Bindner v. State

548 P.3d 285

2024 WY 53

Kenya Hunter BINDNER, Jr., Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

S-22-0295, S-23-0215

Supreme Court of Wyoming.

May 14, 2024

Appeal from the District Court of Campbell County, The Honorable Stuart S. Healy III, Judge

Representing Appellant: Office of the State Public Defender: Diane Lozano, Wyoming State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Sean H. Barrett, Senior Assistant Appellate Counsel. Argument by Mr. Barrett.

Representing Appellee: Bridget Hill, Attorney General; Jenny L. Craig, Deputy Attorney General; Kristen R. Jones, Senior Assistant Attorney General; John J. Woykovsky, Senior Assistant Attorney General. Argument by Mr. Woykovsky.

Before FOX, C.J., and KAUTZ ^*, BOOMGAARDEN, GRAY, and FENN, JJ.

FOX, Chief Justice.

[¶1] Kenya H. Bindner was convicted of possession of marijuana and possession of methamphetamine with intent to deliver. On appeal he challenges the sufficiency of the evidence to support his convictions and the district court’s ruling that he was not denied the effective assistance of counsel. We affirm.

ISSUES

[¶2] This appeal presents two issues:

1. Was the evidence sufficient to prove Mr. Bindner constructively possessed methamphetamine and marijuana?

2. Was Mr. Bindner denied the effective assistance of counsel when his attorney failed to investigate a potentially exculpatory witness statement?

FACTS

[¶3] At around 7:20 p.m. on January 12, 2022, deputies from the Campbell County Sheriff’s Office and agents from the Division of Criminal Investigation (DCI) executed a search warrant at a residence where Kenya Bindner lived with his girlfriend, Danielle Oster, and another roommate, Keerieann McMacken. The deputies knocked and announced themselves three times. After they received a report that someone inside was observed moving rapidly toward the back of the residence, they used a ram to force the door open.

[¶4] When the deputies entered, Mr. Bindner was standing about three feet from a coffee table just inside the doorway, and Ms. Oster was coming out of a bathroom in the back of the residence. Ms. McMacken was not in the home.

[¶5] In the bathroom where Ms. Oster had been, the search team found four Ziploc bags containing about thirty-one grams of methamphetamine floating in the toilet. On the coffee table, they found a red box containing over forty grams of methamphetamine and over twenty grams of marijuana. The methamphetamine consisted of large "chunks" or "shards" of crystal methamphetamine in a large Ziploc bag. The marijuana was divided into five plastic bags in a larger Ziploc bag.

[¶6] The search team also found drug paraphernalia in the residence. On the coffee table, they found small unused jewelers’ bags, commonly used to package controlled substances. Next to an adjacent couch, they found a scale of the type used to weigh controlled substances for sale. On the coffee table and throughout the residence, they found glass pipes and straws that can be used to smoke or ingest both methamphetamine and marijuana. By the front door, they found a whiteboard that appeared to be a "‘pay-owe’ sheet" listing buyers and what they owed.

[¶7] The State charged Mr. Bindner with one count of possession of methamphetamine with intent to deliver, one count of felony possession of methamphetamine, and one count of misdemeanor possession of marijuana. In its case management order, the district court ordered the parties to file with the court and serve upon all counsel, not less than three days before the pretrial conference, "a list of all witnesses (except rebuttal witnesses) to be called together with a short summary of the expected testimony of each[.]"

[¶8] In his pretrial memorandum, Mr. Bindner listed three witnesses, including Isaac McKenna. The summary of his testimony stated that he would "be able to testify as to his personal observations of the Defendant and the [searched] residence[.]" During the pretrial conference, the State sought clarification of the expected testimony of the defense witnesses. The district court’s memo- randum of the pretrial conference noted that "Defendant explained these witnesses will testify as to their personal knowledge regarding alleged drug use and sales of drugs at Defendant’s home."

[¶9] Mr. Bindner’s defense at trial was that while methamphetamine and marijuana were present in the residence, the drugs were not his and he did not possess them. To that end, Mr. Bindner testified on his own behalf and called Mr. McKenna as a witness. Before Mr. McKenna’s testimony, the State again raised concerns regarding the scope of his testimony and requested a proffer. Defense counsel proffered that Mr. McKenna would testify he had knowledge of the methamphetamine found on the coffee table and had seen it the day before the search in the possession of Ms. McMacken, Mr. Bindner’s roommate. The State objected to the previously undisclosed testimony and added that it also objected on W.R.C.P. 26.2 grounds because it had not received a written statement from Mr. McKenna. After defense counsel assured the district court its investigator had only just learned of Mr. McKenna’s information, and no written statements or notes existed, the court allowed Mr. McKenna’s testimony.

