State v. Blow, 91-191
| Decision Date | 17 June 1992 |
| Docket Number | No. 91-191,91-191 |
| Citation | 135 N.H. 640,608 A.2d 1309 |
| Parties | The STATE of New Hampshire v. Robert BLOW. |
| Court | New Hampshire Supreme Court |
John P. Arnold, Atty. Gen. (Donald Feith, Sr. Asst. Atty. Gen., on the brief), for the State.
Michael K. Skibbie, Asst. Appellate Defender, Concord, on the brief, for defendant.
The defendant, Robert Blow, was found guilty of the crime of burglary in a jury trial (Groff, J.). He asserts that the State introduced insufficient evidence as to whether he was licensed or privileged to enter the premises that were burglarized, RSA 635:1, and that the State impermissibly argued that his post-arrest silence was a basis upon which to find the requisite lack of privilege or license. We affirm.
On July 26, 1990, Vitto's Market, a convenience store located on Bartlett Street in Manchester, was the subject of a burglary. Steven Marshall, who lived across the street, had a "vivid" view of the front of the market from his second floor apartment window. The area in front of the store was lighted by street lights and spotlights. In the early morning hours of July 26, Marshall saw a person in front of the store behaving in a peculiar manner and acting furtively by hiding from the view presented by the headlights of approaching vehicles. Marshall soon thereafter heard the breaking and crashing of glass and saw the same person pulling and breaking jagged pieces of glass from the frame of the store window. Marshall called the police and then watched the person in question enter the store and look around in the area of the cash register. Upon the arrival of the police, Marshall observed the defendant's arrest.
The defendant concedes that the store was closed at the time of the incident. At the time of his arrest, the defendant said nothing, offering no explanation for his presence in the market. Later that day, however, he told the police that on the night in question, he drove around the city and determined that Vitto's "looked like a good place to break into." He explained that he parked his car, removed a tire iron from it, and broke the glass in the store's front window. He recounted that once inside the store he removed a canister of coins and cigarettes, and upon seeing a police officer, he departed through the rear door.
On appeal the defendant presses two arguments: (1) that the evidence was insufficient to sustain the State's burden of proving his lack of license or privilege to enter the premises; and (2) that the prosecutor in arguing the case to the jury improperly sought to rely upon his silence at the time of arrest as evidence as to whether his presence in the building was either licensed or privileged.
One of the elements of the offense which the State has the burden of proving is the defendant's lack of license or privilege to enter the building that was the subject of the burglary. This element is customarily proved by the State calling as a witness an owner of the premises or someone such as an agent or store manager who has firsthand knowledge of those persons or classes of persons who may lawfully enter the building and eliciting testimony that excludes the defendant from that group of persons. Such an approach to the proof of a necessary element of the State's case would appear to be the better and safer practice. In this case, however, the State relied upon circumstantial evidence, including the defendant's admissions, to prove this important and elementary point in its case.
We hold that the circumstantial evidence was sufficient. There was evidence that the defendant was seen by an eyewitness who...
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State v. Haley
...the officer's words, we find no abuse in the trial court's determination that any injustice was curable. See State v. Blow, 135 N.H. 640, 642-43, 608 A.2d 1309, 1311 (1992). All concurred. ...
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State v. Folley
...of the stolen item did not testify, circumstantial evidence was sufficient to prove lack of permission); see also State v. Blow, 135 N.H. 640, 641-42, 608 A.2d 1309 (1992) (concluding that circumstantial evidence was sufficient to prove lack of license or privilege to enter a building). Acc......
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Caliri v. State Dept. of Transp.
...inferences that the jury might have formed as to the application of the discretionary function exception. See State v. Blow, 135 N.H. 640, 643, 608 A.2d 1309, 1311 (1992). All concurred. ...
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State v. Bissonnette, 92-631
...the evidence, not in isolation. See State v. Cyr, 122 N.H. 1155, 1159-60, 453 A.2d 1315, 1318 (1982); see also State v. Blow, 135 N.H. 640, 641-42, 608 A.2d 1309, 1311 (1992). The defendant insists that rational conclusions other than that the defendant was the burglar may be drawn from the......