Terri Ann Payseno , 332 P.3d 1176 ( 2014 )

IN THE SUPREME COURT, STATE OF WYOMING
2014 WY 108
APRIL TERM, A.D. 2014
August 28, 2014
TERRI ANN PAYSENO,
Appellant
(Defendant),
v. S-13-0224
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Hot Springs County
The Honorable Robert E. Skar, Judge
Representing Appellant:
Office of the Public Defender: Diane Lozano, State Public Defender; Tina N.
Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate
Counsel.
Representing Appellee:
Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Kristen R.
Jones, Assistant Attorney General.
Before BURKE, C.J., and HILL, KITE*, DAVIS, and FOX, JJ.
* Chief Justice at time of expedited conference.
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 typographical or other formal errors so correction may be made
before final publication in the permanent volume.
KITE, Justice.
[¶1] Terri Ann Payseno was convicted in Hot Springs County, Wyoming of three
offenses involving the theft and subsequent sale of two saddles to a pawn shop. Ms.
Payseno appeals, claiming the district court abused its discretion when it admitted, under
W.R.E. 404(b), evidence that she pawned another saddle which allegedly belonged to her
sister.
[¶2] We conclude the evidence was not properly admitted but Ms. Payseno was not
prejudiced by the error. Consequently, we affirm.
ISSUE
[¶3] Ms. Payseno presents a single issue on appeal:
I. Did the district court abuse its discretion in admitting
into evidence testimony of an irrelevant alleged theft
in violation[] of the requirements outlined in W.R.E.
404(b)?
The State presents the same issue, though it is expressed in greater detail.
FACTS
[¶4] In the Spring of 2012, Ms. Payseno worked for Rocky and Charlie McClintock at
a convenience store in Thermopolis, Wyoming. She also took care of the McClintocks’
home, which was located outside of Thermopolis, while they were away for a few days in
April 2012.
[¶5] Tracy Loughlin kept his horses and horse trailer at the McClintocks’ place. The
trailer contained a tack compartment where he stored his saddles. On July 28, 2012, Mr.
Loughlin went to a roping. After returning his horses and the trailer to the McClintocks’
place, he left town for two weeks to work in the oilfields of North Dakota. On August
14, 2012, he discovered two of his saddles were missing from the trailer tack
compartment. The saddles had been purchased from the White Horse Country Store in
Thermopolis and were stamped with the White Horse mark.
[¶6] Mr. Loughlin reported the missing saddles to law enforcement, and Lieutenant
Daniel Pebbles of the Hot Springs County Sheriff’s Office investigated. Lt. Pebbles
checked the local pawn shops to see if any White Horse saddles had recently been
pawned or sold and learned about an on-line service showing pawned items. Using the
1
service, he discovered two saddles matching the descriptions of Mr. Loughlin’s missing
saddles had been sold to a pawn shop in Billings, Montana on July 30, 2012. The pawn
shop documents identified the person who sold the saddles as Ms. Payseno, and included
her statement that she had owned the saddles for two years.
[¶7] Lt. Pebbles called the telephone number on the sales ticket and reached Ms.
Payseno. He interviewed her at the law enforcement center and asked whether she had
recently pawned anything. She explained that she had purchased two saddles for $300
from “some guy” at Maverick, who she described as a “young dope-head.” She claimed
not to know the young man’s name or where he had obtained the saddles. Ms. Payseno
told Lt. Pebbles that she took the saddles to Billings and sold them to a pawn shop for
$600. She also told him that she had pawned her own saddle in Riverton in August 2012.
[¶8] Ms. Payseno’s sister, Kim Dooper, claimed the saddle pawned in Riverton
belonged to her. Ms. Dooper stated Ms. Payseno had given her the saddle years before
and she had loaned the saddle back to Ms. Payseno in the spring or early summer of 2012
so she could use it for roping. After learning it had been pawned, Ms. Dooper went to
Riverton and retrieved the saddle from the pawn shop.
[¶9] The State charged Ms. Payseno with three crimes regarding the theft and sale of
Mr. Loughlin’s saddles: larceny; wrongful disposal of property; and burglary. In
response to Ms. Payseno’s demand for notice of the State’s intent to offer other bad acts
evidence under W.R.E. 404(b), the State announced it was going to offer the following
evidence: “Charges and/or prior bad acts: Report by Kim Dooper to the Cody Police
Department, dated August 29, 2012, regarding the theft, possession and disposing of a
saddle owned by Kim Dooper at the Double C Pawn Shop in Riverton, Wyoming.” The
State offered the evidence for a number of purposes, including: plan, motive, opportunity,
intent, preparation, knowledge, identity, or absence of mistake or accident.
