Benson v. State
| Decision Date | 03 November 1977 |
| Docket Number | No. 4714,4714 |
| Citation | 571 P.2d 595 |
| Parties | Doug BENSON, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Gerald M. Gallivan, Director, Wyoming Defender Aid, University of Wyoming, and David C. Marion, Senior Law Student, Laramie, for appellant.
V. Frank Mendicino, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., and Frederick J. Harrison, Legal Intern, Cheyenne, and James N. Wolfe and Harlan Rasmussen, Sheridan County and Pros. Attys., Sheridan, for appellee.
Before GUTHRIE, C. J., McCLINTOCK, RAPER and ROSE, JJ., and ROBERT A. HILL, District Judge.
This is an appeal from a judgment and sentence in the District Court of Sheridan upon a conviction of grand larceny for the theft of a mobile home air cooler. 1 The defendant raises error on two points in this appeal.
1. Refusal to give defendant's Instructions A through D was error, 2 asserted as a violation of due process; with particular reference to Instruction C which finds support in the evidence on question of intent.
2. The inadmissibility of a telephone conversation between the defendant and the owner of the mobile home air cooler for lack of a proper foundation.
We will affirm.
The defendant became aware that Don Bulkley was vacating space 18 in the Mountain View Trailer Park, sometimes referred to as York's Trailer Park, in the City of Sheridan on November 12, 1975. Bulkley was making preparations to have his mobile home unit moved to Douglas. He let the defendant know that he was moving and that the trailer space would be available for rent. The defendant immediately sought the proprietor of the trailer court to consummate a rental of the space, as well as two additional spaces.
A check signed by the defendant's wife was tendered to and conditionally accepted by the son of the trailer park owner when the defendant could not immediately locate the owner. The check was later returned and there is some dispute in the testimony when this occurred.
During the period in which the defendant was making his personal arrangements to secure rental of the trailer park space, Bulkley had completed his move from the space. He had removed some of the outside appurtenances from the mobile home to allow for proper towing, among which was the air cooling unit which he laid to the rear of the trailer space lot. Bulkley noted to the defendant, when asked of his intended disposition of the air cooler, that he did not have the means of hauling it.
The defendant, feeling he had firmed his rental arrangement, proceeded to prepare the space for installation of his mobile home. He was in a hurry to make a trip to Gillette to receive a used pickup truck. His schedule became strained by cleaning the trailer space, taking his wife to the beauty parlor for her beauty appointment and departing from Sheridan on time for his trip to Gillette. He first loaded the air cooler in his pickup truck, took his wife to the beauty parlor and returned to the trailer park to deposit the air cooler in a storage shed located on space no. 9. Apparently, space 9 and space 18 were back to back as the trailer park was laid out.
Bulkley had returned to the trailer park in the meantime to recover his air cooling unit. He could not find it where he left it, and made several telephone calls to locate it, one of which was to the telephone number of defendant's space no. 18. Bulkley testified he had a conversation with a person who identified himself as "Benson." The defendant denies having any telephone conversations with Bulkley; that, in fact, he was enroute to or had arrived in Gillette at the time of the alleged conversation sometime after five o'clock of that evening. There was considerable dispute over the times involved in this sequence of events. We do not have to resolve the factual disputes.
Intervention by the Sheridan Police Department quickly culminated in recovery of the air cooler the following day, November 13, 1975. The defendant was arrested and later convicted of grand larceny.
