Closs v. Leapley, 93-1847

Decision Date09 March 1994
Docket NumberNo. 93-1847,93-1847
Citation18 F.3d 574
PartiesRandy Lee CLOSS, Appellant, v. Walter LEAPLEY, Warden, South Dakota State Penitentiary, and Mark W. Barnett, Attorney General, State of South Dakota, Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

Before JOHN R. GIBSON * and MORRIS SHEPPARD ARNOLD, Circuit Judges, and WOODS, ** District Judge.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

In late 1982, someone broke into Janet Gullickson's house and stole several items of jewelry, including various rings with diamonds, an amethyst, and glass stones in them. Randy Closs was subsequently convicted of burglary and theft in state court in South Dakota in connection with that break-in. In the same trial, he was also convicted of burglary and theft related to items stolen from a car about a month after the house break-in.

After exhausting his state remedies, Mr. Closs petitioned for a writ of habeas corpus in federal court with respect to the convictions for the house break-in. (He does not challenge the convictions related to the items stolen from the car.) The district court denied that petition in early 1993. Mr. Closs appeals, arguing that the evidence was insufficient, that his trial on the house break-in charges should have been separate from his trial on the charges with respect to the items stolen from the car, and that the jury was not properly instructed on South Dakota law relating to possession of recently stolen property. We affirm the district court. 1

I.

Mr. Closs argues that under the relevant South Dakota law, entry into an occupied structure is a necessary element for a conviction of burglary for the house break-in (no one disputes that assertion), that no evidence was ever offered to establish his presence in Ms. Gullickson's house, and therefore that the evidence was constitutionally insufficient to sustain that conviction for burglary. See, e.g., Jackson v. Virginia, 443 U.S. 307, 316-18, 324, 99 S.Ct. 2781, 2787-88, 2791-92, 61 L.Ed.2d 560 (1979). (Mr. Closs does not specifically state that he is also challenging the theft conviction. Since the theft conviction is integrally tied to the burglary conviction, however, we construe his argument on this issue as contesting the theft conviction as well.)

"[T]he critical inquiry on review of the sufficiency of the evidence ... must be ... to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.... [T]he relevant question is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (emphasis in original). Id. at 318-19, 99 S.Ct. at 2788-89; see also id. at 324, 326, 99 S.Ct. at 2791-92, 2793.

At trial, Ms. Gullickson testified that her bedroom had been "ransacked"; that various rings with diamonds (including her wedding ring), an amethyst, and glass stones in them were missing; that there were scratches on the frame of the door from the garage into the house; and that glass had been broken in that door. A detective and a police officer both testified that there were footprints in the snow of Ms. Gullickson's yard leading to her house. Tracking the footprints in the direction from which they came, the detective testified that the footprints followed a meandering trail to within 20 or 30 yards of the house where Mr. Closs lived. Although the police stopped following the footprints at that point, which was the Closs property line, the detective stated that he could see that the footprints "continued towards the Closs residence."

The detective further testified that when Mr. Closs was arrested and searched in connection with the car break-in, Mr. Closs had in his wallet a small envelope that was "frayed," "ragged," and "torn." That envelope held, the detective stated, "what appeared to be five diamonds and a purple-colored stone which ... was later identified as a[n] amethyst stone." A jeweler subsequently testified that the stones were in fact two diamonds, an amethyst, and three "colorless synthetic stones."

Ms. Gullickson testified that one of the diamonds recovered from Mr. Closs "[caught] the light" like the largest diamond in her wedding ring, was "the same cut" as the largest diamond in her wedding ring, was "the same size" as the largest diamond in her wedding ring, and was indeed, in her opinion, the largest diamond from her wedding ring. Ms. Gullickson further testified that the other diamond recovered from Mr. Closs was "the same" size and cut as one of the smaller diamonds in her wedding ring and that, in her opinion, it was indeed one of the smaller diamonds from her wedding ring. Ms. Gullickson also testified that the amethyst recovered from Mr. Closs was--in color, cut, and size--"exactly like" the one she owned in one of the other missing rings and that, in her opinion, the amethyst was the one missing. Finally, Ms. Gullickson testified that the three other stones recovered from Mr. Closs were "the same" size and color as the glass stones in another of the missing rings, although she could not identify them unequivocally.