[¶10] Ms. Payseno filed a motion in limine to exclude the other bad acts evidence,
asserting it was not offered for a proper purpose but only to show that she had a
disposition to commit crimes. She also asserted it was irrelevant and unfairly prejudicial.
The district court held a hearing on the other bad acts evidence prior to trial. Ms.
Payseno told law enforcement that she had purchased the saddles belonging to Mr.
Loughlin from someone in the Maverick parking lot and sold them to a pawn shop in
Billings, but she did not know they were stolen. The State urged the evidence of Ms.
Payseno pawning her sister’s saddle in Riverton would rebut her assertion that she was
mistaken as to the origin of the two saddles sold in Billings and would show “motive,
opportunity, intent, plan, knowledge, and absence of mistake or accident.” The defense
asserted the saddle pawned in Riverton involved a family dispute, no charges had ever
been filed, and the State was offering the evidence for an “improper purpose.” After the
district court directed the prosecutor to be more specific about the purpose or purposes of
the evidence, she argued it pertained to Ms. Payseno’s preparation “in terms of the
2
process by which one pawns, the process by which one, you know, gets – takes an item to
a pawn shop, and how that process [] worked.” The defense countered that pawning an
item does not indicate preparation.
[¶11] The district court ruled that it was going to admit the other bad acts evidence as
relevant to the wrongful disposal of stolen property charge. It reasoned: “The process of
pawning is similar and also goes to the lack o[r] absence of mistake or accident as it
relates to that method of disposing of property, so I will allow it for that reason, and only
for that reason.” However, the order entered by the district court seemed to provide more
general grounds for admission:
THE COURT HEREBY MAKES THE FOLLOWING
FINDINGS OF FACT:
1. The State seeks to introduce in its case-in-chief, evidence
regarding the theft and pawn of Kim Dooper’s saddle in or
around August 201[2].
2. The proper basis for the introduction of the evidence is it
tends directly to prove or disprove a consequential fact
such as the absence of accident or mistake, planning and
knowledge of how and where to dispose of stolen
property.
3. The probative value of the evidence is not substantially
outweighed by its potential for unfair prejudice. The
evidence is probative and relevant to the crime as charged
in Count II – Wrongful Buying, Receiving, Concealing or
Disposing of Property.
4. The defendant or the State may request and propose a
limiting jury instruction be given to the jury prior to
deliberation.
[¶12] At trial, the district court allowed the State to play a video and audio recording of
Lt. Pebbles’ interview with Ms. Payseno at the law enforcement center. Defense counsel
objected to the recording on several bases, one being that it included impermissible other
bad acts evidence of Ms. Payseno pawning Ms. Dooper’s saddle. Defense counsel
argued the evidence was not admissible under Rule 404(b) because it occurred after the
charged crimes and, therefore, was not traditional prior bad act evidence. The district
court overruled the objection.
3
[¶13] During the interview, Ms. Payseno made the following statements regarding the
saddles, including the one she pawned in Riverton:
Lieutenant Daniel Pebbles: . . . Well, let’s talk about
things you might have pawned recently in the last 30, 45
days.
Terri Payseno: Uh-huh.
Lieutenant Daniel Pebbles: Maybe longer.
Terri Payseno: Yeah, I’ve done some saddles.
Lieutenant Daniel Pebbles: Okay. Where did you get
them?
Terri Payseno: Bought them.
Lieutenant Daniel Pebbles: From who [sic]?
Terri Payseno: Some guy at Wal-Mart – not Wal-
Mart, Maverick.
Lieutenant Daniel Pebbles: Some guy at Maverick.
Probably don’t know his name either; do you?
Terri Payseno: Just some young dope-head.
Lieutenant Daniel Pebbles: Okay. What kind of
saddles were they?
Terri Payseno: I don’t know – well, I pawned my
own, but that –
Lieutenant Daniel Pebbles: Your own saddle?
Terri Payseno: Yeah.
Lieutenant Daniel Pebbles: Where did you do that
at[?]
