IN THE SUPREME COURT, STATE OF WYOMING

2015 WY 149

OCTOBER TERM, A.D. 2015

November 24, 2015

CARLOS YAMMON PENA,

Appellant

(Defendant),

v.

THE STATE OF WYOMING,

Appellee

(Plaintiff).

CARLOS YAMMON PENA,

Appellant

(Defendant),

v.

THE STATE OF WYOMING,

Appellee

(Plaintiff).

S-15-0054, S-15-0055

Appeal from the District Court of Sheridan County

The Honorable John G. Fenn, Judge

Representing Appellant:

Office of the State Public Defender: Diane Lozano, State Public Defender; Tina 

N. Olson, Chief Appellate Counsel; and David E. Westling, Senior Assistant 

Appellate Counsel. Argument by Mr. Westling.
Representing Appellee:

Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy 

Attorney General; Jenny L. Craig, Senior Assistant Attorney General; and Joshua 

C. Eames, Assistant Attorney General. Argument by Ms. Craig.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

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.
1

HILL, Justice.

[¶1] After a jury convicted Carlos Peña of larceny, the district court revoked his 

probation from a previous case. In this consolidated appeal, Mr. Peña argues that his 

probation from the previous case should not have been revoked while the instant case was 

still pending appeal. Regarding the instant larceny case, Mr. Peña argues that during 

trial, the district court should not have allowed a jury instruction that improperly shifted 

the burden of proof to Mr. Peña and asserts that there was insufficient evidence to convict 

him in that there was no evidence that he moved or carried away the stolen items. 

[¶2] We will affirm both the probation revocation and the judgment and sentence on 

the larceny conviction.

ISSUES

[¶3] S-15-0054 issue:

Was a probation revocation based solely on a 

conviction on a criminal case under appeal appropriate?

S-15-0055 issues:

1. The Court abused its discretion by allowing 

instruction No. 11, which improperly shifts the burden of

proof to the defendant and obviates the need to prove a 

crucial element of the crime charged.

2. There was insufficient evidence to convict Mr. 

Peña of larceny in that there was no evidence that he 

actually moved or carried away the stolen goods.

FACTS

[¶4] In December of 2011, Carlos Y. Peña was sentenced to two and a half to three 

years in prison for larceny. Mr. Peña completed the Youthful Offender Treatment 

Program and in July of 2012, the district court suspended the remainder of his sentence 

and imposed three years of supervised probation.

[¶5] Fast forward to April 3, 2013, when Sheridan business owner Steven Bush 

discovered that his flatbed trailer and mini-excavator were missing. In early May, Bush 

and his brother-in-law discovered a Craigslist ad for a mini excavator. The men called 

the number in the ad and met the seller, Carlos Peña. Mr. Peña took the men to look at 

the excavator and immediately upon their arrival, Bush noticed his stolen flatbed trailer 
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and excavator. The excavator that Mr. Peña listed for sale on Craigslist was Bush’s 

excavator. Bush immediately contacted the Sheridan County Sheriff’s Office.

[¶6] After the tip from Bush, deputies from the sheriff’s office paid Mr. Peña a visit. 

He told the deputies that the excavator belonged to his mother and father-in-law and that 

he had authority to sell it. The license plate and VIN number from the excavator showed 

that it was stolen and belonged to Bush’s company, Westin Mechanical. After further 

investigation, the State charged Mr. Peña with one count of larceny. The case went to 

trial and the jury convicted Mr. Peña.

[¶7] On September 26, 2014, the State moved to revoke Mr. Peña’s probation from his 

2011 case based on his new conviction. The district court found that he violated his 

probation. His probation was then revoked and the remainder of his sentence was reimposed. Mr. Peña was granted 304 days for time served.

[¶8] Both cases were properly appealed to this Court.

DISCUSSION

Jury Instruction No. 11/Burden Shifting

[¶9] Mr. Peña first contends that the district court abused its discretion when it 

provided the jury with an instruction that stated the possession of recently stolen 

property, when supported by slight corroborative evidence, may support the inference 

that the possessor participated in the theft. Mr. Peña claims that this type of instruction is 

only appropriate in possession of stolen property cases, not cases alleging theft. We 

disagree.

[¶10] With regard to this Court’s review of jury instructions, we have stated:

When we review claims of error involving jury 

instructions, the district court is afforded significant 

deference. Luedtke v. State, 2005 WY 98, ¶ 28, 117 

P.3d 1227, 1232 (Wyo. 2005). A district court is “given 

wide latitude in instructing the jury and, as long as the 

instructions correctly state the law and the entire charge 

covers the relevant issue, reversible error will not be 

found.” Id. (citations omitted); see also Hawes v. State, 

2014 WY 127, ¶ 15, 335 P.3d 1073, 1078 (Wyo. 2014). 

Its ruling on an instruction must be prejudicial to 

constitute reversible error. Heywood v. State, 2007 WY 

149, 26, 170 P.3d 1227, 1234 (Wyo. 2007) (citation 

omitted), abrogated on other grounds by Granzer v. 
3

State, 2008 WY 118, 193 P.3d 266 (Wyo. 2008). 

