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Seeley v. State5/22/1998
Appellant, convicted for felony possession of cocaine, alleges several errors by the district court. First, appellant claims the State presented insufficient evidence to support his conviction. Appellant also contends he was unfairly prejudiced by the admission of testimony describing a "white residue" on a plastic tray and a mirror found in his backpack. Finally, appellant alleges the district court denied him his constitutional right to be present and represented by counsel when it sent an "Allen-type" instruction to the jury room during deliberations. We find appellant's evidentiary claims without merit, but hold the district court erred in instructing the jury without the defendant present. However, we find beyond a reasonable doubt that the error was not prejudicial.
Affirmed.
I. ISSUES
Appellant, Terry Kent Seeley (Seeley), submits the following statements for review:
ISSUE I
The trial court erred in denying the appellant's motion for judgment of acquittal on the grounds that the State failed to present reliable evidence upon which a jury could find the appellant guilty beyond a reasonable doubt.
ISSUE II
The trial court erred in its ruling on the appellant's motion in limine on the admissibility of testimony concerning the plastic tray and mirror.
ISSUE III
The trial court erred in giving Instruction No. 15 to the jury without allowing attorney for appellant to make objection upon the record before the instruction was given.
ISSUE IV
The trial court erred in giving Instruction No. 15 to the jury without the appellant and his attorney being present.
ISSUE V
The trial court erred in depriving the appellant of his right to counsel by giving Instruction No. 15 to the jury without the appellant being present with his attorney.
ISSUE VI
The court erred in denying the appellant's motion for judgment of acquittal following the verdict of "guilty" by the jury[.]
The State, as appellee, responds:
I. Did the district court properly deny appellant's oral motion for judgment of acquittal at the close of the State's case in chief?
II. Did the trial court err in allowing testimony regarding the plastic tray and mirror found in appellant's backpack?
III. Did the trial court commit reversible error in giving Instruction No. 15 or in denying appellant's post-verdict motion regarding that instruction?
II. FACTS
On January 26, 1996, Seeley met a former acquaintance, Thomas Ellis (Ellis), while drinking at a Casper, Wyoming bar. The two drove a Blazer loaned to Seeley by another friend to continue the festivities at a "house party" after the bar closed. During the course of the evening, Seeley suggested that Ellis accompany him to Sheridan, Wyoming, where Seeley planned to discuss the sale of some used oil pipe to a prospective customer. Ellis agreed, and at approximately 5:00 a.m. they left the party and drove the Blazer to Sheridan.
When they arrived in Sheridan, they stopped at the home of another friend of Seeley's, Matt Eisele (Eisele). After visiting with Eisele, the duo proceeded to a motel to get a room and sleep. When they awoke, they telephoned Eisele who came to the motel while Seeley and Ellis were preparing to go out. Seeley asked Eisele to bring in Seeley's black backpack from the Blazer so Seeley could change into clean clothes. Eisele brought the backpack into the motel room without opening it while Seeley replaced the backpack in the Blazer before leaving the motel.
Th
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