State v. Closs, s. 14622

• Decision Date: 10 April 1985
• Docket Number: Nos. 14622,14623,s. 14622
• Citation: 366 N.W.2d 138
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Randy Lee CLOSS, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 138

366 N.W.2d 138

STATE of South Dakota, Plaintiff and Appellee, v. Randy Lee CLOSS, Defendant and Appellant.

Nos. 14622, 14623.

Supreme Court of South Dakota.

April 10, 1985.

Mark Smith, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on the brief.

Patricia C. Riepel, Minnehaha County Public Defender, Sioux Falls, for defendant and appellant.

WUEST, Acting Justice.

Randy Lee Closs (appellant) was found guilty of second-degree burglary, third-degree burglary, grand theft, and petty theft. Appellant appeals and we affirm.

Rick Johnson (Johnson) parked his unlocked automobile in the rear of his duplex on the evening of January 27, 1983. The vehicle was equipped with an eight-track tape player mounted by a bracket under the dashboard which supported a CB radio. The bracket was custom made by Johnson. The next morning, Johnson went to his vehicle and noticed that the bracket, tape player, and radio were missing. He also noticed footprints in the snow on the passenger side of the automobile. These footprints had a "V" pattern and were similar to tracks made by the boots later removed from appellant. Johnson reported the theft to the police. Police investigators followed the footprints in the snow from Johnson's automobile to the home of appellant and his father. That afternoon, pursuant to a search warrant, police found the stolen bracket hidden behind other objects under a couch in appellant's residence. Appellant was arrested and while being booked he removed two screws and two bolts from his pocket similar to the ones used to mount the radio and tape player on the bracket. The radio and tape player were never found.

During an inventory of appellant's billfold a small frayed envelope was found which contained five diamonds and one amethyst stone. These were items which had been stolen from Janet Gullickson (Gullickson) sometime on December 25, 1982. Investigation of that burglary also included following footprints in the snow. When backtracking these footprints, the police found that they also originated at appellant's residence although they were not made by the boots removed from appellant in the Johnson incident.

As a result of these investigations, appellant was charged with burglary in the third degree and grand theft regarding the Johnson incident; and in a different complaint, appellant was charged with burglary in the second degree and grand theft regarding the Gullickson incident. After preliminary hearings, appellant was arraigned on separate informations to which he entered pleas of not guilty and not guilty by reason of mental illness. He moved for separate trials but upon motion of the State the court ordered the informations to be tried together. Appellant claims that the joinder of the charges found in the two informations prejudiced him because the evidence submitted at trial in one case would not have been admissible in the trial of the other case. According to the appellant, this would specifically prejudice him if he was to take the stand in regard to one charge but not for the other. Appellant, however, did not take the stand as to either charge.

SDCL 23A-11-1 provides for joinder of informations for trial, and reads as follows:

A court may order two or more indictments or informations, or both, to be tried together if the offenses, and the defendants, if there is more than one, could have been joined in a single indictment or information. The procedure shall be the same as if the prosecution were under a single indictment or information.

SDCL 23A-6-23 sets out, in the following manner, the standard for whether more than one information or indictment may be joined:

Two or more offenses may be charged in the same indictment or information in separate counts for each offense, if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

Under SDCL 23A-11-2, however:

If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires....

The aforementioned sections of our codified laws were taken from Federal Rules of Criminal Procedure 8(a), 13, and 14.

Under the predecessor of SDCL 23A-11-1 (SDCL 23-32-6), this court held that joinder of two unrelated burglaries committed two months apart was permissible. State v. Van Beek, 88 S.D. 154, 216 N.W.2d 561 (1974). Under that statute, joinder of the same class of crimes was permitted; however, SDCL 23-32-8, now superseded by SDCL 23A-11-2, provided that in the interests of justice and good cause shown in the discretion of the court, the court could order that different offenses be tried separately. In Van Beek, the court further said: "The denial of separate trials is not cause for reversal unless the court in so ruling abused its discretion. Wise judicial discretion should be exercised by the courts in this regard to protect the accused from prejudice." 88 S.D. at 157, 216 N.W.2d at 563. Under our present statute, SDCL 23A-11-2, (taken from Federal Rule 14) we held in State v. Layton, 337 N.W.2d 809, 815 (S.D.1983):

Decisions to sever a trial are within the sound discretion of the trial court and its decision will not be disturbed on appeal, absent a showing of abuse of discretion. State v. Reiman, 284 N.W.2d 860 (S.D.1979); State v. Bonrud, 246 N.W.2d 790 (S.D.1976).

