Background
In October 2023, Jesse Mostaert and an accomplice shoplifted merchandise from multiple stores in Eastridge Mall in Casper, Wyoming. Police located the pair’s vehicle—a black Jeep owned by a third party who had entrusted it to Mostaert for repairs—in the Mall parking lot. A K9 unit alerted to controlled substances, and the vehicle’s owner later consented to a full search. Officers found merchandise stolen from Best Buy, Spencer’s, Pro Image Sports, and Spirit Halloween, as well as other suspected stolen items: a Trek mountain bike, a Jetson electric bike, an unactivated iPhone with a scratched-off serial number, Milwaukee and O’Reilly brand tools appearing new or recently removed from packaging, and various electronics.
Mostaert was charged with multiple counts of felony theft as a fifth or subsequent offense under Wyo. Stat. § 6-3-402(a)(j). He ultimately pleaded guilty to one count in the Mall case. Before and after sentencing, he filed several motions under Wyoming Rule of Criminal Procedure 41(g) seeking the return of property he claimed as his own, including the bikes, tools, a laptop, a new iPhone, and various personal items. The district court denied those motions—initially due to pending federal investigations and difficulty identifying rightful owners—and Mostaert refiled after sentencing.
At a June 2025 hearing on the refiled motion, the State presented testimony from Detective Megan Dovala, who described the condition of the items (new in box, scratched serial numbers, brands specific to stores Mostaert had frequented), why she believed they were stolen, and that the State did not possess several items Mostaert sought to recover. Mostaert called no witnesses and offered no documentary evidence, relying instead on the legal argument that the presumption of ownership ran in his favor. The district court denied the motion, finding the State had proven by a preponderance that Mostaert lacked a lawful right to possess the property. He appealed.
The Court’s Holding
The Wyoming Supreme Court affirmed, applying an abuse-of-discretion standard of review. Writing for a unanimous court, Justice Jarosh confirmed the procedural framework for post-conviction Rule 41(g) motions. Although the motion is filed within the criminal case, it functions as a civil proceeding governed by a preponderance-of-the-evidence standard. After criminal proceedings conclude, a presumption arises that the person from whom property was taken is entitled to its return. The State must overcome that presumption by demonstrating a cognizable claim of ownership or right to possession adverse to the movant’s—that is, a legitimate reason to retain the property. If the State meets that burden, the movant must then establish a right to lawful possession of the disputed items.
The court noted that the mechanics of the presumption in cases involving allegedly stolen property had previously “gone, for the most part, unexamined in Wyoming.” Drawing on the Tenth and Ninth Circuit decisions interpreting the analogous federal rule, the court held that “considerable evidence” that property is stolen is sufficient to overcome the presumption—even for property taken from the defendant’s possession. Here, the State’s evidence more than met that threshold: Mostaert had pleaded guilty to stealing from Best Buy, Detective Dovala identified items traceable to specific stores by their brand and condition, the iPhone’s serial number had been scratched off, and items appeared new or freshly stripped of packaging with no receipts. Mostaert conceded the Jeep itself was not his and offered no rebuttal evidence at the hearing.
On several items Mostaert sought to recover but that the State never seized—including an iPad, laptops, gold jewelry, and a duffel bag—the court affirmed denial on a separate ground: the State cannot be compelled to return what it does not possess. The court applied its 2025 holding in Bressette v. State, 2025 WY 125, 579 P.3d 1122 (Wyo. 2025), which confirmed that a Rule 41(g) motion must be denied when government no longer holds the property, regardless of whether law enforcement complied with its obligations under Wyo. Stat. § 7-2-105.
Key Takeaways
- After a guilty plea or conviction, Rule 41(g) burden-shifting favors the defendant: the State must prove by a preponderance that it has a legitimate interest in retaining seized property before the defendant is required to demonstrate a right to lawful possession.
- “Considerable evidence” that property is stolen—such as brand-specific goods, items stripped of receipts or serial numbers, or seizure immediately following a theft report—is sufficient to overcome the presumption in the movant’s favor, even if the movant was in possession of the property at the time of seizure.
- Rule 41(g) proceedings are civil in character even though filed in a criminal case; the evidentiary standard is preponderance, not beyond a reasonable doubt, and appellate review is for abuse of discretion.
- A Rule 41(g) motion cannot compel the return of property the government no longer possesses. If law enforcement has already returned items to their original owners or no longer holds them, denial is required regardless of compliance with § 7-2-105.
- Defendants who present no witnesses, no documentary evidence, and no receipts at a Rule 41(g) hearing face a steep uphill battle once the State has offered credible testimony about the suspected origin of seized items.
Why It Matters
Mostaert v. State is the Wyoming Supreme Court’s most explicit treatment of the burden-shifting framework for Rule 41(g) motions in cases involving allegedly stolen property—a question the court itself acknowledged had been largely unresolved. The opinion fills a doctrinal gap by applying Tenth Circuit and Ninth Circuit precedent to Wyoming’s rule and making clear that a theft conviction or guilty plea, combined with credible testimony about the suspicious condition of seized items, can be sufficient for the State to meet its preponderance burden. Once that burden is met, the defendant must affirmatively prove a right to lawful possession; simply invoking the presumption is not enough.
For Wyoming criminal practitioners, the decision underscores the importance of presenting actual evidence—receipts, purchase records, witness testimony—at Rule 41(g) hearings. A naked assertion that seized property belongs to the defendant will not carry the day if the State has offered credible testimony linking the items to thefts. The decision also reinforces that the post-conviction Rule 41(g) process cannot be used as a vehicle for recovering the fruits of criminal conduct: courts may deny motions outright if returning property would more likely than not result in delivering stolen goods back to someone with no lawful claim to them.