               IN THE SUPREME COURT, STATE OF WYOMING

                                        2015 WY 121

                                                                 APRIL TERM, A.D. 2015

                                                                   September 15, 2015

CURTIS RUSSELL OLDMAN,

Appellant
(Defendant),

v.                                                    S-15-0002

THE STATE OF WYOMING,

Appellee
(Plaintiff).


                    Appeal from the District Court of Fremont County
                       The Honorable Norman E. Young, Judge

Representing Appellant:
      Office of the State Public Defender: Diane Lozano, State Public Defender; Tina
      N. Olson, Chief Appellate Counsel; Eric M. Alden, Senior Assistant Appellate
      Counsel. Argument by Mr. Alden.

Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Joshua C.
      Eames, Assistant Attorney General; Lisa Marie Jerde Spillman, Assistant Attorney
      General; Darrell D. Jackson, Faculty Director, A. Walker Steinhage, Student
      Director, and Geoffrey T. Cunningham, Student Intern, of the Prosecution
      Assistance Program. Argument by Lisa Marie Jerde Spillman.

Before BURKE, C.J., and DAVIS, FOX, JJ., and GOLDEN, J., (Ret.), and KAUTZ,
D.J.*

* Justice Kautz was a district judge at the time of oral argument. He was sworn in as a Justice on
August 4, 2015.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
GOLDEN, Justice (Ret.)

[¶1] A jury found Curtis Russell Oldman guilty of conspiracy to commit robbery. Mr.
Oldman has appealed that conviction, claiming the State failed to present sufficient
evidence of that conspiracy and the State engaged in prosecutorial misconduct in both its
opening statement and closing argument by misleading the jury by using the phrase “if he
was there, he was aware” to suggest that Mr. Oldman’s mere presence at the scene of the
robbery was sufficient evidence to prove the “agreement” element of the crime of
conspiracy. As we shall explain in the following discussion, we find no error and affirm
Mr. Oldman’s conviction and sentence.

                                           ISSUES

[¶2]   Mr. Oldman presents these issues for our consideration:

             I.    Was sufficient evidence presented to support a
             conspiracy conviction?

             II.    Did the prosecutors commit misconduct?

                                     DISCUSSION

I.     Sufficiency of the Evidence

[¶3] Mr. Oldman and the State inform us that the only issue at trial was whether 27-
year-old Mr. Oldman conspired with his 16-year-old brother, A.S., to commit robbery.
There is no question that A.S. committed the robbery of the victim shortly after 4:30
p.m., November 10, 2013, in the parking lot at the Walmart store in Riverton, Wyoming.
The only issue at trial was whether Mr. Oldman conspired with A.S., as that term is
understood in Wyoming criminal law. Our conspiracy statute provides that a person is
guilty of conspiracy to commit a crime if he agrees with another person that one of them
will commit a crime and one of them does an overt act to effect the objective of the
agreement. Wyo. Stat. Ann. § 6-1-303(a) (LexisNexis 2015).

[¶4]   In Remmick v. State, 2012 WY 57, 275 P.3d 467 (Wyo. 2012), we stated:

                    For a conspiracy conviction to be sustained, “the
             evidence must show beyond a reasonable doubt that the
             parties to the conspiracy voluntarily agreed to commit an
             offense.” Martinez v. State, 943 P.2d 1178, 1183 (Wyo.
             1997).




                                            1
                   In Smith v. State, 902 P.2d 1271 (Wyo. 1995), we
                   considered what type of agreement was necessary for a
                   conspiracy to exist.

                   “One might suppose that the agreement necessary for
                   conspiracy is essentially like the agreement or
                   ‘meeting of the minds’ which is critical to a contract,
                   but this is not the case. Although there continues to
                   exist some uncertainty as to the precise meaning of the
                   word in the context of conspiracy, it is clear that the
                   definition in this setting is somewhat more lax than
                   elsewhere. A mere tacit understanding will suffice,
                   and there need not be any written statement or even a
                   speaking of words which expressly communicates
                   agreement. . . .

                   Because most conspiracies are clandestine in nature,
                   the prosec[u]tion is seldom able to present direct
                   evidence of the agreement.      Courts have been
                   sympathetic to this problem, and it is thus well
                   established that the prosecution may ‘rely on
                   inferences drawn from the course of conduct of the
                   alleged conspirators.’”

                   902 P.2d at 1281-82 (quoting WAYNE R. LAFAVE &
                   AUSTIN W. SCOTT, JR., CRIMINAL LAW at 460-
                   61 (1972)).