Terri Payseno: In Riverton.
4
Lieutenant Daniel Pebbles: Riverton? What pawn
shop?
Terri Payseno: Double D [sic], I think.
(Video Stopped).
The Court: Objection?
[Defense Counsel]: On this particular questioning
regarding the Riverton saddle[].
The Court: Nature of your objection?
[Defense Counsel]: 404(b).
The Court: Overruled.
(Video Started Again)
Lieutenant Daniel Pebbles: You still got the receipt?
Terri Payseno: I think so.
Lieutenant Daniel Pebbles: That would be awesome.
Terri Payseno: Double D [sic].
Lieutenant Daniel Pebbles: Mind if I look at it? This
was on around the 8th of August or 3rd of August; is that
correct?
Terri Payseno: Let me see.
Lieutenant Daniel Pebbles: . .. So – and this
saddle was your saddle; correct[?]
Terri Payseno: Uh-huh.
Lieutenant Daniel Pebbles: Where did you get this
saddle at?
Terri Payseno: (Inaudible).
5
Lieutenant Daniel Pebbles: Who was your sister?
Terri Payseno: Kim Dooper.
Lieutenant Daniel Pebbles: Kim Dooper, does she live
in town?
Terri Payseno: Hu-huh, up in Cody.
Lieutenant Daniel Pebbles: She lives in Cody? Other
than being – it’s described here as just a saddle, other than
being just a saddle, what brand is it?
Terri Payseno: It’s a handmade or custom-made
one that I bought in Cody like 15, 16 years ago.
Lieutenant Daniel Pebbles: So?
Terri Payseno: I can’t remember the name of it, but . .
.
Lieutenant Daniel Pebbles: Okay. Mind if I get a
copy of this?
Terri Payseno: Go ahead.
...
Lieutenant Daniel Pebbles: Any other saddles you
might have pawned?
Terri Payseno: I took some to Billings.
[¶14] Later in the trial, the district court held another hearing in chambers on the other
bad acts evidence. Defense counsel renewed his objection to the evidence because Rule
404(b) pertains mostly to prior bad acts. He maintained that the evidence could not be
admitted for the purpose of showing preparation when it occurred after the charged
crime. The district court pointed out that the rule applies to all other bad acts evidence,
not just prior bad acts, and noted its ruling from the pre-trial hearing. After some more
discussion, the district court posed the following query to the prosecution:
6
THE COURT: All right. [Prosecutor], can you
explain to the Court, we had previously ruled, or the Court had
previously ruled that it could be used for showing the absence
of accident or mistake. We’re not hearing any evidence of that
at this juncture. Can be used to show planning; however, it
may be difficult to equate that since this 404(b) evidence
occurred after this alleged larceny and sale of the property to
the pawn shop.
[Prosecutor]: And Your Honor, first of all we reviewed
this during the hearing and the supporting documentation of
this was provided to Counsel including a copy of the pawn
ticket for Double C Pawn which is clearly dated on the 8th of
August. So we have already reviewed this, and the arguments
were made and nothing has changed, there’s been nothing
new, and we believe that the argument remains that it shows
that Ms. Payseno plans and has knowledge and certainly
absence of mistake or accident in terms where and how to
pawn a saddle. . . .
[¶15] In response to the district court’s request for further clarification, the prosecutor
stated that the other bad acts evidence pertained to the wrongful disposal of property
charge by showing that Ms. Payseno “knows how, when and where to dispose of saddles,
I think it goes to the fact that she’s familiar with pawn shops. . . . [I]t goes to her ability to
be able to plan to dispose of stolen property. . . .” She also maintained the evidence
showed absence of accident or mistake because it would “certainly go to whether or not
Ms. Payseno actually even owned the saddle,” since Ms. Payseno asserted she owned the
saddles traded at both pawn shops when she did not. The district court concluded it
would “continue with its prior ruling” that the other bad acts evidence was admissible.
After that, Ms. Dooper testified the saddle Ms. Payseno pawned in Riverton actually
belonged to her and she had only loaned it to Ms. Payseno for roping.
[¶16] The jury returned a verdict finding Ms. Payseno guilty of all three offenses:
larceny; wrongful disposal of stolen property; and burglary. After sentencing, Ms.
Payseno appealed to this Court.