[¶10] Mr. McKenna testified he was good friends with Mr. Bindner and knew his girlfriend, Ms. Oster, and his other roommate, Ms. McMacken. He testified he recognized the shards of methamphetamine depicted in the State’s exhibit, and Ms. McMacken had it with her when she visited him at his home the evening before the search warrant was executed on Mr. Bindner’s residence. On cross-examination, the State questioned Mr. McKenna’s late disclosure of his information, and he responded that he had previously provided the information to defense counsel in a written statement.

[¶11] The State renewed its objection under W.R.C.P. 26.2. Defense counsel conceded that Mr. McKenna had provided a signed statement on April 22, 2022. He informed the district court that he thought the statement contained only a character reference when he had earlier told the court there was no written statement, but on closer review, he saw that it also included the information Mr. McKenna had just testified to. Defense counsel conceded the statement should have been produced in response to the State’s demand for discovery. The State asked that Mr. McKenna’s testimony be stricken pursuant to W.R.C.P. 26.2, and the court granted that request.

[¶12] The jury found Mr. Bindner guilty on all three counts. The district court dismissed the count for possession of methamphetamine on double jeopardy grounds and sentenced Mr. Bindner to a combined prison term of five to eight years on the remaining counts. Mr. Bindner timely appealed to this Court and also moved pursuant to W.R.A.P. 21 for a new trial based on a claim of ineffective assistance of counsel. This Court stayed briefing in Mr. Bindner’s appeal pending the outcome of his Rule 21 motion.

[¶13] In his Rule 21 motion, Mr. Bindner claimed his counsel was deficient in his failure to produce Mr. McKenna’s written statement in response to the State’s demand and in incorrectly representing to the district court that no statement existed. He argued these deficiencies led to the exclusion of Mr. McKenna’s testimony and prejudiced his defense. After an evidentiary hearing, the court concluded that defense counsel’s performance was deficient in that he failed to reasonably investigate Mr. McKenna’s April 22, 2022, statement, which ultimately led the court to strike Mr. McKenna’s testimony. The court concluded, however, that based on the record, Mr. Bindner had not demonstrated a reasonable probability that the result of his trial would have been different. Based on his failure to show prejudice, the court denied Mr. Bindner’s motion for a new trial.

[¶14] Mr. Bindner timely appealed the district court’s denial of his Rule 21 motion, and we consolidated his appeals.

DISCUSSION

I. The evidence was sufficient to prove Mr. Bindner constructively possessed methamphetamine and marijuana.

[1–6] [¶15] Mr. Bindner does not challenge the sufficiency of the evidence to establish an intent to deliver, but he claims the evidence was insufficient to support a finding that he had constructive possession of the methamphetamine and marijuana found in his residence. In considering the sufficiency of the evidence claim, we "need not determine whether the evidence established the defendant’s guilt beyond a reasonable doubt." Borja v. State, 2023 WY 12, ¶ 8, 523 P.3d 1212, 1215 (Wyo. 2023) (citing Mitchell v. State, 2020 WY 142, ¶ 33, 476 P.3d 224, 237 (Wyo. 2020)). Our review is instead as follows:

We must determine whether the evidence could reasonably support the jury’s verdict. We do not reweigh the evidence or reexamine the credibility of witnesses, but examine the evidence in the light most favorable to the State. We accept the State’s evidence as true, giving it every favorable inference which can reasonably and fairly be drawn from it. We disregard any evidence favorable to the appellant that conflicts with the State’s evidence.

Borja, 2023 WY 12, ¶ 8, 523 P.3d at 1215 (quoting Mackley v. State, 2021 WY 33, ¶ 24, 481 P.3d 639, 645 (Wyo. 2021)).

[7–9] [¶16] Mr. Bindner was convicted and sentenced for violations of Wyo. Stat. Ann. § 35-7-1031(a)(i) and (c)(i). Subsection (a) makes it unlawful to possess a controlled substance with the intent to deliver; subsection (c) makes it unlawful to knowingly or intentionally possess a controlled substance. Thomas v. State, 2003 WY 53, ¶ 17, 67 P.3d 1199, 1204 (Wyo. 2003). Both crimes require possession of a controlled substance, but possession may be actual or constructive. Mitchell v. State, 2020 WY 142, ¶ 34, 476 P.3d 224, 237 (Wyo. 2020) (citing Huckins v. State, 2020 WY 21, ¶ 12, 457 P.3d 1277, 1279 (Wyo. 2020)). "Actual possession may be found when the defendant has direct physical custody...