State v. Bushey

• Decision Date: 03 April 1979
• Docket Number: No. 22-78,22-78
• Citation: 400 A.2d 993,137 Vt. 155
• Parties: STATE of Vermont v. Miles E. BUSHEY.
• Court: Vermont Supreme Court

Page 993

400 A.2d 993

137 Vt. 155

STATE of Vermont v. Miles E. BUSHEY.

No. 22-78.

Supreme Court of Vermont.

April 3, 1979.

Mark J. Keller, Chittenden County State's Atty., and Sandra L. Baird, Deputy State's Atty., Burlington, for plaintiff.

James L. Morse, Defender General, Charles S. Martin and William A. Nelson, Appellate Defenders, David W. Curtis, Acting Appellate Defender, and David Rath, Law Clerk (On the Brief), Montpelier, for defendant.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

BARNEY, Chief Justice.

The defendant was convicted by a jury of grand larceny of certain tires and wheels. The taking was claimed to have been carried out in conjunction with his girl friend. At the time of trial there was an arrest warrant outstanding for her, but she could not be located. He brings his conviction here claiming that he was entitled to a judgment of acquittal based on the failure of the circumstantial evidence against him to exclude every reasonable hypothesis except guilt. He also claims that the court's charge to the jury erroneously enabled them to convict without proof of his intent to steal the tires.

In this case the issue is not the frequent contention that the usual charge as to circumstantial evidence ought to have been given but was not. In this case the issue was charged in language that was unexcepted to. The claim is that the evidence in the case would not satisfy the standard for conviction by circumstantial evidence, and that therefore the defendant should be acquitted as a matter of law.

The standard of proof for circumstantial evidence is variously stated. One expression is that such evidence must be so cogent as to exclude every reasonable theory consistent with the defendant's innocence. State v. Clark, 118 Vt. 131, 134, 101 A.2d 868 (1954). Another way of putting the test is to say that the evidence must exclude every reasonable hypothesis except that the defendant is guilty. State v. Dragon, 135 Vt. 35, 37, 370 A.2d 218 (1977). The basic concern is to prevent conviction based merely upon speculation, suspicion or conjecture. State v. Hotte, 129 Vt. 260, 262, 276 A.2d 492 (1971). This protective instruction is conceded to be unnecessary unless the evidence of guilt is entirely circumstantial. State v. Bruce, 126 Vt. 367, 370, 231 A.2d 107 (1967).

The evidence connecting the defendant with the crime comes entirely from the investigating officers. Part of that evidence reports what those officers did and saw, and part reports statements made to them by the defendant.

At about forty-five minutes past midnight on January 20, 1977, a police officer drove into the Nordic Ford car lot in South Burlington. Among the new cars he observed an old dark station wagon into which a woman was transferring a tire from a new Ford LTD. The LTD was missing its two front tires and the rear end of the car was jacked up. Subsequent investigation revealed that the lug nuts for the wheels on the rear had been loosened.

The motor was running on the dark station wagon, and the woman attempted to drive away when the officer approached. She slammed his hand in the car door, but he managed to extract the keys. As he was taking her back to his cruiser, he heard noises indicating the presence of another person so he radioed for assistance. When a second police car arrived, he took the woman involved to the South Burlington police station.

The second officer apprehended the defendant at the scene after he attempted to flee on foot. He was crouched behind a line of new cars on the lot, but footprints in the snow matching his shoes led away from the Ford LTD with the missing tires in the direction of his later apprehension. His clothes were wet, especially the knees of his pants, and his hands were dirty. He had a wrench in his pocket. Both officers felt that the defendant was intoxicated.

At the police station the defendant made a number of statements to the police which were put in evidence and proper for the jury's consideration. He identified the woman involved as his girl friend. He made several statements about the tires, saying, in effect, that his girl friend had "purchased" them from some people he knew dealt in stolen tires. He priced them at $40.00 or $60.00 at various times. He said it was an "informal" deal, and that he went to Nordic Ford to help his girl friend pick up the tires. He claimed not to know the tires in question were stolen. He also said that he proceeded to Nordic Ford separately, having a taxi let him out across the street. He explained to the police that he attempted to get away from them because he was on probation and was afraid to be picked up. This last information was not revealed to the jury. The defendant elected not to testify.

From this record it is clear that there is direct evidence of the defendant's presence at the scene of the crime at the time it occurred. His statements admitting his presence there with a purpose of assisting his girl friend in taking the tires are also to be treated as direct evidence. State v. Dragon, supra, 135 Vt. at 38, 370 A.2d 218; State v. Gignac, 119 Vt. 471, 476, 129 A.2d 499 (1957). Other statements by him may have been taken by the jury as evidencing knowing participation in the larceny. It was not required, therefore, that the evidence exclude every reasonable hypothesis except that the defendant is guilty. That test applies...