DISCUSSION
[¶17] The district court admitted, under Rule 404(b), testimony that Ms. Payseno
pawned her sister’s saddle in Riverton as appropriate evidence on the charge that she
wrongfully disposed of Mr. Loughlin’s saddles at the pawn shop in Billings. Wyo. Stat.
Ann. § 6-3-403(a) (LexisNexis 2013) states:
7
(a) A person who buys, receives, conceals or disposes of
property which he knows, believes or has reasonable cause to
believe was obtained in violation of law is guilty of:
(i) A felony punishable by imprisonment for not more
than ten (10) years, a fine of not more than ten thousand
dollars ($10,000.00), or both, if the value of the property is
one thousand dollars ($1,000.00) or more[.]
See also Garcia v. State, 777 P.2d 1091, 1095 (Wyo. 1989); Capshaw v. State, 737 P.2d
740, 745 (Wyo. 1987) (setting out the elements of wrongful receiving, concealing or
disposing of property).
[¶18] The district court instructed the jury on the elements of the charge as follows:
The elements of the crime of Wrongfully Taking or Disposing of
Property, as charged in Count II of the Information in this case, are:
1. On or between July 29, 2012 and August 14, 2012
2. In Hot Springs County, Wyoming
3. The Defendant, TERRI ANN PAYSENO
4. Disposed of property, to wit: two (2) White Horse
saddles, belonging to Tracy Loughlin valued at
$1,000.00 or more
5. Which the Defendant knew, believed, or had
reasonable cause to believe was obtained in violation
of law.
[¶19] W.R.E. 404(b) prohibits evidence introduced “‘only to demonstrate that the
defendant has a disposition to commit crimes.’” Cazier v. State, 2006 WY 153, ¶ 30, 148
P.3d 23, 33-34 (Wyo. 2006), quoting Gleason v. State, 2002 WY 161, ¶ 17, 57 P.3d 332,
340 (Wyo. 2002). The rule states:
Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show that he acted
in conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake
or accident.
W.R.E. 404(b). We have adopted a mandatory procedure for testing the admissibility of
uncharged misconduct evidence. Gleason, ¶ 18, 57 P.3d at 340. To be admissible,
8
(1) the evidence must be offered for a proper purpose; (2)
the evidence must be relevant; (3) the probative value of the
evidence must not be substantially outweighed by its potential
for unfair prejudice; and (4) upon request, the trial court must
instruct the jury that the similar acts evidence is to be
considered only for the proper purpose for which it was
admitted.
Id. See also Roeschlein v. State, 2007 WY 156, ¶ 8, 168 P.3d 468, 471 (Wyo. 2007).
[¶20] Ms. Payseno objected to the evidence regarding her pawning the saddle in
Riverton; accordingly, we review its admissibility under the abuse of discretion standard.
Cazier, ¶ 10, 148 P.3d at 28.
A trial court’s decision on the admissibility of evidence is
entitled to considerable deference, and will not be reversed on
appeal unless the appellant demonstrates a clear abuse of
discretion. As long as there exists a legitimate basis for the
trial court’s ruling, that ruling will not be disturbed on appeal.
Even if the district court admitted evidence in error, we must
consider whether the error was prejudicial or harmless. Error
is prejudicial if there is a reasonable possibility that the
verdict might have been more favorable to the defendant if
the error had not been made. Prejudicial error requires
reversal, while harmless error does not.
Nelson v. State, 2010 WY 159, ¶ 29, 245 P.3d 282, 289 (Wyo. 2010), quoting Reay v.
State, 2008 WY 13, ¶ 8, 176 P.3d 647, 650 (Wyo. 2008) (citations omitted).
[¶21] The first factor considered in determining admissibility under Rule 404(b) is
whether the evidence is offered for a proper purpose. The district court ruled the
evidence of Ms. Payseno pawning her sister’s saddle was admissible for a proper purpose
because it tended to directly “prove or disprove a consequential fact such as the absence
of accident or mistake, planning and knowledge of how and where to dispose of stolen
property.” Ms. Payseno argues the evidence that she pawned her sister’s saddle after the
charged offenses had already occurred did not show that she knew how to dispose of
stolen property at the time of the charged offenses.
