DeSersa v. State

• Decision Date: 10 December 1986
• Docket Number: No. 86-131,86-131
• Citation: 729 P.2d 662
• Parties: Hubert Charles DeSERSA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 662

729 P.2d 662

Hubert Charles DeSERSA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 86-131.

Supreme Court of Wyoming.

Dec. 10, 1986.

William S. Edwards, Gillette, and Ramon A. Roubideaux, Rapid City, S.D., for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Senior Asst. Atty. Gen., and Judith A. Patton, Asst. Atty. Gen., for appellee.

Before THOMAS, C.J., and BROWN, CARDINE, URBIGKIT and MACY, JJ.

URBIGKIT, Justice.

A conviction of attempted burglary raises appeal claims of insufficiency of the evidence and impermissible prosecutorial comment, violating the constitutional right against self-incrimination. We affirm.

Stated issues to be considered are:

1. Sufficiency of the evidence for conviction as a matter of law.

2. Comment of prosecutor in final argument violated defendant's constitutional rights and required a mistrial then and a reversal now.

FACTS

As generally explained in the background statement in appellant's brief "On July 30, 1985, [the City of] Casper was observing a yearly celebration called Parade Day and DeSersa [appellant herein] and others joined in the festivities which involved socializing and consumption of intoxicating beverages. That afternoon and through the events in question, he was dressed in a black pullover knit shirt, light blue striped jeans and blue and white tennis shoes. Eventually he came to the Downtowner Motel around midnight, having had five to six beers that afternoon and evening. He had ten or twelve beers the entire day. He then left and went to a friend's house for further socializing and drinking and finally left to go check on his car at the Downtowner."

At 154 North Beech Street in downtown Casper stands a multi-story apartment facility with the Quick Cash Pawn Shop on the ground floor. William Brennaman, a resident in a second-story apartment, testified at trial that at about 3:45 on the morning of July 31 he heard glass breaking at a window into the pawn shop, directly below his apartment:

"I [saw] a man, Indian nationality kicking the window in."

Brennaman tried to go back to sleep, but the noise continued and he dialed 911 to alert the police. Twenty or twenty-five minutes later, during which period the activity at the downstairs window remained constant, he saw the police officers arrive.

Officer Bachert was dispatched at about 4:20 a.m. from the police department. He testified that upon arriving at the pawn shop he saw the appellant using a knife to "hack away" at the plywood covering the window on the inside of the broken glass. According to his testimony, when appellant saw the police car he "placed the knife * * * on the ground and began to walk west across the parking lot away from the scene." When he was apprehended, the appellant stated, "You can't charge me; I'm drunk and don't know what I did."

The knife was recovered and marked for trial introduction. Both Brennaman and Officer Bachert positively identified appellant at trial, as did Officer Lord who arrived within minutes and saw Bachert and DeSersa at the scene. Other testimony indicated that the appellant had been a customer of the pawn shop on prior occasions.

Appellant claims that

"[h]e was walking and cut across a parking lot behind the Quick Cash Pawn Shop on his way to the Downtowner when he observed the police car ahead and when he turned to go the other way he was boxed along the parking area side of the building by another police car."

Among others, appellant called as witnesses Delbert Richards and Pete Blakely, who had been drinking with DeSersa on July 30, 1985. Richards and Blakely were called to testify about the clothes worn by DeSersa on that occasion, in order to challenge the identification testimony of Brennaman, Bachert and Lord.

The State called rebuttal witness Lonnie Tebeest who testified about the condition of the plywood, and further about an oral statement made by appellant after he was given his Miranda warnings:

"I was asking him about the reason for his arrest earlier that morning. Mr. Desersa at that time advised me he had been drinking and that he blacked out, that he didn't recall anything about what had happened and he specifically did not recall what time it had happened."

Sufficiency of The Evidence

In his sufficiency-of-the-evidence attack on his conviction, appellant asserts:

"This is a classic case where the police arrived and arrested the suspect before the crime was committed. They then attempted to make out a case of attempted burglary and possession of a burglary tool.

* * *

* * *

"The prosecutor attempted to create the crime of attempted burglary by use of fabricated evidence, either carelessly handled or manipulated, unsatisfactory identification and insinuation and innuendo as to the necessary showing that defendant had made a substantial step toward the commission of the crime of burglary. The evidence shows no such substantial step in the form of an entry or even the possibility of an entry."

