State v. Allen

Decision Date17 December 1975
Docket NumberNo. 524,524
Citation237 N.W.2d 154
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Merle Gene ALLEN, Defendant and Appellant. Crim.
CourtNorth Dakota Supreme Court

Syllabus by the Court

1. If the evidence is insufficient to sustain a conviction, the trial court after the evidence on either side is closed on its own motion or on motion of a defendant shall order the entry of judgment of acquittal. Rule 29(a), N.D.R.Crim.P.

2. In a jury trial a motion for judgment of acquittal requires the trial court to determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt.

3. If there is a valid appeal from a jury's verdict, mere nonrenewal of a motion for judgment of acquittal at the close of all evidence does not preclude appellate review of the sufficiency of the evidence.

4. By presenting evidence after a motion for judgment of acquittal is denied at the close of the prosecution's case in chief, a defendant permits this court to review the entire record to determine whether sufficient evidence exists to sustain the verdict.

5. A verdict based upon circumstantial evidence carries the same presumption of correctness as other verdicts and will not be disturbed on appeal unless the verdict is unwarranted.

6. At the trial court level, circumstantial evidence must be conclusive and must exclude every reasonable hypothesis of innocence, but on the appellate court level the role of the Supreme Court is merely to review the record to determine if there is competent evidence that allows the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction.

7. Rule 52, N.D.R.Crim.P., implements the requirement that a defendant is entitled to a fair trial but not necessarily to a perfect trial.

8. Where the errors specified by the defendant as grounds for a new trial do not involve his constitutional rights, it must appear that prejudice occurred, that sustantial injury resulted to his case, and that a different decision probably would have resulted absent the errors before the Supreme Court can reverse a jury verdict.

9. For reasons stated in the opinion, this court concludes that substantial evidence supports the jury's verdict and that the defendant received a fair trial.

Charles J. Gilje, State's Atty., for plaintiff and appellee.

Mackenzie & Jungroth, Jamestown, for defendant and appellant; argued by James R. Jungroth, Jamestown.

ERICKSTAD, Chief Justice.

Merle Gene Allen (hereinafter Gene) appeals from a jury verdict of guilty and from the judgment on conviction of the District Court of Stutsman County finding him guilty of burglary. He asks that his conviction be reversed or that a new trial be granted.

At the close of the prosecution's case, Gene moved for a judgment of acquittal pursuant to Rule 29(a), N.D.R.Crim.P., which motion was denied. He did not renew his motion after he had presented his case nor did he petition the trial court for a new trial.

Gene asserts on appeal that his motion for judgment of acquittal at the close of the prosecution's case should have been granted. In light of that assertion, let us review the development of Rule 29, N.D.R.Crim.P.

Nearly twenty-five years ago, it was declared that a 'general motion for a judgment of acquittal is a proper method to challenge the sufficiency of the evidence.' 4 Barron, Federal Practice and Procedure: Criminal § 2221, p. 233 (1951).

'The motion for judgment of acquittal at the close of the government's case implements 'the requirement that the prosecution must establish a prima facie case by its own evidence before the defendant may be put to his defense' (Cephus v. United States, 117 U.S.App.D.C. 15, 324 F.2d 893, 895 1963)).' 2 Wright and Miller, Federal Practice and Procedure: Criminal § 462, p. 245 (1969).

If the evidence is insufficient to sustain a conviction, the trial court after the evidence on either side is closed on its own motion or on motion of a defendant 'shall order the entry of judgment of acquittal.' Rule 29(a), N.D.R.Crim.P. If the motion is properly made by the defendant,

'. . . the trial judge may not, be (sic) deferring decision on the defendant's motion, allow sufficient evidence to be supplied by the defense or by the prosecution on rebuttal. If the evidence is sufficient when the prosecution rests, as it is in the instant case, any error in failing to rule promptly on the motion is harmless. See Cooper v. United States, 5 Cir. 1963, 321 F.2d 274, 277.' United States v. Guinn, 454 F.2d 29, 33 (5th Cir. 1972), Cert. denied, 407 U.S. 911, 92 S.Ct. 2437, 32 L.Ed.2d 685.

The standard for the trial judge to use in ruling upon a motion for judgment of acquittal has been articulated in three recent cases.

