State v. Brookshire, 1895
| Decision Date | 10 February 1971 |
| Docket Number | No. 1895,1895 |
| Citation | 107 Ariz. 21,480 P.2d 985 |
| Parties | STATE of Arizona, Appellee, v. Earl Leon BROOKSHIRE, Appellant. |
| Court | Arizona Supreme Court |
Gary K. Nelson, Atty. Gen., Carl Waag, Asst. Atty. Gen., Phoenix, for appellee.
Lawrence C. Cantor, Phoenix, for appellant.
The defendant was convicted below of first degree burglary (A.R.S. §§ 13--301, 13--302) with a prior conviction, and sentenced to a term of from ten to eleven years in the Arizona State Prison. He appeals, claiming the evidence is insufficient to support a conviction of burglary, as it is based on the testimony of an accomplice.
On appeal, we must take the facts in the light most favorable to sustaining the verdict. State v. Bearden, 99 Ariz. 1, 405 P.2d 885 (1965). On Monday morning, September 19, 1966 at 7:00 A.M., Richard Best returned to his work as warehouse foreman at Westward Storage and Transfer Company in Phoenix, and discovered that eighteen console color televisions were missing. He had locked up the warehouse at Saturday noon (September 17) by locking the steel rolling doors of the warehouse proper, and by locking the gate to the yard with a chain and padlock. The rolling doors are locked with a steel pin.
The burglary in question occurred in the evening of September 17th. The defendant was a former employee of Westward, and according to the testimony of the accomplice, was the mastermind of the burglary. The accomplice, Ralph Cave, and another accomplice (who did not testify) made the actual entry on the premises. The defendant was prosecuted and convicted as a principal, pursuant to A.R.S. §§ 13--139, 13--140. The charges against Cave were dropped when he entered a plea of guilty to an unrelated armed robbery charge. Both accomplices had formerly worked for Westward.
Cave testified that one week prior to the burglary he, the other accomplice and the defendant had a conversation in the defendant's home in northwest Phoenix concerning the possible theft of some color televisions in the Westward warehouse. One week prior to the burglary, the defendant had participated in an inventory of the color televisions with foreman Best.
The defendant made the initial proposal. They planned to use the defendant's bolt cutters to cut the chain and to pry open the rolling doors enough to slip under and pull out the pin. They also planned to rent a truck.
In the late afternoon of September 17th, the defendant and Cave met and rented a van truck. The deposit money was the defendant's. They had driven to the truck rental business in the defendant's car which Cave testified was a red DeSoto. The two men then parked the truck at the Roadrunner Cafe, and picked up the third man involved in the crime. They killed time at the cafe until about nine o'clock discussing the disposal of the televisions. The three men went to the warehouse but came back to the cafe because a truck was still missing from the yard. At about 9:30 or 10:00, after killing some more time the defendant took his red-handled bolt cutters from his car and gave them to Cave and the other accomplice. The two accomplices returned to the warehouse in the rented truck. They used the defendant's bolt cutters to cut the chain. They pried up the rolling doors, and Cave slipped under and removed the pin. They knew where the televisions were, and went directly to them. It took the two accomplices about one hour and fifteen minutes to load the eighteen color televisions into the truck.
Cave saw the defendant's car drive around the warehouse after he had cut the chain and again while they were loading the televisions. Cave stated that the defendant was their lookout. After Cave and the third man finished loading the truck, they followed the defendant to a side street in Northwest Phoenix where they parked the truck. The defendant drove Cave home at about 10:30 or 11:00.
On Sunday morning Cave and the defendant went to the Arizona Milk Supply in Glendale, where they loaded the sets onto a pickup truck, and unwrapped them. At Arizona Milk Supply, the defendant sold a television to Jewel Dillahanty, who paid $200 for the television less a $50 allowance for her old television. The television was delivered to her that evening. She paid the defendant by a check (which was introduced into evidence) on Friday. The serial number of her television matched that of one of the televisions missing from Westward. The defendant told her he was selling the televisions for a friend that was going into bankruptcy.
Officer Bill Copeland, of the Phoenix Police investigated the burglary. One month later, Officer Copeland, with a search warrant, based upon information from the second accomplice entered the defendant's home and discovered red-handled bolt cutters hanging on a rack in the defendant's garage. The bolt cutters were introduced in evidence and identified by Cave as being identical to those loaned him by the defendant. A test run on the bolt cutters determined that the chain had been cut by the same type of bolt cutters.
Defendant's daughter testified that her father had been cooperative with the police officers. She testified that her father and the officers had a dispute because the officers would not give him a receipt. (The officer testified that a receipt was standard procedure.) This was the extent of the evidence presented by the defendant, who did not take the stand in his own behalf.
The defendant asserts that the above evidence is not sufficient to sustain a conviction of burglary, though it might be sufficient to convict him of receiving stolen goods.
Section 13--136, A.R.S., reads as follows:
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...While possession of recently stolen property is not sufficient in itself to warrant a conviction for burglary, State v. Brookshire, 107 Ariz. 21, 480 P.2d 985 (1971), evidence of the possession of the stolen property, coupled with Fierro's inconsistent and unlikely explanations, would have ......
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