State v. Bohe, Cr. N

• Decision Date: 24 October 1989
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Merle Thomas BOHE, Defendant and Appellant. o. 890003.
• Court: North Dakota Supreme Court

Page 277

447 N.W.2d 277

STATE of North Dakota, Plaintiff and Appellee, v. Merle Thomas BOHE, Defendant and Appellant.

Cr. No. 890003.

Supreme Court of North Dakota.

Oct. 24, 1989.

See publication Words and Phrases for other judicial constructions and definitions.

Feldner & Danielson, Mandan, for defendant and appellant; argued by Rodney A. Danielson.

Wayne D. Goter, Asst. State's Atty., Mandan, for plaintiff and appellee.

GIERKE, Justice.

This is an appeal by Merle Thomas Bohe from a district court judgment finding him guilty on one count of accomplice to burglary and one count of attempted burglary, both class C felonies, in violation of Sections 12.1-03-01 and 12.1-22-02 respectively of the North Dakota Century Code. We affirm the district court's judgment.

On or about July 12, 1987, the Mandan, North Dakota Community Center was burglarized with entry being made by breaking out a glass window near the south doors of the building. Inside, several video machines had been broken into and the coins deposited in the machines had been stolen.

In the early morning hours of August 21, 1987, an attempted break-in was reported at the Speedway Restaurant located also in Mandan. An alarm system in the building was set off thereby alerting the Mandan Police Department of the attempted burglary and scaring off the burglar. Officer Dennis Bullinger, upon arriving at the scene, noticed that entry had been attempted by prying open a window and removing a screen. Further, Officer Bullinger noticed one set of footprints leading to and from a nearby cornfield, some burglary tools contained in a bag at the edge of the field and a pry bar and flashlight inside the restaurant just below the window where entry had been attempted.

During an August 13, 1987, non-custodial visit with Officer Bullinger, Bohe voluntarily consented to having Bullinger search his vehicle. Bullinger observed a flashlight in Bohe's vehicle identical to the flashlight subsequently found at the Speedway Restaurant. Further, during this August 13, 1987, visit, Bohe informed Officer Paul Leingang of the Mandan Police Department that there was a tire iron on the roof of the Mandan Community Center which was used in the July 12th burglary of the Center. On August 16, 1987, Officer Leingang, present at the Community Center investigating an unrelated burglary, asked a janitor to go on the roof and look for a tire iron. The janitor retrieved a tire iron and gave it to Officer Leingang.

Thereafter, Bohe was arrested as an accomplice to the Community Center burglary and for the attempted burglary of the Speedway Restaurant. A preliminary hearing was held on June 6, 1988, and Bohe was bound over to district court. A jury trial was held on December 8-9, 1988. After opening arguments, counsel for Bohe moved the court to exclude evidence of Bohe's previous criminal record ¹ arguing that such evidence would unfairly prejudice Bohe. The court denied the motion and ruled that Bohe's felony and misdemeanor convictions would be admissible for purposes of impeachment if Bohe should testify. Additionally, during trial, Bohe objected to the admissibility of the tire iron found on the Community Center roof based on insufficient chain of custody grounds. Once again, the court overruled the objection and allowed the tire iron into evidence.

The jury returned a verdict finding Bohe guilty of the offenses of accomplice to a burglary and attempted burglary. Judgment was entered by the district court on December 20, 1988, and Bohe received maximum 5-year sentences on both charges to be served concurrent with each other but consecutive to another sentence Bohe was then serving. This appeal followed.

Bohe raises three issues on appeal. Initially, Bohe contends that the trial court erred in admitting into evidence the tire iron due to an insufficient chain of custody. Next, Bohe contends that the trial court committed reversible error by allowing his prior felony convictions into evidence. Finally, Bohe asserts that the trial court committed reversible error by allowing his prior misdemeanor record into evidence.

Initially, Bohe argues that the trial court committed reversible error by allowing the tire iron found on the roof of the Community Center to come into evidence. Bohe bases his argument on insufficient chain of custody grounds claiming: (1) that the State did not prove a chain of custody from the time of the commission of the offense to the time of trial and (2) that the State failed to prove the tire iron was the same one used in the Community Center burglary.