"A reviewing court may only direct a motion for acquittal on the sufficiency of the evidence when (1) it may be said as a matter of law that there exists no evidence of guilt whatsoever upon the record or (2) where there exists no substantial evidence from which reasonable men may say that the defendant is guilty beyond a resonable doubt.' (United States v. May, 419 F.2d 553, 555 (8th Cir. 1969).)' United States v. McIntyre, 467 F.2d 274, 276 (8th Cir. 1972), Cert. denied, 410 U.S. 911. 93 S.Ct. 972, 35 L.Ed.2d 274.

'In this jurisdiction, '(a) motion for acquittal must be granted when the evidence, viewed in the light most favorable to the Government, is such that a reasonable juror Must have a reasonable doubt as to the existence of any of the essential elements of the crime.' (Citations omitted.) If the evidence is such that a reasonable man may have a reasonable doubt as to the defendant's guilt, the case should go to the jury. (Citations omitted.) On the other hand, the trial judge should not allow the case to go to the jury if the evidence is such as to permit the jury to merely conjecture or to speculate as to defendant's guilt.' (Emphasis in original.) United States v. Bethea, 143 U.S.App.D.C. 68, 442 F.2d 790, 792 (1971).

'A motion for a judgment of acquittal enjoins the trial judge to 'determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt.' (Curley v. United States, 81 U.S.App.D.C. 389, 392, 160 F.2d 229, 232 (1947), Cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850.) For this purpose, the judge must 'assume the truth of the Government's evidence and give the Government the benefit of all legitimate inferences to be drawn therefrom.' (Id.) If the evidence, so measured at the point in the prosecution to which the motion is properly addressed, portends to establish guilt beyond a reasonable doubt, it is for the jury to make the decision as to whether it actually does.' Powell v. United States, 135 U.S.App.D.C. 254, 418 F.2d 470, 473 (1969).

The trial judge must determine whether, '(v)iewing cumulatively the totality of the evidentiary items touching on the issue, the jury could reasonably have inferred . . .' guilt. Id. See generally 8 Moore's Federal Practice--Criminal Rules, 29.06 (2d ed. 1975).

In State v. Neset, a 1974 decision of our court involving a procedural scenario identical to the instant case, we said:

'With recent precedent we conclude that a review of sufficiency of the evidence is not precluded, even though the instant appeal is from the judgment only.

'The touchstones hereafter for an effective appeal on any proper issue should be (1) that the matter has been appropriately raised in the trial court so that the trial court can intelligently rule on it, and (2) that there be a valid appeal from the judgment. Any other traps for the unwary on the road to the appellate courthouse should be eliminated.' State v. Haakenson, 213 N.W.2d 394 at 399 (N.D.1973).' State v. Neset, 216 N.W.2d 285, 286 (N.D.1974).

Consistent with Haakenson and Neset, we conclude that mere nonrenewal of a motion for judgment of acquittal at the close of all evidence does not preclude appellate review of the sufficiency of the evidence where appeal is taken from the judgment and sentence of the court. In Neset we analyzed all the evidence that had been presented to the trial court. Neset admitted that he had been driving the vehicle upon a highway, one of two essential elements to the charge of driving a vehicle while under the influence of intoxicating liquor. We found therein that the circumstantial evidence was sufficient to establish the second element, that while operating the motor vehicle he was under the influence of intoxicating liquor.

We reiterate our procedural ruling in Neset that a motion for judgment of acquittal at the close of the prosecution's case in chief preserves the issue of insufficiency of evidence for appellate review, even without a renewal of the motion at the close of all evidence.

A concomitant issue, which we did not explicitly consider in Neset, remains. We must determine whether our review is limited to the record at the time that the motion is made and denied or whether we may consider the entire record. More specifically, does the defendant whose motion for judgment of acquittal at the close of the prosecution's case in chief is denied 'waive' his right to appellate review of the denial as of that stage of the proceedings by submitting testimony in his defense?

The United States Supreme Court has indicated that

'The reviewing courts . . . can seek corroborative evidence in the proof of both parties where . . . the defendant introduces evidence in his own behalf after his motion for acquittal has been overruled. Cf. Bogk v. Gassert, 149 U.S. 17, 13 S.Ct. 738, 37 L.Ed. 631 (1893). 1

Eighteen years later, Justice Douglas, who had dissented without opinion in Calderon, noted a...

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