IN THE SUPREME COURT, STATE OF WYOMING

2016 WY 22

OCTOBER TERM, A.D. 2015

February 24, 2016

BRENTON MATTHEW DALEY,

Appellant

(Defendant),

v.

THE STATE OF WYOMING,

Appellee

(Plaintiff).

S-15-0159

Appeal from the District Court of Natrona County

The Honorable W. Thomas Sullins, Judge

Representing Appellant:

Office of the State Public Defender: Diana Lozano, State Public Defender and 

Tina N. Olson, Chief Appellate Counsel. Argument by Ms. Olson.

Representing Appellee:

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

Attorney General; Christyne M. Martens, Senior Assistant Attorney General; 

Caitlin F. Young, Senior Assistant Attorney General; Darrell D. Jackson, Faculty 

Director, Prosecution Assistance Program; Bradford H. Coates, Student Director, 

and Matthew A. Walker, Student Intern. Argument by Mr. Walker.

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.
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HILL, Justice.

[¶1] Brenton Daley appeals his conviction of misdemeanor unlawful possession of a 

controlled substance (methamphetamine). He claims that the State failed to present 

sufficient evidence of the quantity and form of the methamphetamine. We will affirm.

ISSUE

[¶2] Brenton Daley presents one issue for our review:

Was there insufficient evidence to convict [Daley], as there 

was no testimony as to the form (liquid, powder, crystalline, 

pill or capsule) of the controlled substance?

FACTS

[¶3] In September of 2014, the Casper Police Department responded to a report that a 

man was “acting strangely” near the railroad tracks, laying on the tracks, throwing his 

shoes around, and walking on the tracks. A subsequent search of the area led police to 

Brenton Daley.

[¶4] Right away, the police observed that Mr. Daley was sweating, speaking “in a rapid 

manner,” making “quick, jerky movements,” and was not “making a whole lot of sense.” 

The police immediately suspected Mr. Daley to be under the influence of something. 

After the police realized an active arrest warrant existed for Mr. Daley, they arrested him

and confiscated a white plastic bag that was found at his feet.

[¶5] The white plastic bag obtained by police contained a Crown Royal bag, inside of 

which was another black pouch. Inside the pouch was a broken glass pipe with residue. 

In the inspecting officer’s opinion, the residue was consistent with methamphetamine. 

The residue was eventually tested by the Wyoming State Crime Laboratory and the 

results indicated positive for methamphetamine.

[¶6] Based upon the positive results from the crime lab, Mr. Daley was then charged 

with one misdemeanor count of unlawful possession of a controlled substance in 

violation of Wyo. Stat. Ann. § 35-7-1031(c)(i). Although only charged with a 

misdemeanor, if convicted, Mr. Daley would be guilty of felony possession because it 

would be his third misdemeanor conviction for the same offense.

[¶7] On January 5, 2015, a jury found Mr. Daley guilty of unlawful possession of 

methamphetamine. Because it was Mr. Daley’s third or subsequent offense, he was 

sentenced to serve three and a half years to five years in prison with 228 days of credit for 

time served. This appeal followed.
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DISCUSSION

[¶8] Mr. Daley argues there was insufficient evidence to convict him in that the State 

had the burden to show the form of the substance Mr. Daley was charged with 

possessing, and the State failed to meet its burden to show the form. The State argues 

that because the quantity and form of the substance relate to the penalty phase, it was not 

required under the relevant statute to prove the exact form of the substance Mr. Daley 

was charged with possessing. We apply a de novo standard of review to issues of 

statutory interpretation. DRW v. DLP (In re ARW), 2015 WY 25, ¶ 11, 343 P.3d 407, 410 

(Wyo. 2015).

[¶9] The statute we aim to interpret in this case is Wyo. Stat. Ann. § 35-7-1031(c) 

(LexisNexis 2015) which provides in relevant part:

(c) It is unlawful for any person knowingly or 

intentionally to possess a controlled substance unless the 

substance was obtained directly from, or pursuant to a valid 

prescription or order of a practitioner while acting in the 

course of his professional practice, or except as otherwise 

authorized by this act. With the exception of dronabinol as 

listed in W.S. 35-7-1018(h), and notwithstanding any other 

provision of this act, no practitioner shall dispense or 

prescribe marihuana, tetrahydrocannabinol, or synthetic 

equivalents of marihuana or tetrahydrocannabinol and no 

prescription or practitioner’s order for marihuana, 

tetrahydrocannabinol, or synthetic equivalents of marihuana 

or tetrahydrocannabinol shall be valid. Any person who 

violates this subsection:

