State v. Dietz, 11950

Citation264 N.W.2d 509
Decision Date06 April 1978
Docket NumberNo. 11950,11950
PartiesSTATE of South Dakota, Plaintiff and Respondent, v. Robert DIETZ, Defendant and Appellant.
CourtSupreme Court of South Dakota

John P. Guhin, Asst. Atty. Gen., Pierre, for plaintiff and respondent; William J. Janklow, Atty. Gen., Pierre, on the brief.

Keith R. Strange of Strange, Breit & Strange, Sioux Falls, for defendant and appellant.

ZASTROW, Justice.

The defendant was charged with third degree burglary of the Hurley Municipal Bar (Bar) on March 23, 1975. At his trial in Turner County, the jury returned a guilty verdict and the defendant was sentenced to six years in the state penitentiary. The defendant appeals from the judgment and conviction and questions the sufficiency of the evidence to support the verdict. *

The evidence introduced by the state was clearly circumstantial. In determining the sufficiency of evidence on appeal, the question presented is whether or not there is evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilty beyond a reasonable doubt. State v. Shank, 1975, S.D., 226 N.W.2d 384, 387. In making that determination, "this court will accept 'that evidence, and the most favorable inferences that can be fairly drawn therefrom, which will support the verdict.' " State v. Best, 1975, S.D., 232 N.W.2d 447, 457. Although the rule at the trial level requires that the jury find the circumstantial evidence be conclusively inconsistent with any reasonable hypothesis of innocence, State v. Best, supra, the rule at the appellate level is that a guilty verdict will not be set aside if the evidence, including the circumstantial evidence and reasonable inferences, sustains a rational theory of guilt. State v. Luna, 1978, S.D., 264 N.W.2d 485 (handed down March 29, 1978). With these appellate rules in mind, we will review the state's evidence.

On the night of March 23, 1975, a snowstorm preceded by rain struck the small rural community of Hurley. The traffic in the town had virtually stopped by 11 p. m., as the streets were covered by snow and ice. About 11:30 p. m., the Hurley mayor and police chief were alerted by a silent alarm, indicating that the back door of the Bar had been opened. The mayor arrived at the back of the Bar some seven or eight minutes after the alarm had occurred. He observed two sets of footprints leading to the back door and that the door had been forcibly pried open. On entering the Bar, he saw a duffel bag containing a sledge hammer, some small tools, six cartons of cigarettes and $189 in currency and change. The bag and the tools did not belong to the Bar; the cigarettes and money did.

Entering the front portion of the Bar, the mayor observed that the glass front door had been broken, and he observed two sets of footprints in the fresh snow leading from the front door across the main street and into an alley. The police chief arrived at the Bar, did some preliminary investigation and then returned to his home to secure the police car which contained a two-way radio. As he returned to the Bar, the police chief observed a fresh set of tire tracks on the main street about one and one-half blocks east of the Bar. These tracks had not been on the street when the police chief had initially driven to the Bar only minutes before.

Upon arriving at the Bar, the police chief followed the two sets of footprints for three blocks first to the south, then to the west, then to the south again near the American Legion Club where they were obliterated by the drifting snow. The police chief then returned to the Bar, secured his vehicle and followed the fresh tire tracks to the south and then to the west, reaching their obvious point of origin about one block south of the American Legion Club. The police chief returned to where he had first observed the fresh tracks and followed them east toward the city limits until the tracks left the street and went into the ditch. In the ditch, he found the defendant's 1967 Cadillac.

About ten minutes before that time, Debbie Peterson had just arrived in Hurley, having returned from a friend's house, where she observed a Cadillac in the ditch and saw someone running away from it in a northerly direction. Later, upon learning of the burglary, she advised the police chief of her observations. The following morning, the mayor and deputy county sheriff discovered two sets of footprints on a gravel...

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28 cases
  • State v. Rough Surface
    • United States
    • Supreme Court of South Dakota
    • May 3, 1989
    ...favorable inferences that can be drawn therefrom, which will support the verdict.' " Luna, 264 N.W.2d at 487-88. In State v. Dietz, 264 N.W.2d 509, 510-11 (S.D.1978), we summarized our holding in Luna, as Although the rule at the trial level requires that the jury find the circumstantial ev......
  • State v. Dornbusch
    • United States
    • Supreme Court of South Dakota
    • January 16, 1986
    ...failure to so rule. State v. Giuliano, 270 N.W.2d 33 (S.D.1978); see also State v. Watkins, 272 N.W.2d 839 (S.D.1978); State v. Dietz, 264 N.W.2d 509 (S.D.1978); State v. Miller, 248 N.W.2d 874 (S.D.1978). Appellant asserts, nevertheless, that error is preserved because the trial court's ad......
  • State v. Cody
    • United States
    • Supreme Court of South Dakota
    • August 25, 1982
    ...v. Vogel, 315 N.W.2d 321 (S.D.1982); State v. Robb, 303 N.W.2d 368 (S.D.1981); State v. Moeller, 298 N.W.2d 93 (S.D.1980); State v. Dietz, 264 N.W.2d 509 (S.D.1978); State v. Shank, 88 S.D. 645, 226 N.W.2d 384 (1975). In making such a determination, this Court will accept that evidence, and......
  • State v. Kaseman
    • United States
    • Supreme Court of South Dakota
    • December 22, 1978
    ...790; State v. Nelson, 1964, 80 S.D. 574, 129 N.W.2d 54. We have expressed the appellate rules of review in this regard in State v. Dietz, S.D.1978, 264 N.W.2d 509, as follows: "In determining the sufficiency of evidence on appeal, the question presented is whether or not there is evidence i......
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