Guerrero v. State

The Facts

The defendant, Guerrero, was employed as a server at the factory restaurant. Because the computers do not hold cash, the servers at the restaurant were required to hold money received from cash-paying customers until the end of a shift. He had unlawfully voided many orders and wrongly appropriated the money causing the employer substantial material harm.

Procedural History

Defendant’s conviction was reversed and the case was remanded with directions that the district court enter a judgment finding defendant not guilty of the crime charged.


The Wyoming Criminal Code consolidated the crimes of embezzlement and larceny by bailee into a single crime set forth [Wyo. Stat. Ann. § 6-3-402(b)]. Yet the crimes of larceny and larceny by bailee remain separate offenses in Wyo. Stat. Ann. § 6-3-402.

The difference between larceny and larceny by bailee is that to prove unlawful conversion by a bailee, though there is no need to prove a trespassory taking. Accordingly, in Wyoming, whether the criminal act constitutes a “taking” under Wyo. Stat. Ann. § 6-3-402(a), or a “conversion” under Wyo. Stat. Ann. § 6-3-402(b), remains critical to distinguishing between the crimes of larceny and larceny by bailee.

The Issue

Whether there was sufficient evidence to support defendant’s conviction of larceny.

The Holding/Reasoning

The Supreme Court of Wyoming held that “the evidence was insufficient to support defendant’s conviction of larceny because the evidence did not establish that the money defendant took from customers was ever in the restaurant’s possession.” According to the court’s view defendant’s activities could not be subsumed under Wyo. Stat. Ann. § 6-3-402(a). “The evidence showed that the restaurant did not have a central register where cash could be deposited and the money received by defendant, a server, from the restaurant patrons was never transferred to the restaurant’s possession. Instead, the evidence tended to show that defendant’s activities amounted to a conversion under Wyo. Stat. Ann. § 6-3-402(b), but he was not charged with a violation of that statute.”

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