             Martinez, 943 P.2d at 1183.

Remmick, ¶ 30, 275 P.3d at 473.

[¶5] To determine the sufficiency of the evidence proving the agreement between Mr.
Oldman and A.S., his younger brother, we apply the appropriate standard of review:

                    Our standard of review is simple and established when
             a determination is challenged on the basis of the sufficiency
             of the evidence. We examine whether the evidence most
             favorable to the State is sufficient to infer reasonably that a
             statute was violated as charged. See Mendicoa v. State, 771
             P.2d 1240, 1243 (Wyo. 1989); Seeley v. State, 715 P.2d 232,
             240-41 (Wyo. 1986); Chavez v. State, 601 P.2d 166 (Wyo.



                                            2
             1979); and Cheng v. Com., 240 Va. 26, 393 S.E.2d 599, 608
             (1990). Our examination involves a two stage process.

                     When examining if the verdict is supported by
             sufficient evidence, we review the record to examine “all the
             evidence in the light most favorable to the [s]tate * * *.”
             Mendicoa, 771 P.2d 1243. We examine the evidence from
             this perspective because we defer to the jury as the fact-finder
             and assume they believed only the evidence adverse to the
             defendant since they found the defendant guilty beyond a
             reasonable doubt. We are aware the defendant’s version
             argued for a finding of “not guilty” while the prosecutor’s
             version argued for a finding of “guilty.” Had the jury found
             the defendant’s version credible, they would be bound to
             harbor reasonable doubt against the prosecutor’s claim that
             the defendant was guilty. But they did not find the
             defendant’s version credible and therefore found him guilty
             beyond a reasonable doubt. We do not ask if “‘the evidence
             establishes guilt beyond a reasonable doubt for us * * *,’” Id.
             at 1243 (quoting Broom v. State, 695 P.2d 640, 642 (Wyo.
             1985)), because the answer to that question would require this
             court to weigh the evidence and determine who was most
             credible. That determination simply is not a function of this
             court. “[W]e are not to reweigh the evidence.” Broom, 695
             P.2d at 641.

                    Second, after drawing into the open only the evidence
             adverse to the defendant, we examine whether that evidence
             permits the jury’s inference that the defendant violated the
             elements of the statute as charged. Our focus is singular and
             only examines the reasonableness of the inference from
             premises admittedly adverse to the defendant. See Broom,
             695 P.2d at 642.

Rathbun v. State, 802 P.2d 881, 882-83 (Wyo. 1990) (emphasis in original); accord
Remmick, ¶ 24, 275 P.3d at 472.

[¶6] Our careful examination of the trial transcript reveals the following evidence most
favorable to the State and adverse to Mr. Oldman:

      1.     On the afternoon of November 10, 2013, Tiesha Underwood was driving
her mother’s silver two-door Monte Carlo with her young sister, S.U., as a passenger.
They picked up Tiesha Underwood’s boyfriend of almost eight years, Mr. Oldman, age


                                            3
27, and his younger brother, A.S., age 16, at Mr. Oldman’s mother’s trailer on 17 Mile
Road.

       2.   When Tiesha Underwood picked them up at that trailer, A.S. had two guns
with him when he got into the Monte Carlo.

       3.     The four of them drove to Game Stop in Riverton to sell or pawn some
iPods to get some money. Mr. Oldman’s brother, A.S., went into Game Stop first with the
iPods and then returned to the car and told Mr. Oldman that Game Stop would only give
them a couple of dollars for the iPods. Mr. Oldman then went into Game Stop to retrieve
the iPods and then returned to the car.

        4.     When Mr. Oldman returned to the car, he said, “Damn, what do we do
now.”

       5.     In Tiesha Underwood’s interview with Detective Todd Byerly on
November 11, 2013, the day after the robbery when she was in the detention center in
Lander, when asked, “When you left Game Stop, what was your plan at Walmart? What
was talked about from leaving Game Stop?”, she replied, “[A.S.] was just going to go
grab a purse or something while we take off. Whatever.”

      6.     As they drove the two blocks from Game Stop to the Walmart parking area,
Ms. Underwood was the driver, Mr. Oldman was in the front passenger seat, and A.S.
and S.U. were in the back seat.

       7.      When they arrived at the Walmart parking area, they drove around various
locations while looking for a parking space in the north area of the parking lot near the
entry/exit of the Walmart grocery.

      8.      Walmart had three surveillance video cameras which filmed the actions of
Mr. Oldman, A.S., and Tiesha Underwood as they drove around the parking lot and then
parked at a spot near the grocery entrance/exit in the area where the robbery occurred.

