After the district court directed the prosecutor to be more specific about the purpose or purposes of the evidence, she argued it pertained to Ms. Pay-seno's preparation "in terms of the process by which one pawns, the process by which one, you know, gets-takes an item to a pawn shop, and how that process [ ] worked." The defense countered that pawning an item does not indicate preparation.

[¶ 11] The district court ruled that it was going to admit the other bad acts evidence as relevant to the wrongful disposal of stolen property charge. It reasoned: "The process of pawning is similar and also goes to the lack ofr] absence of mistake or accident as it relates to that method of disposing of property, so I will allow it for that reason, and only for that reason." However, the order entered by the district court seemed to provide more general grounds for admission:

THE COURT HEREBY MAKES THE FOLLOWING FINDINGS OF FACT:
1. The State seeks to introduce in its case-in-chief, evidence regarding the theft and pawn of Kim Dooper's saddle in or around August 201[2].
2. The proper basis for the introduction of the evidence is it tends directly to prove or disprove a consequential fact such as the absence of accident or mistake, planning and knowledge of how and where to dispose of stolen property.
*1180 3. The probative value of the evidence is not substantially outweighed by its potential for unfair prejudice. The evidence is probative and relevant to the crime as charged in Count II-Wrongful Buying, Receiving, Concealing or Disposing of Property.
The defendant or the State may request and propose a limiting jury instruction be given to the jury prior to deliberation.

[T12] At trial, the district court allowed the State to play a video and audio recording of Lt. Pebblesg' interview with Ms. Payseno at the law enforcement center. Defense counsel objected to the recording on several bases, one being that it included impermissible other bad acts evidence of Ms. Payseno pawning Ms. Dooper's saddle.

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Cite This Page — Counsel Stack

Bluebook (online)
2014 WY 108, 332 P.3d 1176, 2014 Wyo. LEXIS 124, 2014 WL 4243776, Counsel Stack Legal Research, https://law.counselstack.com/opinion/terri-ann-payseno-wyo-2014.