Burkhardt v. State

117 P.3d 1219

2005 WY 96

Brooks A. BURKHARDT, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 04-111.

Supreme Court of Wyoming.

August 18, 2005.

Ken Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Marion Yoder, Senior Assistant Public Defender, for Appellant.

Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; and

D. Michael Pauling, Senior Assistant Attorney General, for Appellee.

Before HILL, C.J., and GOLDEN, KITE, VOIGT and BURKE, JJ.

HILL, Chief Justice.

[¶ 1] Appellant, Brooks Burkhardt (Burkhardt), disputes his March 4, 2004 conviction for burglary of a vehicle.¹ Burkhardt asserts that there was not sufficient evidence presented at trial to sustain his conviction, that his theory of the case instruction was erroneously refused by the trial court, and that the trial court took into account improper information in imposing sentence. We will affirm.

ISSUES

[¶ 2] Burkhardt brings forward these issues:

I. Whether there was sufficient evidence to convict [Burkhardt] of burglary.

II. Whether the jury was properly instructed.

III. Whether the trial court abused its discretion when it took into account unproved factors about [Burkhardt's] "attitude" and "lack of self discipline" and imposed a sentence in conflict with Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

The State's brief essentially mirrors the issues posed by Burkhardt.

FACTS

[¶ 3] The operative facts of the crime at issue in this case take place in a compressed period of time of about 30 minutes, between 1:20 p.m. and 1:50 p.m., give or take a few minutes. Nonetheless, the telling of the story will take up quite a bit of print space. At about 1:20 p.m., on June 6, 2003, Joe Spears (Spears) stopped at the Smoker Friendly Gasamat in Torrington to buy cigars. Spears pulled into the Gasamat and parked his pickup truck near the building. He went into the store, leaving his pickup unlocked. His purchase took longer than expected ("an extra minute or so" because the cigars he wanted to buy were priced incorrectly). He knew the correct price because he often bought them at a Gasamat, where his girlfriend worked, in Scottsbluff, Nebraska. As he was making his purchase, he could see out the window and noticed three boys standing near his truck. He noticed that one of them opened his passenger-side door and that the interior lights were engaged. He observed that a blond-haired boy (Burkhardt), wearing a blue shirt, leaned into the passenger door of the pickup, and appeared to take something from the truck. The other two boys (Nathan Douglass and Matthew Douglass) had dark hair and were not in a position to reach into the pickup. This occurred just about the time Spears was coming out the front door of the Gasamat, and he watches as Burkhardt "spooks and flees." As Burkhardt left, it appeared that he was concealing something in his right hand. Spears positively identified Burkhardt as the individual who had reached into his pickup. Burkhardt and the Douglass brothers were all from Scottsbluff-Gering, Nebraska area and were visiting Torrington for the day.

[¶ 4] At first, Spears worried that Burkhardt might have taken his cell phone because he had left it in a visible spot on the hump between the two front seats. However, when he got to his pickup the phone was there and he did not notice anything else as missing. However, as he started his pickup, he noticed that the interior lights would not go off, and he had to get out and shut his passenger side door. At that point, he was even more certain that someone had been inside his pickup. He confronted the boys about having been inside his pickup, telling them that, "You better hope there is not anything missing, because, you know, I will have his license number." As he left the Gasamat, Spears decided to call his girlfriend at the Gasamat in Scottsbluff, and have her call the manager of the Gasamat in Torrington and ask her to get the license plate number of the pickup Burkhardt was in, as well as to warn her that the boys were there and might be up to something.

[¶ 5] As the events described above were nearing their conclusion, Adalita Esquibel and her family arrived at the Gasamat. Both Spears and Burkhardt and his companions were still there. She saw and heard Spears having words with the boys, and she watched Spears leave. Immediately after Spears left, she observed Burkhardt pull a checkbook out of a trash can. At trial, Esquibel identified the person who retrieved the checkbook from the trash can as Burkhardt. Esquibel and her fiancé made a decision that the police should be called and such a call was placed to the Torrington police.

