Kuebel v. State

446 P.3d 179

Rebel Scott KUEBEL, Appellant (Defendant),

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

S-18-0255

Supreme Court of Wyoming.

July 18, 2019

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Jonathan W. Foreman, Senior Assistant Public Defender; and Denny L. Harts, Assistant Public Defender. Argument by Mr. Foreman.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General; and Katherine A. Adams^* , Senior Assistant Attorney General. Argument by Ms. Adams.

Before DAVIS, C.J., FOX, KAUTZ, and BOOMGAARDEN, JJ., and PARK, D.J. (Ret.)

PARK, District Judge (Retired).

[¶1] A jury convicted Rebel Scott Kuebel of misdemeanor theft and felony property destruction. Mr. Kuebel appeals, asserting that the prosecutor committed misconduct; he was entitled to a judgment of acquittal for destruction of property because he only disassembled and did not destroy the property; he was entitled to a judgment of acquittal on a charge of theft because the victims had no ownership interest in the property; and that the district court abused its discretion in awarding restitution.

[¶2] We affirm.

ISSUES

[¶3] Appellant raises four issues:

1. Did the prosecutor commit misconduct when three of the State’s witnesses provided nonresponsive answers suggesting that Mr. Kuebel sold motorcycle parts when there was no evidence of such sales?

2. Was Mr. Kuebel entitled to a judgment of acquittal on the charge of property destruction of the 1988 Harley Davidson when it was only disassembled?

3. Was Mr. Kuebel entitled to a judgment of acquittal on the charge of theft of a 1972 Norton motorcycle because the victims did not reserve an ownership interest in this motorcycle when they sold their business to Mr. Kuebel?

4. Did the district court abuse its discretion in awarding $2,500.00 in restitution after the jury convicted him of misdemeanor theft?

FACTS

[¶4] Thomas and Lucinda Collins owned a business in Wheatland, Wyoming, known as West Wind Cycles. The primary purpose of this business was motorcycle repairs and parts. In 2013, Mr. Collins was seriously injured and the Collinses decided Mr. Collins could no longer operate the business, so they resolved to sell it.

[¶5] The Collinses had known Mr. Kuebel since he was a child. Mr. Kuebel had moved back to Wheatland from Utah and had heard about Mr. Collins’ accident. He was trying to help Mr. Collins through the week of the motorcycle rally in Sturgis, South Dakota. The Collinses retained a local attorney and they sold their business to Mr. Kuebel and Ms. Stephanie Menzies on a contract for deed. Mr. Kuebel fell behind on his payments and the parties entered into a second contract. The second contract included missed payments and interest and substituted Ms. Rebecca Schwartz for Ms. Menzies. Eventually, Mr. Kuebel failed to make payments under the second contract and the Collinses took back the property.

[¶6] When the Collinses sold the business, they retained several motorcycles: two Harley Davidsons, a 1979 Sportster and a 1988 FLHT; and three Nortons, a 1971, a 1972 and a 1973, although the 1973 was just a collection of parts. Mrs. Collins testified that both of the Harley Davidsons and two of the Nortons were operational. The motorcycles were all left in a locked shed located on the property that had been sold. The Collinses had titles for all of the motorcycles, except for the one being used for parts. They kept the titles in a safety deposit box.

[¶7] Mr. Collins testified that when he and his wife regained possession of the property, the 1988 Harley Davidson was missing the front engine cylinder, the connecting rods and pushrods, the rims and tires, the saddlebags, the front end, and the seat. The 1979 was missing a headlight, gas tank, seat, and carburetor. Later, part of the front end, the gas tank, and one muffler were returned to Mr. and Mrs. Collins. Neither of the operational Norton motorcycles were on the premises, and both Mr. Kuebel and his business partner testified they had been sold as junk.

[¶8] Mr. Kuebel was originally charged with four counts: two counts of felony theft in violation of Wyo. Stat. Ann. § 6-3-402(a) (LexisNexis 2017); and two counts of felony property destruction in violation of Wyo. Stat. Ann. § 6-3-201(a) (LexisNexis 2017). The first two counts are identical and do not reference any particular item or piece of property; likewise, the second two counts are also identical, and again, do not reference any piece of property. It would be impossible to determine from the Information what was alleged to have been stolen in the first two counts and what was alleged to have been damaged in the second two counts. At the end of the State’s case, the Court, with the agreement of both parties, informed the jury that issues relating to the alleged theft of the 1971 Norton motorcycle had been resolved. Instruction No. 15 instructed the jury that Mr. Kuebel had been charged with three crimes: theft of a 1972 Norton motorcycle; property destruction and defacement of a 1979 Harley Davidson motorcycle; and property destruction and defacement of a 1988 Harley Davidson motorcycle.