Because the purpose of jury instructions is to provide 

guidance on the applicable law, prejudice will result 

when the instructions confuse or mislead the jury. Id.

Brown v. State, 2015 WY 4, ¶ 40, 340 P.3d 1020, 1031 (Wyo. 

2015).

Stocki v. Nunn, 2015 WY 75, ¶ 21, 351 P.3d 911, 917-918 (Wyo. 2015).

[¶11] The offered, and accepted, instruction in this case read as follows (emphasis 

added):

Possession of recently stolen property is not of itself

sufficient to permit a finding that the Defendant is guilty of 

the crime here charged. However, possession of recently 

stolen property, if not satisfactorily explained is ordinarily a 

circumstance from which the jury may reasonably draw the 

inference and find, in the light of surrounding circumstances 

shown by the evidence in the case, that the person in 

possession knew the property had been stolen, and is also a 

circumstance from which the jury may reasonably draw the 

inference that the person in possession not only knew it was 

stolen property, but also participated in some way in the theft 

of the property.

However, you are never required to make this 

inference. It is the exclusive province of the jury to 

determine whether the facts and circumstances shown by the 

evidence in this case warrant any inference which the law 

permits the jury to draw from the possession of stolen 

property.

Although possession is a strong circumstance tending 

to show guilt, there must be corroborative evidence tending to 

prove the Defendant’s guilt of each charge. However, this 

corroborative evidence need only be slight and may include: 

whether the Defendant had the opportunity to commit the 

crime charged, his conduct, his false or contradictory 

statements, if any, or other statements he may have made with 

respect to the property and any other evidence which tends to 

connect him with the crime.

If you find beyond a reasonable doubt from the 
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evidence that the property was stolen and that, while recently 

stolen, the property was in the possession of the Defendant, 

you may, from those facts, draw the inference that the 

property was possessed by the Defendant with knowledge 

that it was stolen, but also that the Defendant participated in 

some way in the theft, unless such possession by the 

Defendant is explained to the satisfaction of the jury by other 

facts and circumstances in evidence of the case.

In considering whether possession of recently stolen 

property has been satisfactorily explained, you are reminded 

that in the exercise of constitutional rights the accused need 

not take the witness stand and testify.

Possession may be satisfactorily explained through 

other circumstances, other evidence, independent of any 

testimony of the accused.

[¶12] It is this Court’s long-standing precedent that “possession [of recently stolen 

property] in conjunction with other incriminating circumstances such as misstatement and 

concealment will support ... a conviction.” Mendicoa v. State, 771 P.2d 1240, 1244 

(Wyo. 1989). Also, we said in McGarvey v. State, 2002 WY 149, ¶ 14, 55 P.3d 703, 706 

(Wyo. 2002):

[T]he possession of stolen goods alone is not sufficient 

evidence to convict for burglary. [King v. State, 718 P.2d 452, 

453 (Wyo. 1986)] (quoting Newell v. State, 548 P.2d 8, 13 

(Wyo. 1976)). However, we have also concluded with regard 

to burglary that, “‘the 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, ¶ 14, 55 P.3d 703 at 706 (emphasis added).

[¶13] We reiterated this concept in Budder v. State, 2010 WY 123, 238 P.3d 575 (Wyo. 

2010), where the instruction given there was identical to the instruction given here. This 

Court held that the instruction was proper in burglary cases. Id., ¶ 9, 238 P.3d 578 (citing 

Van Vorst v. State, 1 p.3d 1223, 1230-31 (Wyo. 2000) (approving of identical instruction 

in possession of stolen property case)). While Mr. Peña would like this Court to make a 
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distinction that the instruction at issue is appropriate in burglary cases but not larceny 

cases, we decline to do so. Our declination is based upon years of precedent that can be 

summarized as follows: A defendant’s possession of recently stolen property is “strong”

evidence that he or she stole it. This is true in both burglary and larceny cases.

[¶14] Not only was Mr. Peña in possession of the stolen property, a truck with the same 

unique tire tracks that were found at the scene was found near the stolen property. Also, 

Mr. Peña posted a Craigslist ad about the stolen property and he gave contradictory 

stories about where the property was obtained. Taking all of this into consideration, the 

jury instruction was supported by the evidence.

Insufficient Evidence

[¶15] Mr. Peña argues next on appeal that the State did not meet its burden in 

establishing the “taking and carrying away” element of larceny. We disagree.

[¶16] When reviewing an appellant’s claims regarding sufficiency of the evidence, this 

Court examines the evidence in the light most favorable to the State. Faubion v. State, 

2010 WY 79, ¶ 12, 233 P.3d 926, 929 (Wyo. 2010). We accept all evidence favorable to 

the State as true and give the State’s evidence every favorable inference which can 

reasonably and fairly be drawn from it. We also disregard any evidence favorable to the 

appellant that conflicts with the State’s evidence. Id.

