Mickelson v. State

287 P.3d 750

2012 WY 137

Luke Edward MICKELSON, Appellant (Defendant),

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

No. S–11–0285.

Supreme Court of Wyoming.

Oct. 30, 2012.

Representing Appellant: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; David Westling, Appellate Counsel; Wyoming Public Defender Program. Argument by Mr. Westling.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jeffrey Pope, Assistant Attorney General. Argument by Mr. Pope.

Before GOLDEN,^*HILL, VOIGT, and BURKE, JJ., and CAMPBELL, D.J.

CAMPBELL, District Judge.

[¶ 1] Luke Edward Mickelson appeals his conviction for unlawful possession with intent to deliver a controlled substance, contending the Court improperly admitted lay opinion testimony concerning Mr. Mickelson's level of intoxication, and that he was denied effective assistance of counsel. Finding no error, we affirm.

ISSUES

[¶ 2] Mr. Mickelson presents two issues for this Court's consideration:

I. Was trial defense counsel ineffective?

II. Did the testimony of two bartenders about intoxication invade the province of the trier of fact?

FACTS

[¶ 3] Mr. Mickelson had apparently been drinking at a friend's house since mid-day on November 2, 2010, through and into November 3, 2010. After he left the friend's house, ostensibly to go to the bank, he encountered his brother and friends behind the Buckhorn Bar and had more drinks. According to Mr. Mickelson, a friend of his brother's gave him a bag of marijuana as a gift. Mr. Mickelson then proceeded to the bank and withdrew $2,000 that he intended to use to pay bills and purchase Christmas presents.

[¶ 4] After going to the bank, Mr. Mickelson entered the Third Street Bar, and after ordering and paying for a drink, he placed a tip on the bar for bartender Britnee Tonille which included both money and a marijuana “bud” on top of the money. Ms. Tonille threw the marijuana away—though at some point Mr. Mickelson retrieved the marijuana from the trash. He again placed the marijuana on the counter in front of three men at the bar, but again Ms. Tonille threw it in the trash. Mr. Mickelson continued in this behavior until special agents of the Wyoming Division of Criminal Investigation placed him under arrest. Shortly before agents confronted him, Vaughn Neubauer, an attorney who had previously represented Mr. Mickelson, arrived at the Third Street Bar. Mr. Neubauer saw the bag of marijuana and told Mr. Mickelson to put it away. Mr. Mickelson again waved the bag around, which caused Mr. Neubauer to take the bag and put it in his pocket. Mr. Neubauer testified at trial not only about the events at the bar but about his previous representation of Mr. Mickelson with regard to alcohol-related offenses.

[¶ 5] At trial, Ms. Tonille testified to the events of November 3, 2010, including the actions of Mr. Mickelson in the bar. She testified that she thought Mr. Mickelson was not too intoxicated to serve. Three of the men who were at the bar that afternoon, Jimmie Biles, Joshua Nerby, and Justin Groshart, testified variously about their observations of Mr. Mickelson, indicating while they thought he was “drunk” they did not observe him consume a great many drinks at the bar. Mr. Groshart, who was a bartender at another bar, testified that from his experience Mr. Mickelson was not so drunk that a bartender should not serve him. While the observations varied somewhat, all witnesses noted Mr. Mickelson's slurred speech.

[¶ 6] Two special agents of the Wyoming Division of Criminal Investigation also testified at trial about their observations of Mr. Mickelson's behavior while they were present in the bar. While noting he believed Mr. Mickelson was drunk, Special Agent Morrow also noted that Mr. Mickelson was able to perform functions such as operating the jukebox. Special Agent Crumpton also offered the opinion that Mr. Mickelson appeared drunk, but observed that he did not have any difficulty conversing with others or operating the jukebox. Special Agent Crumpton further offered the observation that Mr. Mickelson requested that the officers complete their confrontation with him in the alley and also asked to speak specifically with Mr. Neubauer, who he referred to as his attorney. Special Agent Crumpton testified that Mr. Mickelson was evaluated by jail personnel to insure there were not dangerous levels of intoxication necessitating medical treatment, and they concluded no treatment for over-intoxication was necessary.

[¶ 7] Mr. Mickelson testified at trial. He admitted showing the marijuana but testified he could not remember giving any to Ms. Tonille or the other men at the bar. He testified that in addition to the alcohol he drank, he was also taking prescription medications at the time.

