State v. Dezaine, 188-81
| Decision Date | 08 June 1982 |
| Docket Number | No. 188-81,188-81 |
| Citation | 449 A.2d 913,141 Vt. 335 |
| Parties | STATE of Vermont v. Frederick L. DEZAINE III. |
| Court | Vermont Supreme Court |
Michael J. Sheehan, Windsor County State's Atty., White River Junction, for plaintiff-appellee.
William E. Dakin, Jr., Chester, for defendant-appellant.
Before BARNEY, C. J., and BILLINGS, HILL, UNDERWOOD and PECK, JJ.
The defendant appeals his convictions of possession and transportation of a deer out of season, as well as the trial court's denial of his motion for new trial. Both questions turn on the identification of the defendant. He is alleged to have been the companion of a driver who was stopped and apprehended for committing the same offenses.
On November 4, 1980, after dark, a Vermont fish and game warden witnessed a car with two individuals in it approach the fresh carcass of a deer. The car stopped, the driver and a companion got out and loaded the carcass into the car, and then drove off. The warden followed in his cruiser and stopped the car a short distance down the road. He then approached the driver's side of the car and requested identification from the driver, during the course of which he also had an opportunity to identify the passenger as the defendant, a man he had known for twelve years. At the warden's request the driver accompanied him back to the cruiser. As the warden and the driver sat in the cruiser the passenger got out of the car, and when the warden called to him by name he ran off into the woods.
Later the same day the defendant telephoned the warden and stated that he was being unjustly accused of having been a passenger in a car in which a deer carcass was found. He claimed that he had been at home at the time of the incident, and this claim became his alibi defense at trial. Both his wife and his mother testified in support of his claim, and the driver of the car testified that the defendant had not been his companion, that someone named "Moose," whom he had not seen before or since that time, was the passenger in question.
At the close of the evidence the defendant moved for a judgment of acquittal pursuant to V.R.Cr.P. 29, on the ground that there was insufficient evidence on which a conviction could be sustained. The motion was denied. A jury found the defendant guilty of violating 10 V.S.A. §§ 4781 and 4784. Subsequently he was fined $300 for each offense, and ordered to serve 0-30 days on weekends. The defendant appealed.
On April 16, 1981, the defendant's motion for new trial came before the court. The defendant represented that the elusive "Moose" had been located and identified, and offered to produce him for the court to testify that he, and not the defendant, had been in the car carrying the deer carcass. The defendant claimed that this newly discovered evidence would probably lead to a different result, but the trial court disagreed. The defendant's motion was denied and appeal on this issue as well followed.
With regard to the trial court's denial of the defendant's motion for judgment of acquittal, we must review the facts in the light most favorable to the State, excluding any modifying evidence which may have been presented, to determine whether the evidence fairly and reasonably tends to show the defendant guilty beyond a reasonable doubt. State v. Sorrell, 139 Vt. 648, 649, 432 A.2d 1188, 1189 (1981); State v. Eaton, 134 Vt. 205, 206, 356 A.2d 504, 505 (1976). There can be no doubt in this case that it did.
The State's chief witness, the game warden who apprehended the pair, testified that he saw the defendant, a man he had known for some years,...
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State v. Bailey
...(1983) (counsel failed to accept court's offer for a continuance when confronted with newly discovered evidence); State v. Dezaine, 141 Vt. 335, 338, 449 A.2d 913, 914 (1982) (a continuance should have been sought to locate a witness and to obtain his testimony). This responsibility exists ......
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State v. Ramsay, 83-359
...is to determine whether the trial court abused its discretion in denying defendant's motion for a new trial. State v. Dezaine, 141 Vt. 335, 338, 449 A.2d 913, 914 (1982). Absent a showing that discretion was abused or its exercise unreasonably withheld, this Court will not reverse. State v.......
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