State v. Boyer
| Decision Date | 13 October 1978 |
| Citation | 392 A.2d 41 |
| Parties | STATE of Maine v. Richard W. BOYER. |
| Court | Maine Supreme Court |
William P. Donahue, Dist. Atty., Joseph A. Wannemacher (orally), Asst. Dist. Atty., Alfred, for plaintiff.
Ina H. Hawley, Cornish (orally), for defendant.
Before McKUSICK, C. J., and POMEROY, WERNICK, DELAHANTY, GODFREY and NICHOLS, JJ.
The defendant appeals from a judgment of the Superior Court, York County, finding him guilty, after a jury verdict, of attempted burglary, 17-A M.R.S.A. §§ 152 and 401. The sole issue on appeal is whether the State introduced evidence sufficient to establish each element of the crime. We deny the appeal.
The defendant did not move for a judgment of acquittal at the close of all of the evidence, M.R.Crim.P. 29(a), or after verdict, M.R.Crim.P. 29(b), nor did he move for a new trial, M.R.Crim.P. 33. The defendant's consequent failure to present the sufficiency issue to the presiding Justice radically narrows the scope of appellate review to the "manifest error-serious injustice" rubric. State v. Smith, Me., 389 A.2d 314, 315 (1978).
The testimony, taken in the light most favorable to the jury's verdict. State v. Smith, Me., 382 A.2d 40 (1978), indicates that the defendant was discovered by police at about midnight at the rear of a small variety store in Sanford. The rear storm door was broken, its screen was torn off, and its sash had been removed. A window was broken, and the defendant had cuts on his arm and a cloth wrapped around his hand. At trial, the defendant took the stand and explained that he had been highly intoxicated, that he had gone behind the building to relieve himself, and that he had blacked out and damaged the premises in his fall. Obviously disbelieving his story, the jury returned a guilty verdict, and this appeal followed.
The defendant now argues that the evidence introduced by the State was insufficient to establish the elements of the crime charged. Attempted burglary is established on these facts by proving that the accused attempted to enter a structure while intending to commit a crime therein. We have repeatedly held that both elements attempted entry and intent can be established by circumstantial evidence. State v. Maples, Me., 343 A.2d 583, 586 (1975); State v. York, Me., 324 A.2d 758, 769 (1974). In neither of the above-cited cases was the circumstantial evidence significantly stronger than that introduced here. Indeed, the case at bar is virtually on point with...
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State v. McAdams
...had not been properly raised below. We stated: "The defendant urges us, however, to adopt the standard set forth in State v. Boyer, 392 A.2d 41, 42 (Me.1978), which permits an appellate court to consider claims not raised at trial in order to correct 'manifest error' or 'serious injustice.'......
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