In Layton, we further said the court should balance any prejudice against a policy which favors judicial efficiency.

The offenses charged here, namely, burglary and theft arising from the Johnson incident, and burglary and theft arising from the Gullickson incident, are of the same or similar character, and are closely related in time, place and manner of execution.

Appellant never identified which of the charges he desired to testify to, nor does he now. In addition, the court instructed the jury to consider each offense and the evidence applicable thereto separately. We hold that under the facts of this case the trial court did not abuse its discretion in joining the informations for trial. See Dobbins v. State, 483 P.2d 255 (Wyo.1971).

Appellant claims that the only evidence presented in the Gullickson incident was appellant's possession of the gems discovered one month after the burglary while he was being booked on other charges. Appellant maintains that the court should have given an instruction regarding the possession of recently stolen property and the legal inferences to be drawn therefrom. Appellant proposed jury instructions # 13 and # 14, which were denied by the trial court. Proposed jury instruction # 13 reads as follows:

In determining whether property possessed by a Defendant is "recently" stolen, the test under South Dakota law is whether the interval between the date of the alleged theft and the date of possession is so short as to render it morally or reasonably certain that there could have been no intermediate change of possession.

It is the exclusive province of the jury to determine whether the facts and circumstances shown by the evidence in the case warrant any inference which the law permits the jury to draw from possession of recently-stolen property. If any possession the accused may have had of recently stolen property is consistent with innocence, the jury should acquit the accused.

Proposed jury instruction # 14 reads as follows:

The mere fact that a person was in conscious possession of recently stolen property is not enough to justify his conviction of theft. It is, however, a circumstance to be considered with other evidence. To warrant a finding of guilty, there must be proof of other circumstances tending of themselves to establish guilt.

Appellant not only claims it was error for the trial court to deny both instructions, but that the failure to give any instruction on possession of recently stolen property constituted reversible error. In State v. Larkin, 87 S.D. 61, 67, 202 N.W.2d 862, 865-6 (1972), we said:

In the absence of such direct evidence, the state relied entirely upon the inference or presumption which is said to arise when the accused is found in possession of 'recently' stolen property. It has long been the rule in this state that possession of recently stolen property is in itself, a circumstance from which guilt may be presumed. State v. Guffey, 39 S.D. 84, 163 N.W. 679 (1917); State v. Larson, 41 S.D. 553, 172 N.W. 114 (1919); State v. Johnson, 49 S.D. 572, 207 N.W. 539 (1926). The fact of such possession alone, if unexplained by the facts and circumstances brought out at trial, is a sufficient circumstance upon which to rest a verdict of guilty, if it convinces the jury of the defendant's guilt beyond a reasonable doubt. State v. Butler, 71 S.D. 455, 25 N.W.2d 648 (1946); State v. Rober, S.D. , 197 N.W.2d 707 (1972). Therefore, having produced sufficient evidence of possession by the appellants of the 'recently' stolen goods, the state established a prima facie case of larceny against them. (emphasis added)

Appellant claims that his proposed instructions # 13 and # 14 are patterned after our decision in State v. Ellestad, 88 S.D. 595, 225 N.W.2d 879 (1975). In Ellestad, however, the State's case was based solely on defendant's possession of a cow some fourteen months after the date of theft. There was no probative evidence, either direct or circumstantial, linking the defendant with the theft. There, the State proposed an instruction concerning the effect of the unexplained possession of stolen property, but omitted the requirement that the unexplained possession of the stolen property be recent. The court...