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 Peña argues that his probation from the previous case should not have been revoked while the instant case was still pending appeal.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.
[¶3] S-15-0054 issue:
S-15-0055 issues:
[¶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 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.
[¶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.
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):
[¶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):
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 at 578 (citing Vanvorst 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 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.
[¶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:
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 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.
[¶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.
[¶ 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).
State v. Kelly, 159 N.H. 390, 392, 986 A.2d 575 (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.
[¶24] We affirm the district court's judgment and sentence and revocation of probation.