In addition to the direct attack on the witness' identification and the officer's credibility, appellant's insufficiency claim includes (1) failure to disprove the defense of impossibility; (2) inadequate proof of a substantial step toward the commission of the crime; (3) failure to deny or negate abandonment of possible criminal effort; and (4) failure to prove specific intent. We examine each of appellant's claims in light of the evidence before the jury. Intoxication as a defense was not presented as a trial theory. Cf. Crozier v. State, Wyo., 723 P.2d 42 (1986).

Appellant is thoughtful and ingenious in his presentation. However, except for the last contention of failure to prove specific intent, each of the other claimed insufficiencies of the evidence is, in the factual stature of this case, properly within the province of the jury to determine by accepting or rejecting the trial evidence. Cheatham v. State, Wyo., 719 P.2d 612 (1986); Russell v. State, Wyo., 583 P.2d 690, 700 (1978), "[I]t is for the jury, not this court on appeal, to sort out any conflicts"; Fresquez v. State, Wyo., 492 P.2d 197 (1971).

Judging from the photograph in evidence, it would have taken considerable time to get past the broken glass windows and into the building by cutting a sufficient hole in the plywood. It was not impossible, although certainly time consuming. The broken glass and mutilated plywood was sufficient evidence that a substantial step toward the commission of the crime had been taken. Abandonment was clearly contradicted by the testimony of the arresting officer and Mr. Brennaman based on their actual observations. Appellant was positively identified, and his trial counsel failed to impeach the veracity of the police officer or the eyesight of the apartment dweller.

In summary, there was believable evidence before the jury from which it was entitled to find that the crime was possible; the appellant took a substantial step toward its commission; the appellant did not abandon his criminal activity; and it was indeed appellant who committed the crime. Sufficiency of the evidence on these issues exists. United States v. Sutton, 801 F.2d 1346 (D.C.Cir.1986); Dangel v. State, Wyo., 724 P.2d 1145 (1986); Cowell v. State, Wyo., 719 P.2d 211 (1986); Lewis v. State, Wyo., 709 P.2d 1278 (1985). The Supreme Court of Minnesota recently restated general principles for appellate review in a rational and refined explication:

"In reviewing the sufficiency of evidence in a criminal case, this court makes a painstaking review of the record to determine if the evidence is sufficient to permit the jury to reach the conclusion that it did. [Citation.] The court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that a defendant was proven guilty of the offense charged. [Citation.] The court considers the evidence in the light most favorable to the verdict and will assume that the jury disbelieved any testimony in conflict with the result it reached. [Citation.]" State v. Richardson, Minn., 393 N.W.2d 657, 661-662 (1986).

The only important remaining sufficiency issue is proof of intent to steal as an element of the criminal offense. See discussion of specific intent as recently restated by this court in State v. Crozier, supra, quoting from Dorador v. State, Wyo., 573 P.2d 839 (1978). Both appellant and appellee rely on the intent standard for the offense of burglary expressed in Mirich v. State, Wyo., 593 P.2d 590, 591 (1979):

" * * * We approach this assertion of error in light of our long-established rule that, when a defendant charges a lack of sufficient evidence to sustain the jury verdict, it is the duty of the supreme court to decide whether there is sufficient evidence on which the jury could base its verdict and, in the discharge of that duty, this court must view the evidence in the light most favorable to the State. * * * In determining the sufficiency of the evidence on appeal, the test is not whether the evidence establishes guilt beyond a reasonable doubt for members of the supreme court, but rather whether the evidence of record is sufficient to form a basis for reasonable inference of guilt beyond a reasonable doubt to be drawn by the jury when the evidence is viewed in a light most favorable to the State."

Elements urged by the State as evidentially sufficient for this conviction are:

1. time of day;

2. persistent effort to break out the plywood (20 to 25 minutes);

3. knowledge of contents of the pawn shop;

4. physical conduct when the police arrived;

5. position of the knife and proof of damage to the plywood covering; and

6. res-gestae statement at the scene and subsequent statement at the police station.

Applying the rationale and reasoning of Mirich, this court concludes that there was evidence from which...