[¶17] At the time of Mr. Peña’s conviction, the Wyoming larceny statute read as 

follows:

(a) A person who steals, takes and carries, leads or drives 

away property of another with intent to deprive the owner or 

lawful possessor is guilty of larceny.

Wyo. Stat. Ann. § 6-3-402(a) (LexisNexis 2011). Recently, “[t]he law of theft and 

larceny has been recodified and its language has been simplified, but proof of the specific 

crime charged must still be made and tested against the beyond-a-reasonable-doubt 

standard.” Powell v. State, 2012 WY 106, ¶ 6, 282 P.3d 163, 164-65 (Wyo. 2012) 

(citation omitted). “Taking” and “carrying” (“caption” and “asportation” at common 

law) must both be proven under our larceny statute. Jones v. State, 2011 WY 114, ¶ 15, 

256 P.3d 527, 533 (Wyo. 2011).

[¶18] Here, we conclude that both “taking” and “carrying” were adequately shown by 

the evidence at trial. First, when Mr. Bush noticed that his equipment was missing, he 

noticed “unique” tire tracks near where the equipment had been. A GMC pickup truck 

with a “distinct” tire tread was noticed near the stolen equipment on the Bear Claw 

Ranch. At trial, the State presented evidence of the tracks at Westin Mechanical and the 
6

GMC pickup truck from the Bear Claw Ranch. Taken together, this evidence gives rise 

to a reasonable inference that the GMC pickup truck was used to take and carry away the 

stolen equipment.

[¶19] The distinct tire tracks were not the only evidence shown at trial to help prove the 

“taking” and “carrying away” elements of larceny. Mr. Peña also used fake pictures to 

sell the excavator on Craigslist. The pictures posted on Craigslist were not representative 

of the excavator he was actually attempting to sell, leading to a reasonable inference that 

he did not want his theft discovered. Also, Mr. Peña told inconsistent stories about how 

he came to possess the stolen property, ranging from the equipment had belonged to his 

family to Mr. Peña buying the excavator from an auction in Casper, to Mr. Peña buying 

the equipment from someone in Gillette.

[¶20] When viewed in the light most favorable to the State, the evidence presented was 

sufficient to permit a jury to reasonably conclude that Mr. Peña stole the property at issue 

in this case.

Probation Revocation

[¶21] Finally, Mr. Peña queries whether the district court properly revoked his probation 

from his prior case based upon his conviction in the instant case, even though his 

conviction is pending on appeal. This is an issue of first impression for this Court.

[¶22] Neither party seems to dispute that Mr. Peña violated his probation by getting 

convicted of another crime during his probation’s pendency. However, Mr. Peña points 

us to case law that, in his mind, says a finding of revocation based upon a conviction 

under appeal is improper. The citation he provides is an anomaly however, because even 

Mr. Peña admits that the general rule is “that a revocation of probation for a subsequent 

criminal conviction is proper, notwithstanding that the conviction is subject to appeal.” 

Wade R. Habeeb, Annotation, Propriety of Revocation of Probation for Subsequent 

Criminal Conviction Which is Subject to Appeal, 76 A.L.R. 3d 588 (1977).

[¶23] A New Hampshire case is helpful:

“[T]he great weight of authority in this country permits the 

revocation of probation based solely upon the probationer’s 

subsequent criminal conviction, even though that conviction 

is pending on appeal.” Hutchinson v. State, 292 Md. 367, 438 

A.2d 1335, 1336 (Md. 1982) (citing cases); see United States 

v. Gentile, 610 F.2d 541, 542 (8th Cir. 1979) (“Federal courts 

have consistently ruled that a criminal conviction provides 

sufficient grounds for revocation of probation even though an 

appeal from the conviction is still pending.”); see also 6 W. 
7

LaFave et al., Criminal Procedure § 26.10(c), at 890 (3d ed. 

2007). The reason for this rule was well stated in Roberson v. 

State of Connecticut, 501 F.2d 305, 308 (2d Cir. 1974):

A criminal conviction after a trial at which the

probationer was entitled to all the protections afforded 

a criminal defendant including formal rules of 

evidence, the right to assigned counsel if indigent, and 

the requirement that the state establish guilt beyond a 

reasonable doubt certainly affords a more than 

sufficient basis for revocation of probation, even if that 

conviction is still awaiting appellate review.

“The rationale is that a judgment of conviction is presumed 

correct and that a probationer should not be insulated from 

having his probation revoked during the frequently extended 

process of appellate review.” 6 LaFave, supra § 26.10(c), at 

890-91 (quotations omitted).

State v. Kelly, 159 N.H. 390, 392 (N.H. 2009). This discussion persuades us, and we thus 

hold that a trial court does not err by revoking a defendant’s probation based solely upon 

evidence of a conviction that is subject to appeal. Of course, if a district court revokes a 

defendant’s probation based solely on a new conviction and that conviction is reversed by 

this Court, the revocation will not stand. That not being the case in this instance, the 

district court is affirmed.

CONCLUSION

[¶24] We affirm the district court’s judgment and sentence and revocation of probation.