[¶ 8] The State originally charged Mr. Mickelson with two counts on November 5, 2010: 1) attempt to deliver a controlled substance, marijuana, and 2) delivery of a controlled substance, marijuana. Ten days later the State filed an amended information alleging the single offense of unlawful possession with intent to deliver a controlled substance, marijuana, in violation of Wyo. Stat. Ann. § 35–7–1031(a)(ii) (LexisNexis 2011), which provides:

(a) Except as authorized by this act, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance. Any person who violates this subsection with respect to:

(ii) Any other controlled substance classified in Schedule I, II or III, is guilty of a crime and upon conviction may be imprisoned for not more than ten (10) years, fined not more than ten thousand dollars ($10,000.00), or both[.]

[¶ 9] Following Mr. Mickelson's waiver of his right to a jury trial, the matter was tried to the Court, and he was convicted of that offense. He timely filed this appeal.

DISCUSSION

A. Lay Witness Testimony

[¶ 10] Mr. Mickelson's defense at trial was that he was too intoxicated to form the specific intent to deliver the marijuana.¹Mr. Mickelson argues the testimony of the bartenders at trial concerning his level of intoxication was an improper opinion concerning his guilt. While recognizing that the bartenders did not express an opinion concerning his guilt directly, he argues that they expressed an opinion that his defense was invalid and that was equivalent to an opinion as to guilt.

[¶ 11] Where, as here, no objection is posed to proffered evidence,² this Court conducts a plain error review. Kidwell v. State, 2012 WY 91, ¶ 10, 279 P.3d 540, 543 (Wyo.2012). “Plain error exists when: 1) the record is clear about the incident alleged as error; 2) there was a transgression of a clear and unequivocal rule of law; and 3) the party claiming the error was denied a substantial right which materially prejudiced him.” Id.

[¶ 12] While the record clearly shows the alleged error, there was no transgression of a clear and unequivocal rule of law. Wyoming Rule of Evidence 701 provides that the testimony of lay witnesses “is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.” Witnesses may not, however, express an opinion as to the guilt of the accused. Cureton v. State, 2007 WY 168, ¶ 10, 169 P.3d 549, 551 (Wyo.2007). “Opinion testimony, however, is not improper simply because it ‘embraces an ultimate issue to be decided by the trier of fact.’ ” Id. (citing W.R.E. 704).

[¶ 13] The question here concerns Ms. Tonille's and Mr. Groshart's testimony and observations as to Mr. Mickelson's level of intoxication—specifically that he was not too intoxicated to be served alcohol. Contrary to Mr. Mickelson's assertion, no opinion concerning guilt was offered by any witness. Testimony concerning a defendant's intoxication is admissible lay witness opinion testimony as long as the witness states the facts on which the opinion is based. Wilks v. State, 2002 WY 100, ¶ 23, 49 P.3d 975, 985 (Wyo.2002). In this case, both Ms. Tonille and Mr. Groshart based their opinion on their observations of Mr. Mickelson in the bar that day. Ms. Tonille specifically described Mr. Mickelson's actions, including that he played the jukebox, interacted with others, and talked on his phone. This Court has said that “most adults are sufficiently experienced with people who have been drinking to offer an opinion as to whether a person is, in fact, intoxicated from alcohol based on their personal observations.” Id.

[¶ 14] The trial court, as the trier of fact, had to decide “whether intoxication could prevent the formation of the requisite intent.” Brett v. State, 961 P.2d 385, 391–92 (Wyo.1998). Again, contrary to Mr. Mickelson's contention, none of the witnesses testified concerning his specific intent—that ultimate conclusion was left to the trial court. Mr. Mickelson argues that the trial court should not have substituted its judgment for that of the bartenders. There is no suggestion that the court did that, but rather weighed the evidence and found the bartenders testimony the most persuasive. The trial court stated:

The most persuasive testimony heard by this Court on that issue was given by two lay witnesses, both of those witnesses trained by the State of Wyoming to recognize extreme intoxication by bar patrons. The first of those witnesses, Ms. Tonille, testified that she was not concerned about the intoxication level of Mr. Mickelson; that he was functioning that day, although clearly under the influence of alcohol.

The second of those witnesses, Mr. Groshart, also trained by the State of Wyoming to recognize, as a bartender, signs of extreme intoxication, testified that he also would have served Mr. Mickelson had Mr. Mickelson been in his establishment. He testified that while it was clear Mr. Mickelson...