State v. Davis, 57429

• Decision Date: 21 May 1975
• Docket Number: No. 57429,57429
• Citation: 229 N.W.2d 249
• Parties: STATE of Iowa, Appellee, v. Andrew DAVIS, Appellant.
• Court: Iowa Supreme Court

Page 249

229 N.W.2d 249

STATE of Iowa, Appellee, v. Andrew DAVIS, Appellant.

No. 57429.

Supreme Court of Iowa.

May 21, 1975.

John R. Sandre of Scalise, Scism, Centry, Brick & Brick, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., David E. Linquist, Asst. Atty. Gen., and Ray Fenton, County Atty., for appellee.

Submitted to MOORE, C.J., and LeGRAND, REES, REYNOLDSON and HARRIS, JJ.

HARRIS, Justice.

Defendant appeals his conviction of breaking and entering in violation of § 708.8, The Code. The two assignments of error challenge the sufficiency of evidence and inquiry by the State concerning defendant's prior felony convictions. We affirm the trial court.

The charge grew out of a December 2, 1973 break-in of a grocery store in Des Moines. Police were summoned and found the front door glass had been broken. A security guard at a business located close to the grocery store was on the scene when the police arrived. The guard had heard about the break-in on his police 'scanner' radio. The police learned the guard saw a 'colored' man about 5 feet 10 'leaving the scene of the grocery' and proceeding north on 7th Street in a green Buick. Inside the store the polic found several six packs of beer lying outside the cooler, as well as packs and cartons of cigarettes scattered behind the counter.

Officer Jerry Greenfield, another Des Moines policeman, testified that as he proceeded to the store he saw a black over green Buick backing up on 7th Street and into a driveway. He waited and followed the car when it began to move. When the car failed to come to a complete stop at 7th and Forrest he turned on his red lights and honked his horn but the car continued for two or three blocks before stopping. Another police car joined Greenfield.

Three men emerged from the car. One suddenly ran from the scene and was pursued and captured by Officer Greenfield. While he was giving chase another of the men ran and escaped. The third man was defendant who remained at the scene in the custody of the other police officer.

Inside the car the police found popcorn (apparently the prepopped kind sold as snack food) along with beer and some cigarettes and a hammer. A witness testified the hammer had broken glass fragments on it. Everything except the hammer was an item sold at the grocery store. The beer, cigarettes, and popcorn, found in the car, were all marked as State's exhibits. Because of a break in the chain of possession of those exhibits the trial court did not permit them to be received in evidence. That ruling is unchallenged in this appeal. However witnesses did testify in detail concerning the items and the fact they were identical to those which had been taken from the store during the break-in. The beer found in the car was of the same brand and had the same numbers, 1, 18, 4, and 3 as were stamped on the bottom of cans of the same brand left in the store.

Defendant elected to testify in his own behalf at trial. He stated he was driving home on the evening of December 2, 1973 and near the store two men flagged him down for a ride. Defendant testified he was unable to stop immediately because of traffic so he drove around the block and picked them up. The men wanted to go north and, since the car was then facing south on 7th, defendant said he just backed around the corner and headed north. Shortly thereafter Davis said he noticed a patrol car was attempting to stop him. He said he continued until he could find a well-lit place. He denied he knew the two men or how the beer, cigarettes, and popcorn got in the car. Defendant's cross-examination concerning prior felonies can be more appropriately described in connection with discussion of that assignment of error.

I. In State v. Dahlstrom, 224 N.W.2d 443, 447--448 (Iowa 1974) we said:

'In a criminal action the cause should be submitted to the jury and the court should not direct a verdict of acquittal if there is any substantial evidence reasonably tending to support the charge. State v. Youngbear, 203 N.W.2d 274, 279 (Iowa 1972); State v. Clay, 213 N.W.2d 473, 481 (Iowa 1973); State v. Gray, 216 N.W.2d 306, 308 (Iowa 1974).

'To sustain the overruling of a motion for directed verdict, 'any evidence, circumstantial or direct, must be sufficient to raise a fair inference of guilt.' There must be more than 'a suspicion, speculation, or conjecture. * * *' State v. Williams, 179 N.W.2d 756, 758 (Iowa 1970).

'In making a determination as to the propriety of the court's ruling on a motion for directed verdict in a criminal case this court views the evidence in the light most favorable to the state regardless of whether it is contradicted and every legitimate inference that may be fairly and reasonably deducted therefrom must be carried to the aid of the evidence. Kirschbaum v. United States, 407 F.2d 562, 563 (8 Cir. 1969).

'* * *

'* * * And a finding of guilt is binding on this court unless without substantial support in the record or is clearly against the weight thereof. State v. Still, 208 N.W.2d 887, 888 (Iowa 1973). * * *.'

In State v. Staker, 220 N.W.2d 613, 617--618 (Iowa 1974) we said:

'On defendant's appeal from criminal conviction based on a jury verdict challenging the sufficiency of evidence to sustain the verdict this court views the evidence in the light most favorable to the state, including all inferences and presumptions which reasonably flow from the evidence in the record. State v. Ampey, 210 N.W.2d 433, 434 (Iowa 1973). The trial court should submit the cause to the jury and not direct a verdict if there is any substantial evidence reasonably tending to support the charge. State v. Pardock, 215 N.W.2d 344, 346 (Iowa 1974).'

And in State v. Ampey, 210 N.W.2d 433, 434 we said:

'It is true much of the evidence is circumstantial, but circumstantial evidence is sufficient to sustain a conviction as long as it is entirely consistent with defendant's guilt, wholly inconsistent with any rational hypothesis of innocence, and excludes any reasonable doubt that defendant is guilty of the offense charged. State v. Schurman, 205 N.W.2d 732, 733, 734 (Iowa 1973); State v. Streit, 205 N.W.2d 742, 743 (Iowa 1973); State v. Gilroy, 199 N.W.2d 63, 67 (Iowa 1972).'

Defendant expressly concedes there is sufficient evidence to show the grocery store was broken into on December 2, 1973. He limits his challenge of sufficiency to the State's showing identifying him as involved in that break-in. Under the foregoing principles we believe there was a jury question on defendant's identity.

The fact the exhibits themselves were not admitted into evidence does not alter the fact the items themselves were found in the...