[¶ 6] At this point, Burkhardt and his companions were still at the Gasamat, but were unable to get their vehicle started. They then pushed it away from the gas pumps and to a position away from the Gasamat building, but still on the grounds of that business. The location of that vehicle was now near a dumpster that serviced the Gasamat. The investigating police officer was dispatched to the Gasamat at 1:53 p.m. When he arrived there, he talked to the manager of the Gasamat and Esquibel, and then talked to Burkhardt and the Douglass brothers. The police officer also identified Burkhardt as being present at the Gasamat. The police officer asked about the brown checkbook that Esquibel had described, and all three boys denied any knowledge of it. The police officer did not see the checkbook when he looked through their vehicle after the boys consented to a search of the vehicle. At that point, the police officer allowed the boys to leave.

[¶ 7] After again discussing with Esquibel her observations of Burkhardt and the checkbook, the police officer then asked the manager of the Gasamat to contact Spears and ask if he was missing his wallet or checkbook. She did so. Spears knew that he had his wallet but inspected the cab of his pickup and discovered that his checkbook was missing. The police officer then conducted a further search of the area and found Spears' checkbook in the dumpster near where the boys had parked their disabled vehicle while they got it started. The police found the boys still in Torrington and brought them in for further questioning. Burkhardt denied any involvement in taking Spears' checkbook, as did the Douglass brothers.

[¶ 8] At trial, Nathan Douglass testified that he, his brother, and Burkhardt were at the Gasamat on the date and at the time when the events described above occurred. Nathan denied any involvement in taking Spears' checkbook. After the group had been questioned at the Gasamat, Nathan asked Burkhardt what had happened to the checkbook and Burkhardt responded it "had been thrown in the dumpster." After the second round of questioning at the police station was completed, Burkhardt asked the Douglass brothers to go back to the alley by the Gasamat, "to see if he could find the checkbook." Once there, Burkhardt told Nathan to leave because "he had seen somebody staring down the alley." The group then left Torrington and returned to Scottsbluff. On the way back to Scottsbluff, Burkhardt commented to Nathan that, "There ain't any evidence or proof of anything, of anything being taken." Matthew Douglass also testified and stated that he did not remove a checkbook from a vehicle at the Gasamat on the date and time in question. Burkhardt chose not to testify or present any other evidence.

DISCUSSION

Sufficiency of the Evidence

[¶ 9] In addressing a claim of insufficiency of the evidence, we must determine whether or not any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. When considering a claim of the sufficiency of the evidence, we review that evidence with the assumption that the evidence of the prevailing party is true, disregard the evidence favoring the unsuccessful party, and give the prevailing party the benefit of every favorable inference that we may reasonably draw from the evidence. We will not reweigh the evidence nor will we re-examine the credibility of the witnesses. Pacheco v. State, 2004 WY 160, ¶ 6, 102 P.3d 887, ¶ 6 (2004) (citing Mascarenas v. State, 2003 WY 124, ¶ 4, 76 P.3d 1258, ¶ 4 (Wyo.2003)); also see Leyo v. State, 2005 WY 92, ¶¶ 12-17, 116 P.3d 1113, ¶¶ 12-17 (2005).

[¶ 10] With specific reference to the sufficiency of evidence in a burglary case, we have said:

When sufficiency of the evidence is challenged in burglary convictions, this Court examines the record, in a light most favorable to the State, to see if there is slight corroborative evidence, other than possession of stolen goods, which connects the appellant with the burglary. King v. State, 718 P.2d 452, 453 (Wyo.1986). We have stated that the possession of stolen goods alone is not sufficient evidence to convict for burglary. Id. (quoting Newell v. State, 548 P.2d 8, 13 (Wyo.1976)). However, we have also concluded with regard to burglary that, "`[t]he most significant and material evidence of defendant's guilt is his possession of the stolen property. Possession is a strong circumstance tending to show guilt and only slight corroborative evidence of other inculpatory circumstances is required'" to convict. Sutherland v. State, 944 P.2d 1157, 1161 (Wyo.1997) (quoting Newell, 548 P.2d at 13).

McGarvey v. State, 2002 WY 149, ¶ 14, 55 P.3d 703, ¶ 14 (Wyo.2002); also see Wells v. State, 613 P.2d 201, 203 (Wyo.1980) ("A defendant need not be found in possession of stolen property as long as he may be found by evidence closely related to its disappearance by some connecting evidence.").

[¶ 11] We have set out the evidence admitted at trial in detail. Our conclusion that this evidence is sufficient to sustain the conviction readily follows from the consideration of that evidence. Each and every element of the crime was proved beyond a reasonable doubt, and Burkhardt's contention...