Leppek v. State, 5521

Citation636 P.2d 1117
Decision Date04 December 1981
Docket NumberNo. 5521,5521
PartiesLarry James LEPPEK, a/k/a Kenneth Verl Hart, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtUnited States State Supreme Court of Wyoming

Gerald M. Gallivan, Director, Wyoming Defender Aid Program, Michael H. Schilling Steven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., Allen C. Johnson, Senior Asst. Atty. Gen., Dennis C. Cook, Legal Intern, Cheyenne, and Rick Anderson, Powell, for appellee.

Appellate Counsel, Wyoming Public Defender Program, and Steven E. Weerts, Student Director, Wyoming Defender Aid Program, Laramie, for appellant.

Before ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.

ROONEY, Justice.

Appellant-defendant was found guilty, after a jury trial, of burglary in violation of § 6-7-201, W.S.1977. 1 On appeal from the judgment and sentence, the appellant contends that the district court erred in denying appellant's motion for judgment of acquittal because (1) the evidence of intent to steal is not sufficient to sustain the burglary conviction and (2) it is impossible to commit the crime of burglary of a business establishment during the time it is open to the general public.

We affirm.

The Amended Information charged that the appellant:

" * * * did unlawfully enter or attempt to enter a room within a building or dwelling without the consent of the person in lawful possession and with the intent to steal, namely that Larry James Leppek, a/k/a Kenneth Verl Hart, did enter the basement of the Skyline Drug store located on Bent Street in Powell, Park County, Wyoming, without the consent of Ken Witzeling (sic), the owner thereof, with the intent to steal, in violation of § 6-7-201, W.S.1977, a FELONY. (maximum penalty 14 years)"

The fact that appellant entered Skyline Drug through the rear entrance 2 is not contested. This entrance is located on the alley behind Skyline and opens into the store's freight room. From the freight room, there is an entrance into the store's retail sales area. There is also a stairway which leads from the freight room into the basement storeroom. At the time appellant entered Skyline, it was open for business.

Shortly after appellant entered the freight room, Mr. Carnley, a store employee, saw him standing in a small alcove located between the stairway to the basement and the entrance to the retail sales area. Thereafter, appellant entered the retail sales area where he purchased a pack of cigarettes. Then, he returned to the freight room.

Carnley noticed appellant re-entering the freight room, and he followed him. As Carnley neared the entrance to the freight room, he heard the door leading to the alley open and close quickly. Then he heard the sound of footsteps on the stairs leading to the dark basement. Carnley looked into the freight room and waited a short time for the basement lights to come on. They didn't.

At that point, Carnley was joined by Mr. Witzling, the owner of Skyline. Together they went into the basement, turning on the lights as they went. After searching most of the basement, Carnley found appellant kneeling behind a four-foot high counter with his head down. Carnley asked appellant if he could help him, and appellant replied by saying "boo" and laughing. Upon being asked what he was doing in the Appellant was escorted back to the freight room and left with Carnley while Witzling went to call the police. Appellant pushed Carnley away from the back door and ran into the alley. However, Carnley was able to grab and detain appellant in the alley until Witzling arrived. Together they pulled him back into the store. When the police arrived, appellant was arrested. The rear door was found to open freely when it was checked by the police.

basement, appellant replied that he was just fooling around. Appellant later told Witzling and the investigating police officer that he had been unable to open the back door and had gone into the basement looking for a way out.

SUFFICIENCY OF EVIDENCE

The defendant contends that the district court erred in denying the motion for judgment of acquittal because there was insufficient evidence of intent to steal. Intent to steal is an essential element of burglary. Section 6-7-201(a), W.S.1977. 3

In reviewing the denial of a motion for judgment of acquittal, we examine and accept as true the evidence of the prosecution together with all logical and reasonable inferences to be drawn therefrom, Aragon v. State, Wyo., 627 P.2d 599, 602 (1981); Chavez v. State, Wyo., 601 P.2d 166, 168 (1979); Russell v. State, Wyo., 583 P.2d 690, 694 (1978), leaving out entirely the evidence of the defendant in conflict therewith, Grabill v. State, Wyo., 621 P.2d 802, 803 (1980); Chavez v. State, supra; Russell v. State, supra.

A motion for judgment of acquittal is to be granted only when the evidence is such that a reasonable juror must have a reasonable doubt as to the existence of any of the essential elements of the crime. Or, stated another way, if there is substantial evidence to sustain a conviction of the crime, the motion should not be granted. Aragon v. State, supra; Chavez v. State, supra. This standard applies whether the supporting evidence is direct or circumstantial. Cloman v. State, Wyo., 574 P.2d 410, 416 (1978); Johnson v. State, Wyo., 562 P.2d 1294, 1297 (1977). See also Blakely v. State, Wyo., 542 P.2d 857, 863 (1975); Harris v. State, Wyo., 487 P.2d 800, 801 (1971).

Under this standard of review, there was substantial evidence in this case of intent to steal at the time the appellant entered the basement. Appellant was found kneeling behind a counter with his head down, and he later attempted to flee. As we have said:

" * * * Flight or hiding will, under the proper circumstances, be sufficient evidence from which a jury might properly infer an intent to steal. State v. Liston, 1974, 95 Idaho 849, 521 P.2d 1028; 12 C.J.S. Burglary, § 55; and see generally cases digested at West's Digest System, Burglary, Key Number 41(3). * * * " Mirich v. State, Wyo., 593 P.2d 590, 593 (1979).

Additionally, the fact that appellant opened and closed the rear door just before going into the basement evidenced his intent to cause a belief that he had left the store, and thus allow a surreptitious entry into the basement.

Also, the basement was dark when appellant entered it. It is difficult to perceive a legitimate purpose or intent for one to enter a stranger's darkened basement. The jury could have reasonably concluded from the evidence in this case that appellant had the requisite intent to steal when he entered the basement of Skyline Drug.

CONSENT TO ENTRY

Appellant also contends that he was entitled to "a judgment of acquittal because under Wyoming law it is impossible to commit the crime of burglary of a business establishment open during regular hours." One of the elements of burglary is the entry, or attempted entry, of a place without the consent of the person in lawful possession. 4 Section 6-7-201(c) 5 provides that the entry into a place during the time it is open to the general public is with consent. ...

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