Wenger v. State

2007 WY 121, 163 P.3d 824, 2007 Wyo. LEXIS 130, 2007 WL 2188141
CourtWyoming Supreme Court
DecidedAugust 1, 2007
Docket06-90
StatusPublished
Cited by3 cases

This text of 2007 WY 121 (Wenger 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
Wenger v. State, 2007 WY 121, 163 P.3d 824, 2007 Wyo. LEXIS 130, 2007 WL 2188141 (Wyo. 2007).

Opinion

KITE, Justice.

[T1] A jury convicted Norman Howard Wenger of one count of conspiring to engage in a clandestine laboratory operation and one count of aiding another person to engage in such an operation. The trial court sentenced him to two concurrent prison sentences of two to eight years. Mr. Wenger claims the trial court erred in failing to merge His convictions for sentencing purposes. We reverse the judgment and sentence, but not for the reason advanced by Mr. Wenger. Rather, we hold that Wyo. Stat. Ann. § 85-7-1059(a)(iv) (LexisNexis 2007), the statute under which he was convicted, was intended to describe alternative means of committing the same offense and does not support separate convictions for each act constituting the offense. We remand to the district court for entry of a judgment and sentence finding Mr. Wenger guilty of one count in violation of § 35-7-1059(a)iv) and imposing one sentence. ~

ISSUES

[121 The determinative issue is whether the legislature intended § 85-7-1059(a)iv), which prohibits conspiring with or aiding another to engage in a clandestine laboratory operation, to describe alternative means of *825 committing one offense such that it supports only one conviction and one sentence.

FACTS

In December 2004, Mr. Wenger met Robert Holzheuser and allowed him to move into an apartment he was renting in Rawlins, Wyoming. On February 8, 2005, Mr. Wen-ger was at the apartment when Mr. Holzheu-ser and two companions arrived. The four individuals smoked methamphetamine together.

That same evening, Rawlins police officer William Hill was conducting surveillance on the apartment in connection with reports from two individuals that they had purchased methamphetamine from Mr. Wen-ger. Officer Hill observed Keith Nulle drive up to the apartment, go inside for about ten minutes,. and then drive away. Officer Hill checked Mr. Nulle's driving record and learned that his license was suspended. Officer Hill pulled Mr. Nulle over, placed him under arrest for driving under suspension, searched him and found methamphetamine inside a cigarette pack he was carrying.

Based on the information that Mr. Wenger had sold methamphetamine to others and the methamphetamine found on Mr. Nulle after leaving Mr. Wenger's apartment, Officer Hill obtained a warrant to search the apartment. He and five other law enforcement officers executed the warrant later that same night. The officers knocked on the apartment door and, when no one responded, they broke down the door. Upon entering the apartment, the officers found four people in the living room, including Mr. Wenger, and arrested them. The officers also found methamphetamine, a mini torch, pipes, a car battery with the caps off hooked to a charger, a bottle of acetone, and other material associated with the manufacture of methamphetamine. Additionally, the officers noticed a strong chemical smell in the apartment.

[T6] Detective Mike Picerno was called to the scene. After inspecting the apartment, Detective Picerno was concerned it was being used as a methamphetamine manufacturing laboratory. He contacted the Wyoming Division of Criminal Investigation (DCI), the ageney trained and experienced in working with clandestine laboratories. Because of safety concerns, Detective Picerno removed everyone from the premises and secured the apartment. He interviewed Mr. Wenger, who indicated the items found in the apartment belonged to Mr. Holzheuser. Mr. Wenger also stated that he used methamphetamine supplied to him by Mr. Holzheu-ser in exchange for use of the apartment. He also stated that he, Mr. Holzheuser and the other two individuals had smoked methamphetamine that evening before the police arrived. Subsequent searches of the apartment revealed more items associated with the manufacture of methamphetamine.

Mr. Wenger was charged with one count of conspiring with another to engage in a clandestine laboratory operation in violation of § 85-7-1059(a)(iv) and a second count of aiding another to engage in a clandestine laboratory operation in violation of the same statute. After a two day trial, a jury found Mr. Wenger guilty on both counts. The district court sentenced Mr. Wenger to a term of two to eight years in the state penitentiary on the conspiracy conviction and a term of two to eight years on the aiding conviction with the two terms to be served concurrently.: '

DISCUSSION

Mr. Wenger claims that the district court's failure to merge his convie-tions at sentencing violated his right to be free from double jeopardy because the effect of the sentence is to punish him twice for a single offense. The State responds that Mr. Wenger was convicted of two separate and distinct offenses and the district court properly declined to merge the sentences. Neither party addresses the issue we find determinative: Whether the legislature intended the statute to describe alternative means of committing a single offense supporting a single conviction and sentence, or whether the legislature instead intended to punish each act described in the statute separately, permitting separate convictions and sentences.

The statute which was the basis for both of Mr. Wenger's convictions provides:

*826 (a) It is unlawful for any person to knowingly or intentionally:
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(iv) Conspire with or aid another to engage in a clandestine laboratory operation.

Section 35-7-1059(a)(iv). The jury was instructed that in order to find Mr. Wenger guilty of the act of conspiracy described in the statute, the State had to prove each of the following elements beyond a reasonable doubt:

1. On or about the 9th day of February, 2005
2. In Carbon County, Wyoming
3. The Defendant, Norman Howard Wen-ger
4. Knowingly and intentionally agreed with one or more persons
5. That they or one of them would commit the crime of engaging in a clandestine laboratory operation;
6. One or more of them did an overt act in Carbon County, Wyoming, to effect the objective of the agreement.

The jury was further instructed that to find Mr. Wenger guilty of the act of aiding de-seribed in the statute the State had to prove each of the following elements beyond a reasonable doubt:

1. On or about the 9th day of February, 2005
2. In Carbon County, Wyoming
3. The Defendant, Norman Howard Wen-ger
4. Did knowingly or intentionally aid another
5. To engage in a clandestine laboratory operation.

The jury found Mr. Wenger guilty of both acts described in the statute. The district court entered a judgment and sentence on the verdict, adjudging Mr. Wenger guilty of one count of conspiring with another to engage in a clandestine laboratory operation and a separate count of aiding another to engage in such an operation and sentencing him to two concurrent terms of imprisonment.

[1 10] In Duffy v.

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Bluebook (online)
2007 WY 121, 163 P.3d 824, 2007 Wyo. LEXIS 130, 2007 WL 2188141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wenger-v-state-wyo-2007.