(i) And has in his possession a controlled substance in 

the amount set forth in this paragraph is guilty of a 

misdemeanor punishable by imprisonment for not 

more than twelve (12) months, a fine of not more than

one thousand dollars ($1,000.00), or both. Any person 

convicted for a third or subsequent offense under this 

paragraph, including convictions for violations of 

similar laws in other jurisdictions, shall be imprisoned 

for a term not more than five (5) years, fined not more 

than five thousand dollars ($5,000.00), or both. For 

purposes of this paragraph, the amounts of a controlled 

substance are as follows:

(A) For a controlled substance in plant form, no 
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more than three (3) ounces;

(B) For a controlled substance in liquid form, no 

more than three-tenths (3/10) of a gram;

(C) For a controlled substance in powder or 

crystalline form, no more than three (3) grams;

(D) For a controlled substance in pill or capsule 

form, no more than three (3) grams;

(E) For a controlled substance in the form of 

cocaine-based “crack” cocaine, no more than fivetenths (5/10) of a gram;

(F) For a controlled substance known as LSD 

(Lysergic acid diethylamide), no more than threetenths (3/10) of a gram.

[¶10] When interpreting statutes, we have said

our objective is to give effect to the legislature’s intent. We 

start with the plain meaning of the language chosen by the 

legislature and apply that meaning if the language is clear and 

unambiguous. Id. “A statute is clear and unambiguous if its 

wording is such that reasonable persons are able to agree on 

its meaning with consistency and predictability.”

Weber v. State, 2011 WY 127, ¶ 12, 261 P.3d 225, 228 (Wyo. 2011).

[¶11] The parties in this case agree that the statute is unambiguous but they have 

different interpretations of its plain meaning. Mr. Daley argues that the inclusion of the 

form of the controlled substance at issue in the penalty provision of the statute requires 

that the State prove, as an essential element, the form that was possessed by a defendant. 

However, the State argues that the penalty provision is separate and does not add an 

element to the crime. Our reading of the statute supports the State’s position.

[¶12] The statute at issue criminalizes the possession of any and all quantities of 

controlled substances in any and all forms “unless the substance was obtained directly 

from, or pursuant to a valid prescription or order of a practitioner while acting in the 

course of his professional practice, or except as otherwise authorized by this act.” § 35-

7-1031(c). The form and quantity are not elements of the crime of possession as charged 

in this case but instead a means of measurement as they relate to felony possession 

charges brought under Wyo. Stat. Ann. § 35-7-1031(c) (ii), (iii), and (iv) (LexisNexis 

2015). The statute only denotes quantity and form of controlled substances to 

differentiate between misdemeanor and felony.
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[¶13] Mr. Daley points us to Granzer v. State, 2010 WY 130, 239 P.3d 640 (Wyo. 2010)

in support of his position. There, we held that misdemeanor possession of 

methamphetamine was not a lesser-included offense of child endangerment and stated:

A comparison of the above statutory language makes it 

obvious that the elements of misdemeanor possession of a 

controlled substance are not a subset of the elements of the 

crime of child endangerment. ... Additionally, misdemeanor 

possession pertains to any controlled substance in powder or 

crystalline form, whereas child endangerment requires that 

the controlled substance be methamphetamine. Given the 

difference in elements and the proof required, it is clear that 

misdemeanor possession of a controlled substance is not a 

less-included offense of child endangerment.

Granzer, ¶ 15, 239 P.3d at 646. While our discussion in Granzer does indicate that

Wyoming Statutes do differentiate between child endangerment and possession, that 

differentiation that addresses quantity and form only point out that the child 

endangerment statute as charged in Granzer actually requires the offending substance in 

question to be methamphetamine. The possession statute is shown as requiring proof of 

different elements, none of which specify the form or substance. The plain language of 

the statute under which Mr. Daley was charged is determinative here.

[¶14] The statute’s plain language is so determinative, in fact, that we conclude the State 

met its burden when it proved Mr. Daley “knowingly or intentionally possessed a 

controlled substance[.]” At trial, Officer Luke Iselin testified that a plastic bag was found 

in Mr. Daley’s possession. Inside that plastic bag was a Crown Royal bag with a black 

leather pouch inside. The black leather pouch contained a pipe with “granules” in it. The 

officer further testified that he suspected that the pipe contained methamphetamine and 

accordingly conducted a preliminary test. A Wyoming State Crime Laboratory

technician testified that the substance in the pipe was confirmed as methamphetamine. 

The officer’s testimony, along with the formal tests proving the substance to be 

methamphetamine, supplies sufficient evidence in this case that Mr. Daley was in 

possession of a controlled substance.

CONCLUSION

[¶15] Brenton Daley’s conviction and sentence is affirmed.