Edwards v. State, 7273

Citation90 Nev. 255,524 P.2d 328
Decision Date03 July 1974
Docket NumberNo. 7273,7273
PartiesCharles Ray EDWARDS, Appellant, v. The STATE of Nevada, Respondent.
CourtSupreme Court of Nevada

Morgan D. Harris, Public Defender, and Brian L, Greenspun and Howard N. Ecker, Deputy Public Defenders, Las Vagas, for appellant.

Robert List, Atty. Gen., Carson City, Roy A. Woofter, Dist. Atty., and Charles L. Garner and Daniel M. Seaton, Chief App. Deputies, Las Vegas, for respondent.



About dawn July 8, 1972, Las Vegas police answering a silent alarm captured appellant on the roof of Roxy's Cleaners. Appellant was charged with burglary, and as an habitual criminal because he twice had been convicted of robbery. See: NRS 205.060 and 207.010. Although the jury found appellant guilty of burglary, no transcript existed to show he had counsel when sentenced for one of the prior robberies. Hence, our district court sentenced appellant for burglary without enhancement, to 5 years concurrently with a recent jail sentence for a gross misdemeanor. On appeal, appellant's prime contention, which we reject, is that the evidence was insufficient to sustain the jury's determination of guilt.

Officer O'Hair testified he and Officer Lee arrived at Roxy's within two minutes of a radio dispatch. Arriving some 5 seconds earlier, Officers Rose and Norberg covered the front or west side of the multi-business complex. O'Hair and Lee took the rear side to the east. In O'Hair's words: 'As we pulled around in back and stopped, . . . I observed (appellant) come up from the roof line--he was below the roof line and he raised up. He turned and saw these officers and immediately turned and tan across the roof line west, towards the front of the business.'

Lee testified that as he and O'Hair alighted from their vehicle, O'Hair announded seeing a man on the roof. As Lee climbed to the roof, he saw appellant near the roof's west edge and ordered him to stand still. Then, Lee 'finished getting up on the roof and approached the subject and advised him that he was being placed under arrest for burglary.' 'Five to seven feet' from an open vent hole in the roof, he saw stacked clothing, later proved stolen from the cleaners. Lee gave a 'Miranda warning' and directed appellant to climb down to O'Hair, whom Norberg had joined. Later, when one of the officers below told him a man named 'Bruce' was in the cleaners, Lee climbed down through the vent hole and arrested James Bruce Bolden.

Norbert testified that while guarding the front (west) side with Rose, he heard a voice say someone was on the roof. Then, appellant appeared, and as Norberg testified: 'We told him to halt. We told him to place his hands above his head and held him there until Officer Lee could get on the roof and restrain the suspect.' Next, Norberg 'went around the back of the building to assist Officer Lee and Officer O'Hair to bring the subject down from the roof.' Thereafter, Norberg '(p)laced him in handcuffs and escorted him around to the front and placed him in the police vehicle where I had read him his Miranda rights.' Thereupon, Norberg testified, appellant waived his right to silence, saying someone named 'Bruce' was with him in the building. 1

Rose testified to being with Norberg when appellant was stopped at the front of the building, and later when Norberg advised appellant of his rights. Rose also said he helped impound clothing stacked on the roof 'maybe five feet away from the hole.'

Aside from Officer Adams, who photographed the scene, and unsuccessfully processed for fingerprints, the State's only other witness was Mrs. Jenkins, owner of Roxy's. She testified that when she locked the premises the night before, items later found on the roof were inside, and that she had not given Edwards of Bolden permission to enter. On cross-examination, she said the alarm which alerted the police was activated by an electric eye inside the premises, and on redirect examination without objection, testified to a prior experience in which about ten minutes had been necessary for a police response.

Appellant contended he became a 'victim of circumstances,' upon climbing on the roof to warn Bolden he had been spotted and the police might be coming. 2 As witnesses, appellant's counsel called Bolden (who had pleaded guilty to the burglary), appellant's wife, one Thelma Banks, and finally appellant himself. Evidently, the jury chose not to believe them.