       9.      As the jury watched the video film captured on Walmart’s surveillance
cameras, Detective Todd Byerly described to the jury the actions of Mr. Oldman and A.S.
shown by that film. The State’s prosecutors and Mr. Oldman’s defense counsel
stipulated that the two persons shown on the film were Mr. Oldman and A.S.

        10.    Detective Byerly’s description of the actions of Mr. Oldman and A.S. was
as follows:

        -- at 4:31:27 seconds, the Monte Carlo is visible.
        -- at 4:32.01 seconds, a male subject has exited the car’s passenger side.


                                               4
        -- at 4:32:09 seconds, Mr. Oldman and A.S. are standing outside the car.
        -- between 4:32:09 seconds and 4:33:06 seconds, one of the subjects appears “to
get inside the car, lean into the car . . . it does appear he leans into the vehicle for
something.”
        -- at 4:32:21 seconds, both men are standing outside the car and “it appears that
[they] are having a conversation or actively engaging in something between the two of
them.”
        -- at 4:33:06 seconds, Mr. Oldman and A.S. are standing outside the car and the
robbery victim is now visible.
        -- at 4:33:15 seconds, the robbery victim is visible and is pushing a grocery cart
and holding her purse as she walks toward her car.
        -- at 4:33:15 seconds, Mr. Oldman is standing at the Monte Carlo’s passenger side
door area, and A.S. is moving abruptly towards the robbery victim as she is approaching
her car. Mr. Oldman watches A.S. for twelve seconds as A.S. walks toward the robbery
victim.
        -- at 4:33:33 seconds, A.S. is walking toward the robbery victim.
        -- at 4:33:40 seconds, the robbery victim is toward the rear of her car and A.S. is
near her car.
        -- from 4:33:40 seconds to 4:34:00 seconds, A.S. has reached the robbery victim
and is holding a gun to her head and has her purse.
        -- at 4:34:06 and 07 seconds, the robbery victim is at the rear of her vehicle and
A.S. is running back toward the Monte Carlo with the robbery victim’s purse.
        -- Det. Byerly stated that it was less than a second from A.S.’s reaching the Monte
Carlo to that car driving away.

       11. A.S. testified that when he and Mr. Oldman were standing outside the
Monte Carlo before he started walking toward the robbery victim, A.S. told Mr. Oldman
that he was going to get a bag and to get in the back seat.

       12. Lily Schamp and her fiancé were walking toward the grocery entrance of
Walmart when they saw a young Native American man running toward and then getting
into the Monte Carlo and watched it drive away fast.

       13. The robbery victim testified about the robbery: As she left Walmart with
her grocery cart and purse and reached her car’s passenger door, a young Native
American man came around the back of her car and pointed a gun at her, saying, “Give
me your money. Give me your money.” He told her he would shoot her if she didn’t
give him her purse. He grabbed her purse and ran. She saw him running toward a car
which was the Monte Carlo. She saw a young couple, Mrs. Schamp and her fiancé, and
asked them to call 911.

       14. Riverton Police Officer Luton received the call about the robbery, the
description of the Monte Carlo, and the direction the car was going. She then spotted the


                                             5
car and pursued it, having activated her car’s lights and siren. The car did not stop, but
accelerated upwards of 70 miles per hour. She caught up to the car at 17 Mile Road and
followed it to Mr. Oldman’s mother’s trailer. The Monte Carlo stopped. Two male
subjects got out of the Monte Carlo and ran into a nearby field. Other law enforcement
officers, who had followed Officer Luton’s pursuit of the Monte Carlo, arrived and
pursued the two males and caught them. Officer Luton talked to S.U., who was seated in
the Monte Carlo, and was told by her that the two male subjects had taken the two guns
into the weeds. The guns, a purse (later identified as the robbery victim’s), and a
bandana were recovered in the field.

       15. Officer Ron Cunningham had followed Officer Luton as she pursued the
Monte Carlo, and he arrived on the scene as A.S. and Mr. Oldman jumped out of the
Monte Carlo and started running across a field. He gave chase and caught Mr. Oldman.
Mr. Oldman spoke to Officer Cunningham, stating his date of birth and saying something
to the effect of “if you want -- it’s your job to figure out anything further, or anything
more.”