We have held that a proper chain of custody is a foundational requirement to account for the whereabouts of physical evidence up until the time it is admitted at trial to insure that the physical evidence is in "substantially the same condition at the time it is admitted into evidence." State v. Skjonsby, 319 N.W.2d 764, 789 (N.D.1982). An unbroken chain of custody is not necessarily a condition for the admissibility of evidence. The admission or exclusion of demonstrative evidence is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Victory Park Apartments, Inc. v. Axelson, 367 N.W.2d 155, 163 (N.D.1985). If the trial court is reasonably satisfied that the item offered is what it is purported to be and that the condition of the item is substantially unchanged, it is properly admissible into evidence. State v. Hartsoch, 329 N.W.2d 367, 370 (N.D.1983). Any defects in the chain of custody goes to the weight of the evidence rather than admissibility of the evidence. Hartsoch, supra, 329 N.W.2d at 370.

Officer Leingang testified that the tire iron was in his custody since it was recovered from the roof and that the tire iron was rusted as it was when it was retrieved from the Community Center roof. Bohe asserts that chain of custody requirements commence upon the commission or happening of the event in question. Thus, he argues that since Leingang's retrieval of the tire iron occurred approximately one month after the Community Center burglary the State has not proven an adequate chain of custody due to the one month delay in retrieving the tire iron after the time of the burglary.

We do not feel this argument has merit in a case such as this where the physical object, a tire iron, is not readily susceptible to alteration. By strictly interpreting Bohe's argument, no physical evidence would be admissible unless the police officers actually witnessed the crime or event of which the physical evidence came about. According to Bohe's argument, there would always be a defect in the chain of custody unless the physical evidence was retrieved immediately after the commission of the crime.

Alternatively, Bohe argues that the State has not proven that the tire iron was the same tire iron that was used in the Community Center burglary. We addressed a similar issue in State v. Motsko, 261 N.W.2d 860 (N.D.1978). In Motsko, the evidence showed an assault and kidnapping victim had possibly been injured by a blunt object. We held that a pipe found beside the defendant's house near the scene of the crime was properly admitted into evidence. We noted in Motsko that the State's inability to prove how the pipe was transported from the car, where the assault took place, to the place where it was found beside the house only affected the weight of the evidence, not its admissibility. See also State v. Hoff, 324 N.W.2d 820 (S.D.1982) (tire iron found in search of defendant's car not inadmissible in defendant's trial for burglary on grounds that State had failed to connect the tire iron with the door damaged as a result of the burglary); Gaertner v. State, 35 Wis.2d 159, 150 N.W.2d 370 (1967) (tire iron found near the scene of an attempted burglary admissible where defendant's accomplice, a witness for the state, testified that a tire iron had been used in the commission of the crime).

However, the tire iron was properly allowed into evidence on more fundamental grounds. Ironically, it was Bohe himself who provided the necessary corroborating evidence linking himself with the tire iron found on the Community Center roof by informing Officer Leingang that there was a tire iron on the roof of the Mandan Community Center which was used in the July 12th burglary of the Center.

The trial court allowed the tire iron into evidence "for whatever value anyone cares to place on it ... whatever tie ins there are the jury will have to determine...." Thus, we conclude that the trial judge properly admitted the tire iron into evidence and did not abuse his discretion in making his determination.

Bohe argues as his second assertion of error that the trial court improperly admitted his prior felony convictions into evidence for purposes of impeachment, thereby committing reversible error.

Rule 609(a), N.D.R.Ev., governs the admissibility of evidence of prior convictions for impeachment purposes. This sections reads as follows:

"For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment."

We have stated before that while crimes punishable by death or imprisonment in excess of one year require the court to determine whether the probative value of such evidence outweighs the prejudicial effect, no such balancing need occur when the crime is one involving dishonesty or false statement. These crimes are automatically admissible for impeachment purposes because they have the greatest probative value on the issue of truth and veracity. State v. Eugene, 340 N.W.2d 18, 30 (N.D.1983). Howe...