[¶22] Rule 404(b) pertains to all other bad acts, not just prior bad acts. 29 Am. Jur. 2d
Evidence § 420 (2014) (noting evidence of an extrinsic offense committed after the
charged act may be admissible). However, in order for an act to be properly admissible
to show planning or preparation for the charged crime, it needs to be committed within a
9
relevant time period. The State did not adequately explain how the fact Ms. Payseno
pawned a saddle after she had already sold the stolen saddles to a different pawn shop
demonstrated that she knew how to dispose of stolen property at the time of the charged
offense. 1 Consequently, the State failed to demonstrate the evidence was admissible to
show preparation or plan under Rule 404(b).
[¶23] Furthermore, other bad acts evidence is only admissible if it is relevant and
probative to a fact in issue. Sarr v. State, 2007 WY 140, ¶¶ 17-19, 166 P.3d 891, 896-97
(Wyo. 2007). Ms. Payseno admitted that she sold the saddles to a pawn shop in Billings,
so she obviously was aware of how to transact business in a pawn shop. That aspect of
the case was not, therefore, in issue and the evidence was not relevant.
[¶24] The district court apparently also concluded the evidence was admissible to show
lack of mistake or accident about where the saddles came from, i.e., whether they were
stolen or not. The district court’s reasons for reaching that conclusion are not entirely
clear in the record; however, the State claims the district court ruled the evidence was
admissible to show Ms. Payseno’s “guilty knowledge.” It asserts the circumstances of
the case at bar are similar to the circumstances in Huddleston v. United States, 485 U.S.
681, 108 S. Ct. 1496, 99 L. Ed. 2d 771 (1988), where the United States Supreme Court
allowed the use of other bad acts evidence to demonstrate the defendant was aware the
large number of video tapes he possessed and sold were stolen. The other bad acts
evidence admitted in that case involved the defendant’s sale of allegedly stolen
televisions a couple of months before the charged incident and attempted sale of stolen
appliances about a month after the charged crime. Id. at 682-83, 108 S. Ct. 1497, 98.
The United States Supreme Court set out the four-part test for admission of evidence
under Rule 404(b) we adopted in Vigil v. State, 926 P.2d 351 (Wyo. 1996), and ruled the
evidence of the defendant’s other attempts to sell stolen merchandise was admissible to
show he knew the video tapes were stolen. Huddleston, 485 U.S. at 691-92.
[¶25] Huddleston does not justify admission of the other bad acts evidence in this case.
There, the circumstances involving the other stolen merchandise were very similar to the
charged crime. By contrast, the situation involving Ms. Payseno’s sister’s saddle was
quite different from the charged crime. There was a dispute over who actually owned the
saddle when Ms. Payseno pawned it. The evidence showed that Ms. Payseno once
owned the saddle and had either given it to her sister many years before or simply asked
her sister to store it for her.
[¶26] In any event, it is clear Ms. Payseno legitimately possessed the saddle at the time
she pawned it. In contrast, Mr. Loughlin had not entrusted his saddles to anyone. They
1
The State argues on appeal that the district court did not admit the evidence for the purpose of showing
planning or preparation. Our detailed review of the district court’s various rulings in Paragraphs 11 and
15, above, contradicts the State’s account of the district court’s rationale.
10
were illegally removed from the tack compartment of his horse trailer without his
knowledge or consent. The two situations were simply not sufficiently similar for the
Riverton saddle incident to have any relevance to the issue of whether Ms. Payseno knew
or had reason to know the saddles she pawned in Billings were stolen. The district court
erred when it concluded the evidence of Ms. Payseno’s subsequent pawning of her
sister’s saddle was admissible for the purpose of showing she had “guilty knowledge” of
the other saddles’ illicit origins. Given the State has not demonstrated the evidence was
admitted for any proper purpose, we conclude the district court abused its discretion by
allowing it into evidence.
[¶27] Our conclusion the evidence should not have been admitted does not, however,
end the analysis. In order to justify reversal of Ms. Payseno’s conviction, there must be a
showing that she was prejudiced by the improper evidentiary ruling. Any error which
“does not affect substantial rights shall be disregarded.” W.R.Cr.P. 52(a); W.R.A.P.
9.04. See also Roeschlein, ¶ 14, 168 P.3d at 473. In general, an error in admission of
other bad acts evidence will be considered harmful if there is a reasonable probability that
in absence of the error the verdict would have been more favorable to the defendant.