[¶7] Following the close of testimony and before the State and Mr. Oldman’s defense
counsel gave their respective closing arguments, the trial judge read the jury instructions
which the jury would follow when deliberating the jury’s verdict. Jury Instruction No. 4
instructed in relevant part:

                     The jury is the sole judge of the credibility of the
              witnesses and of the weight to be given their testimony. In so
              doing, you may take into consideration all the facts and
              circumstances in the case, and give to each such weight as in
              the light of your experience and knowledge of human affairs
              you think it entitled.

                     In judging the credibility of the witnesses in this case,
              you should take into consideration their demeanor upon the
              witness stand, their apparent degree of intelligence, their
              means of knowledge of the facts testified to, their interest, if
              any, in the outcome of this trial, and their revealed motives or
              prejudice or feelings of revenge, if any have been shown by
              the evidence in this case.

                      If you believe from the evidence in this case that any
              witness willfully and corruptly swore falsely to any material
              fact in this case, then you are at liberty to disregard all or any
              part of that testimony, except insofar as the same has been
              corroborated by other and credible evidence and the facts and
              circumstances proven during the trial.


                                               6
                                          .   .   .

              . . .[Y]ou may consider the evidence presented to you and the
              reasonable inferences and conclusions which may be drawn
              therefrom in the light of your knowledge, observation and
              experience in the affairs of life.

[¶8] In our careful examination of Tiesha Underwood’s trial testimony, the jury heard
her state that Mr. Oldman, her boyfriend of nearly eight years, did not get out of her car
as A.S. had at Walmart but remained seated in her car. Her testimony was in contrast to
both Mr. Oldman’s testimony and A.S.’s testimony as well as the Walmart surveillance
camera film. She also testified that she did not want Mr. Oldman to go to prison.

[¶9] In our careful examination of Mr. Oldman’s trial testimony, the jury heard him
testify that, while he and A.S. were outside that car at Walmart, neither of them leaned
into the car; yet the jury saw that one of them had leaned into the car as the jury viewed
the Walmart surveillance camera film. The jury heard Mr. Oldman testify that, when he
and his companions left the Walmart parking area, they were not going fast. This was in
stark contrast to Ms. Schamp’s testimony that the car was going fast when she called 911
after the robbery victim told her what had just happened. The jury heard Mr. Oldman
testify that he did not know that A.S. had robbed the victim’s purse until “way
afterwards” a day or two later when he was questioned in the detention facility and heard
it on television; he was surprised to hear that his brother had done that. In contrast, the
jury heard Officer Luton testify that she pursued Oldman’s car with flashing lights and
siren at speeds reaching 70 miles per hour. Also in contrast with Mr. Oldman’s
testimony was the testimony of Officer Cunningham, who chased and caught Mr.
Oldman as he fled from the car.

[¶10] It is true that the State’s case was largely a circumstantial one. It is also true that
the jury could perhaps have concluded that Mr. Oldman was an innocent, naïve 27-year-
old caught in the toils of a bold daylight purse snatching committed by his 16-year-old
brother after both of them could not get any money for their iPods at Game Stop. Yet
that possibility does not call for reversal in this case. On this record, what counts is that
the jury was justified to believe that the converging circumstances pointed toward a more
sinister truth and was persuaded by those circumstances of Mr. Oldman’s agreement with
his brother that he commit the robbery in question. “And that conclusion, once reached,
would be self-reinforcing; if the jury disbelieved [the defense] story, it could legitimately
have presumed that the fabrication was all the more proof of” Mr. Oldman’s guilt.
United States v. Jimenez-Perez, 869 F.2d 9, 11 (1st Cir. 1989).

[¶11] We conclude that there was sufficient evidence for a jury to find an agreement
between Mr. Oldman and his brother A.S. and on that basis to convict Mr. Oldman of
conspiracy to commit robbery.


                                              7
II.    Prosecutorial Misconduct

[¶12] Mr. Oldman claims that prosecution counsel, in opening statement and in closing
argument, misled the jury on what evidence is required to prove the element of agreement
in Wyoming conspiracy law. He identifies several instances in the prosecution’s opening
statement and closing argument where counsel used the mantra “if he was there, he was
aware.” He argues that this mantra suggested that the jury should find Mr. Oldman’s
guilt based upon his mere presence during the events surrounding the robbery. He states
that because his trial counsel did not object to these misstatements of the law, this Court
applies its plain error standard of review.