Mr. Closs argues that his possession of the stolen property is insufficient by itself to sustain his conviction for burglary and that there was no evidence connecting him to the break-in at Ms. Gullickson's house. We disagree. The footprints in the snow of Ms. Gullickson's yard, which the police followed within hours of the burglary, led to the property where Mr. Closs was living. Those footprints provide the corroboration necessary to sustain a conviction for burglary. See, e.g., United States v. Hankins, 931 F.2d 1256, 1258, 1261 (8th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 243, 116 L.Ed.2d 198 (1991), and United States v. Jones, 418 F.2d 818, 823 (8th Cir.1969); see also Ward v. Lockhart, 841 F.2d 844, 846-48 (8th Cir.1988), and Cosby v. Jones, 682 F.2d 1373, 1380, 1383 (11th Cir.1982). In our view, a rational trier of fact, evaluating that evidence "in the light most favorable to the prosecution," Jackson, 443 U.S. at 319, 99 S.Ct. at 2789, could conclude beyond a reasonable doubt that Mr. Closs was the person who broke into Ms. Gullickson's house and took her rings. We therefore affirm the district court in its ruling that the evidence was constitutionally sufficient to sustain the convictions of Mr. Closs related to the house break-in.

II.

Just a month after the break-in at Ms. Gullickson's house, someone stole an eight-track stereo and a 40-channel CB radio from Rick Johnson's car. Footprints in the snow adjacent to the car followed a meandering trail to the steps of the house where Mr. Closs was living, and the police arrested Mr. Closs for stealing the items from Mr. Johnson's car. It was during the search of Mr. Closs with respect to the items stolen from the car that the police found the stones connected to the house break-in.

The charges with respect to the house break-in and with respect to the items stolen from the car were originally made in two separate informations. Mr. Closs moved for separate trials; the state prosecutor moved to consolidate the cases for trial. After a hearing, the state court consolidated the cases over the objections of Mr. Closs.

In his habeas proceeding, Mr. Closs contends that the joinder of the two cases was so prejudicial as to amount to a denial of due process. See, e.g., Robinson v. Wyrick, 735 F.2d 1091, 1094 (8th Cir.1984), cert. denied, 469 U.S. 983, 105 S.Ct. 390, 83 L.Ed.2d 324 (1984). Mr. Closs makes two arguments in this regard. First, he concedes that the evidence relating to the items stolen from the car was strong but asserts that the evidence relating to the house break-in was weak. He contends, therefore, that the jury was unfairly influenced in its verdicts on the house break-in by the presentation of the evidence with respect to the items stolen from the car. Second, Mr. Closs argues that he was prejudiced by his inability to testify with respect to the house break-in--i.e., to offer an explanation of where he got the stones--without jeopardizing his claim of innocence as to the items that were stolen from the car.

"The argument against joinder [of offenses] is that the defendant may be prejudiced for one or more of the following reasons: ... the jury may use the evidence of one of the crimes charged to infer a criminal disposition on the part of the defendant from which is found his guilt of the other crime ... charged; or ... the jury may cumulate the evidence of the various crimes charged and find guilt when, if considered separately, it would not so find. A less tangible, but perhaps equally persuasive, element of prejudice may reside in a latent feeling of hostility engendered by the charging of several crimes as distinct from only one." Drew v. United States, 331 F.2d 85, 88 (D.C.Cir.1964); see also United States v. Foutz, 540 F.2d 733, 736-37 (4th Cir.1976), and United States v. Ragghianti, 527 F.2d 586, 587 (9th Cir.1975). "If ... the evidence of each of the crimes on trial would be admissible in a separate trial for the other, the possibility of 'criminal propensity' prejudice would be in no way enlarged by the fact of joinder." Drew, 331 F.2d at 90; see also United States v. Halper, 590 F.2d 422, 431 (2d Cir.1978), and United States v. Foutz, 540 F.2d at 736-37. Even where the evidence of one crime that is presented in a trial of two offenses would not be admissible in a separate trial of the other crime, however, "[t]he federal courts ... have ... found no prejudicial effect from joinder when the evidence of each crime is simple and distinct.... This rests upon the assumption that, with a proper charge, the jury can easily keep such evidence separate in their deliberations and, therefore, the danger of the jury's cumulating the evidence is substantially reduced." Drew, 331 F.2d at 91; see also United States v. Halper, 590 F.2d at...

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