The defendant relied upon the lack of intent on the part of the defendant as a defense. Instructions A through D convey the essence of this defense in the various statements of the law embodied in these instructions. Instructions A, B and D emphasized in varying stances that which the court had instructed upon in Instructions 7 (a duplicate of No. 11) and 12. The court said in Cullin v. State, 565 P.2d 445, 452 (Wyo.1977):
The difficulty with defendant's Instructions A, B and D is that they are redundant to Instructions 7 and 12; they do not necessarily capture the law consistent with the evidence in this case; and they fail to delineate a defense conforming to the evidence. The duty of the court is discharged when it charges the jury on the general principles applicable in the case. State v. Chambers, 70 Wyo. 283, 249 P.2d 158 (1952); State v. Catellier, 63 Wyo. 123, 179 P.2d 203 (1947). It is not error to refuse a requested instruction which has otherwise been covered by other instructions, even though the principles therein embodied are correct. Blakely v. State,542 P.2d 857 (Wyo.1975); Mares v. State, 500 P.2d 530 (Wyo.1972); Alcala v. State, 487 P.2d 448 (Wyo.1971), cert. den. 405 U.S. 997, 92 S.Ct. 1259, 31 L.Ed.2d 466, reh. den. 406 U.S. 911, 92 S.Ct. 1613, 31 L.Ed.2d 823; State v. Holm, 67 Wyo. 360, 224 P.2d 500 (1950); Orcutt v. State, 366 P.2d 690 (Wyo.1961); State v. Hines, 79 Wyo. 65, 331 P.2d 605 (1958), cert. den. 366 U.S. 972, 81 S.Ct. 1938, 6 L.Ed.2d 1261. It follows, therefore, that incorrect or inapplicable statements of the law in any instructions are properly refused. Simms v. State, 492 P.2d 516 (Wyo.1972), cert. den. 409 U.S. 886, 93 S.Ct. 104, 34 L.Ed.2d 142. Defendant's Instructions A, B and D lack the standing under the cases cited to warrant deference. We find that the jury was adequately instructed on the points raised by these instructions, and further elaboration would serve to unduly emphasize the negation of intent propounded by those instructions.
Instruction C needs to be considered separately because it represents an amorphous attempt to state the defendant's theory of his defense going to the gravamen of the crime. Rule 51, W.R.C.P. This instruction gave three choices that apparently refer to what could be inferred as defenses. They were:
" * * * (1) that it is his own property, or (2) that it is no one's property, or (3) though he knows it is another's property that the owner has given him permission to take it as he did."
There is nothing from the evidence from which it could be logically inferred that the defendant acquired ownership to the air cooler. He certainly knew from the initial conversation he had with Bulkley that the property was not lacking of an identifiable owner. And, the record is devoid of any evidence that Bulkley had given the air cooler to the defendant "to take it as he did." This instruction simply is not supported by any evidence; and, it is burdened with the additional infirmity of hypothesizing a defense, if it is even an instruction that is intended to impart a defense. The defendant maintained in his argument on instructions that this grapeshot instruction bespoke the defense of the case. In this it failed and the court did not act improperly in rejecting it.
The case could be easily dispatched at this point, but a far more serious and searching inquiry is demanded for which the stage has been set by the foregoing discussion. The centripetal question is: Under the circumstances of this case was it fundamental error for the court to fail to instruct on the credible and logical explanation of recently stolen property as supported by the evidence when the defendant has failed to offer an adequate instruction for this purpose?
The incubus of guilt is onerous in these circumstances. It is said in 50 Am.Jur.2d, § 160, p. 346:
" * * * Exclusive possession by the accused of recently stolen goods is, however, a strong circumstance tending to prove guilt, and the corroborating evidence need only be slight to warrant an inference that the accused is the thief. * * * "
See Newell v. State, 548 P.2d 8, 13 (Wyo.1976).
This imposes upon the defendant the burden, indeed almost the duty, to explain his possession of recently stolen property, if he has one at all. Where he has fulfilled this obligation can he be denied an instruction to the jury which adequately enunciates that explanation? The defendant testified that he took possession of the air cooler to get it out of the weather and away from the kids. His explanation, then, pointed to the safe keeping of the air cooling unit. The jury was entitled to treat this explanation as it would and give such weight to it as it might.
The court dealt with a facet of this problem in Blakely v. State, 474 P.2d 127 (Wyo.1970), a case involving the larceny of two calves. The defendant offered an instruction on the retention of the calves in payment of damages as provided by statute. The instruction was refused and prejudicial error was assigned for refusal to instruct on this point. The court said at page 130 of the case:
"When we say, as we do say, that it was necessary for the jury to be apprised of Blakely's main defense and the law pertaining thereto, it becomes apparent that the trial court was required to...
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