[¶13] In Ortiz v. State, 2014 WY 60, 326 P.3d 883 (Wyo. 2014), we stated:

                      “The general rule in Wyoming is that a failure to
              interject a timely objection to an allegedly improper argument
              is treated as a waiver, unless the misconduct is so flagrant as
              to constitute plain error and require reversal.” Armstrong v.
              State, 826 P.2d 1106, 1115 (Wyo. 1992) (citing Jeschke v.
              State, 642 P.2d 1298, 1301 (Wyo. 1982)). Because there was
              no objection at trial, this Court reviews Mr. Ortiz’s
              allegations of prosecutorial misconduct for plain error. Maier
              [v. State], 2012 WY 50, ¶ 20, 273 P.3d [1084,] 1090 [(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 resulting in material
              prejudice.” Sweet v. State, 2010 WY 87, ¶ 22, 234 P.3d 1193,
              1202 (Wyo. 2010). Reversal as a result of prosecutorial
              misconduct is not warranted unless a reasonable probability
              exists that absent the error the defendant may have enjoyed a
              more favorable verdict. Haynes v. State, 2008 WY 75, ¶ 23,
              186 P.3d 1204, 1210 (Wyo. 2008).

Ortiz, ¶ 104, 326 P.3d at 903.

[¶14] The prosecution’s opening statement occupies ten pages of the record. At the
beginning of that statement, prosecution counsel stated, “Ladies and gentlemen, if he was
there, he was aware. I’ll get to what that means as I continue.” For the next ten pages of
this opening statement, prosecution counsel walked the jury through the prosecution’s
case in considerable detail, much as we have set out hereinabove in our review of the
sufficiency of the evidence. As prosecution counsel neared the end of his lengthy
statement, he told the jury:


                                              8
                    Well, ladies and gentlemen, that’s what we have here.
              The officers have all investigated, and they have figured out
              what happened. That’s what we will be presenting to you.

                                          . . .

                      So after you hear all this, we’ll ask you to find Mr.
              Oldman guilty of conspiracy to commit robbery . . . . And,
              like I said before, if Mr. Oldman was there, he was aware. He
              knew what was happening, and he was a part of it.

[¶15] At this point, defense counsel objected, stating:

                      Counsel is misinforming the jury as to the law. . . .
              [T]here’s going to be an instruction that says that mere
              presence is not enough to show conspiracy, and yet Counsel
              is intimating that just his mere presence is enough to show
              there is a conspiracy.

[¶16] The trial judge then stated:

                     Well, it’s an interesting little area of the law that
              there’s some recent case law on, and I’m going to sustain the
              objection and ask that the jury disregard that statement as
              possibly being an improper statement of the law.

[¶17] Defense counsel then made his brief opening statement to the jury to the effect that
Mr. Oldman had no notion that his brother was going to rob someone, he didn’t agree that
it should happen, and he didn’t encourage it to happen. He concluded by stating that the
prosecution was not going to be able to show that Mr. Oldman knew or agreed or
encouraged his brother to rob the victim.

[¶18] We have considered the prosecutor’s phrase in the context of his entire opening
statement; we have noted that defense counsel did not object when that phrase was first
spoken; we have noted that when defense counsel objected to the phrase at the close of
the prosecutor’s opening statement, the trial court sustained that objection and instructed
the jury to disregard the phrase as possibly being an improper statement of the law. In
our considered judgment, the prosecutor’s scant use of the phrase in the context of the
entire opening statement was not flagrant and the trial judge’s admonition to the jury to
disregard the phrase was sufficient to remedy the situation. We find no error.




                                             9
[¶19] Mr. Oldman also claims that prosecution counsel used the phrase “if he was there,
he was aware” at several points during closing argument, but Mr. Oldman concedes that
his defense counsel did not object at any time to that usage. The prosecution’s closing
argument, including rebuttal, occupies twenty-three pages of the record. In that
argument, prosecution counsel, as he had done in opening statement, walked the jury
through the prosecution’s case in considerable detail, again much as we have set out
hereinabove in our review of the sufficiency of the evidence. We take note that the trial
judge had instructed the jury at the beginning of the trial that it was his exclusive
province to instruct the jury as to the law applicable to the case. We also take note that,
before prosecution counsel began his closing argument, the trial judge read his
instructions on the applicable law to the jury which included the principle that “merely
being present at the place where the crime takes place” does not of itself make someone a
member of the conspiracy or a conspirator. We also take note that Mr. Oldman’s counsel
reminded the jury during his closing argument that the trial judge’s instructions stated
that mere presence was not enough to convict Mr. Oldman. Finally, we note that in
prosecution counsel’s rebuttal closing argument, he reiterated that mere presence was not
enough to convict Mr. Oldman and that the trial judge’s instructions would guide them on
that point. We find no error here.

[¶20] We affirm Mr. Oldman’s conviction and sentence.




                                             10