[¶9] The jury found Mr. Kuebel guilty of misdemeanor theft of the 1972 Norton motorcycle, and guilty of felony property destruction and defacement relating to the 1988 Harley Davidson motorcycle. Mr. Kuebel was found not guilty of property destruction relating to the 1979 Harley Davidson motorcycle.

[¶10] Mr. Kuebel was sentenced to a term of four to six years for the felony property destruction. This sentence was suspended on the condition Mr. Kuebel complete five years of supervised probation. On the misdemeanor theft, Mr. Kuebel was sentenced to serve 180 days. This sentence was suspended on the condition Mr. Kuebel complete six months of probation, served concurrently with the felony probation. Mr. Kuebel was also ordered to pay restitution of $9,600 for the damage to the 1988 Harley Davidson and $2,500 for the theft of the 1972 Norton motorcycle. Additional facts will be presented as necessary to discuss the issues. Mr. Kuebel filed a timely appeal.

DISCUSSION

A. Did the prosecutor commit misconduct?

[¶11] Mr. Kuebel asserts the prosecutor committed misconduct by failing to properly control the State’s witnesses, which caused six non-responsive answers he claims resulted in his not being able to obtain a fair trial.

[¶12] The first exchange complained of occurred when the prosecutor was questioning Mrs. Collins:

Q. Early on you wanted to indicate about some things. Did you ever receive any property back on the 1988 motorcycle?

A. Yes.

Q. Okay. What property did you receive back?

A. We found the front end. Gentleman brought the front end back.

Q. Okay. Was it Mr. Kuebel that brought it back?

A. Oh, no. Oh, no.

(Defense counsel): I’m going to object to the tone of that answer, Your Honor. It’s implying something towards my client.

THE COURT: Okay. Sustained. Ma’am, please avoid -- Just answer the questions, please.

THE WITNESS: Okay.

The second exchange took place later as defense counsel was cross examining Mrs. Collins:

Q. Okay. All right. But the engine and the front end are back?

A. The front end was returned because he sold it to somebody.

(DEFENSE COUNSEL). Okay. I’m going to object to that, Your Honor. I don’t know the basis for --

THE COURT. Well, yeah. Ladies and gentlemen, disregard her last statement. So that will be stricken.

WITNESS: Sorry.

THE COURT: Go ahead and ask a question Mr. [Defense Counsel].

And please, ma’am, just answer the questions.

The third nonresponsive answer came as the prosecutor was questioning Mr. Collins. Mr. Collins testified he found the 1988 Harley Davidson motorcycle on a lift and stripped down. Then the following question and answer session took place:

Q. Were the parts there?

A. The parts were sold.

(Defense counsel). I’m going to object as to foundation. I don’t know how he would have knowledge of this.

THE COURT: Well, sustained. It does lack foundation.

(DEFENSE COUNSEL). I would ask the Court to strike and instruct the jurors to disregard.

THE COURT. Yes. Ladies and gentlemen of the jury, that previously answer (sic) will be stricken and please disregard that.

The next answer of which Mr. Kuebel complains occurred when defense counsel was cross-examining Mr. Collins. Mr. Collins was asked what certain replacement parts would cost and he responded as follows:

A. It would depend. If I can get back into the swing of my business, I have accessibility to parts at a reasonable price.

Q. Okay.

A. But when I have to go chase down parts to fit that bike because somebody sold them for what I --

(DEFENSE COUNSEL). Okay, I’m going to object at this point, Your Honor. I have not in any way opened the door for this sort of slander.

THE COURT: Okay. Well, Mr. Collins, try to answer the question. That will be stricken and the jury will disregard that part.

Another objection arose later in the same cross-examination. Defense counsel was discussing with Mr. Collins whether Mr. Kuebel or Mr. Collins owned a shed which was on the property after the sale of the business and whether Mr. Kuebel had a key to that shed. Mr. Collins denied Mr. Kuebel had a key and, not in response to any question, said:

A. He tore the lock--

THE COURT: Sir, sir, I need you to wait until there’s a question. Okay?

DEFENSE COUNSEL: I’m going to ask that that be stricken as well.

A. Sorry.

THE COURT: It will be stricken. Jury will disregard that.

The next exchange of which Mr. Kuebel complains took place as the prosecutor was questioning the Chief of Police:

Q. Let’s back up. We’re talking about -- Did she report some motorcycles --

A. That was not the first thing she reported stolen.

(DEFENSE COUNSEL): I’m going to object at this point.

Your Honor. I think this is outside the scope of the case.

Q. Did you eventually get to the motorcycles?

A. After I got to West Winds Cycles, I was there for about five

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