Mersereau v. State, 2012 WY 125, ¶ 29, 286 P.3d 97, 111 (Wyo. 2012); Bishop v. State,
687 P.2d 242, 247 (Wyo. 1984), abrogated on other grounds by Vigil v. State, 926 P.2d
351 (Wyo. 1996). However, when the properly admitted evidence against a defendant is
overwhelming, an evidentiary error is harmless. Id.
[¶28] As we said earlier, the element in dispute with regard to the wrongful disposal of
property charge was whether Ms. Payseno knew, believed, or had reasonable cause to
believe the saddles were obtained in violation of law. The State’s primary theory was
that Ms. Payseno stole the saddles from Mr. Loughlin’s trailer and then sold them to the
pawn shop in Billings. Ms. Payseno told Lt. Pebbles that she had purchased the saddles
from a “young dope-head” in the Maverick parking lot for $300. It is clear the jurors did
not believe Ms. Payseno’s explanation because they found her guilty of larceny and
burglary as well as wrongful disposal of stolen property. Likewise, even if they did
believe that she purchased the saddles from someone in the Maverick parking lot, they
could have convicted her of wrongful disposal of property if they found she believed or
had reasonable cause to believe the saddles were stolen.
[¶29] In Vanvorst v. State, 1 P.3d 1223 (Wyo. 2000), we discussed the requirements for
proving a violation of § 6-3-403. We stated that “proof of mere naked possession of
recently stolen property not aided by other proof that the accused received it with
knowledge that it was stolen, is insufficient” to justify a conviction. Id. at 1228, citing
Tageant v. State, 673 P.2d 651, 654 (Wyo. 1983). Instead, there must be evidence from
which a jury could conclude beyond a reasonable doubt the accused knew or had reason
to believe the property was stolen when he or she received, concealed or disposed of it.
We supplied a non-exhaustive list of factors which, when combined with the unexplained
11
possession of stolen property, are sufficient to support a finding of the defendant’s guilty
knowledge:
(a) attempts to dispose of the property at an amount
considerably below its fair value; (b) an unusual manner of
acquisition or dealing with the property; (c) knowledge of the
accused beforehand of the location, nature, or value of the
property later stolen; (d) prior possession of other stolen
property by the accused; (e) the relative length of time
between the theft and fact of possession; (f) admissions or
contradictory or evasive statements by the accused; and (g)
other incriminating evidence and circumstances surrounding
the entire incident.
Vanvorst, 1 P.3d at 1228 n.1, citing Tageant, 673 P.2d at 655.
[¶30] Ms. Payseno was familiar with the McClintocks’ property where Mr. Loughlin
kept his horses and trailer with his tack. She admitted she was in possession of property
stolen from Mr. Loughlin’s trailer and she sold the saddles to the pawn shop in Billings.
The pawn shop receipt further confirmed her involvement as it contained her name and
telephone number. Mr. Loughlin told Lt. Pebbles that he used the saddles at a roping on
July 28, 2012, and then placed them back in his trailer. Ms. Payseno sold the saddles to
the Billings pawn shop just two days later, on July 30, 2012, but she falsely stated she
had owned the saddles for two years. Ms. Payseno told Lt. Pebbles she purchased the
saddles from a “young dope-head” in the Maverick parking lot for $300 during the last
half of July 2012. When she purchased the saddles, she did not ask the young man’s
name or where he got the saddles. The evidence at trial showed she had experience with
saddles so she had some idea as to their value and she told Lt. Pebbles the saddles were
“nice.” The owner of the White Horse Country Store testified that Mr. Loughlin had
purchased each of the saddles new for approximately $2,100. He also testified the value
of each of the used saddles would have been between $1,200 and $1,500.
[¶31] The trial evidence satisfied many of the factors identified in Vanvorst and Tageant
and demonstrated that Ms. Payseno knew or should have known the saddles were stolen.
Ms. Payseno had personal knowledge of and access to the place from which the saddles
were stolen; her explanation of where she had gotten the saddles was evasive, incomplete
and very unusual; she sold the saddles for substantially less than their fair value and lied
about how long she had owned the saddles. Under these circumstances, the evidence that
Ms. Payseno knew or had reason to believe the saddles were stolen was overwhelming.
Any error in admitting the irrelevant evidence regarding Ms. Payseno’s pawning of her
sister’s saddle was, therefore, harmless.
[¶32] Affirmed.
12