1. Because burglary is commonly committed in secret, often at night, it frequently must be proved by circumstantial evidence. People v. Naughton, 270 Cal.App.2d 1, 75 Cal.Rptr. 451, 455 (1969); People v. Huber, 225 Cal.App.2d 536, 37 Cal.Rptr. 512, 514 (1964); People v. Jordan, 204 Cal.App.2d 782, 22 Cal.Rptr. 731, 734 (1962); People v. Nichols, 196 Cal.App.2d 223, 16 Cal.Rptr. 328, 330 (1961). As the court instructed the jury, every person concerned incommitting an offense, whether he directly commits the act constituting the offense, or aids or abets it, is a principal and liable as such. NRS 195.020; cf. People v. Jordan, cited above. Moreover, the test for sufficiency upon appellate review is not whether this court is convinced of the defendant's guilt beyond a reasonable doubt, but whether the jury, acting reasonably, could be convinced to that certitude by evidence it had a right to accept. Crowe v. State, 84 Nev. 358, 441 . p.2d 90 (1968). Accordingly, we must decide if the jury acted unreasonable in determining there was no reasonable doubt of appellant's guilt. In doing so, we must remember, as the jury was instructed: 'A reasonable doubt is one based on reason. It is not mere possible doubt, but is such a doubt as would govern or control a person in the more weighty affairs of life. If the minds of the jurors, after the entire comparison and consideration of all the evidence, are in such a condition that they can say they feel an abiding conviction of the truth of the charge, there is not a reasonable doubt. Doubt to be reasonable must be actual and substantial, not mere possibility or speculation.' NRS 175.211(1).

Judges possess no unique faculty for perceiving relationships, discerning contradictions, drawing inferences, and making measured judgments. Accordingly, by noting salient aspects of the evidence, which we believe combine to justify the jury's verdict, we do not suggest the record contains no further support.

First, police captured appellant, not on the ground, but on the roof of looted premises, near the loot and the point of forced entry--a place one not criminally involved was unlikely to be, and a place appellant had no right to be. Quite aside from inferences the jury might draw from these facts, a legal presumption exists that an unlawful act is done with unlawful intent. NRS 47.250(1).

Second, from testimony of three policemen, supported by a photograph, the jury could decide the loot was so far from the vent hold that Bolden could not merely have thrust himself up through the hole and stacked the clothing, as he testified. 3 Although appellant and Bolden both asserted the clothing was 'next to the vent,' the jury could properly believe the officers instead. Then, the jury could decide it would be unnatural for Bolden, working alone and in haste, to climb completely out onto the roof to place the clothing where it was found--particularly since Bolden did not say he did so, and since no reason appears for a lone burglar to proceed thus. Hence, an inference would permissibly follow that appellant, the only person on the roof, had received and stacked the clothing, actively participating in the burglary with Bolden.

Third, that appellant attempted to flee when the police arrived is a circumstance supportive of an inference of guilt. McGuire v. State, 86 Nev. 262, 468 P.2d 12 (1970); Williams v. State, 85 Nev. 169, 451 P.2d 848 (1969).

Fourth, although appellant testified he attempted to dissuade Bolden from the burglary in question, he admittedly was with Bolden shortly before the crime, discussing its advisability. This court previously has held '(p)resence, companionship, and conduct before and after the offense are circumstances from which one's participation in the criminal intent may be inferred.' Bayman v. Sheriff, 89 Nev. 86, 506 P.2d 1259 (1973); Johnstone v. Lamb, 89 Nev. 38, 505 P.2d 596 (1973); Robertson v. Sheriff, 85 Nev. 681, 462 P.2d 528 (1969). In this regard, it should particularly be noted that Officer Norberg testified appellant waived his right to silence, saying he was with a man named 'Bruce' who was inside the premises, but falsely saying he did not know Bruce's last name.

Such facts, taken together, we think establish a prima facie case, which the testimony of appellant and his witnesses did not of necessity dispel. Appellant's justification for his presence on the roof required the jury to believe: (1) that appellant innocently learned Bolden was considering a burglary of Roxy's; (2) that appellant fortuitously discovered Bolden was proceeding with his unlawful purpose, by overhearing two men not produced as witnesses; and (3) that appellant improvidently and perhaps unnecessarily went onto the roof to warn Bolden he had been seen, although appellant recognized the police might well be on the way. On every phase of this explanation, the testimony of appellant and his witnesses was inconsistent, fraught with inherent improbabilities, and contradicted in material respects by the police who testified.

First, for example, the explanation's initial phase suffered because Bolden said he did not discuss burglary prospects with appellant; whereas, appellant and his wife said burglary was discussed at Henry's Bar, next door to the crime scene, but differed on what was said. Appellant's wife said appellant opposed burglary of Roxy's as 'penitentiary bait.' Appellant did not claim to have opposed the burglary on legal or ethical grounds, but because it wasn't 'worth it.'


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