State v. Eagle
| Decision Date | 06 May 1980 |
| Docket Number | No. 16189,16189 |
| Citation | 611 P.2d 1211 |
| Parties | STATE of Utah, Plaintiff and Respondent, v. Robert Dennis EAGLE, Defendant and Appellant. |
| Court | Utah Supreme Court |
Ronald j. Yengich of O'Connell & Yengich, Salt Lake City, for defendant and appellant.
Robert B. Hansen, Atty. Gen., Earl F. Dorius, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.
Defendant appeals from a jury trial conviction of theft 1 of two suits of clothing from a downtown Salt Lake City department store. The record discloses no reversible error and we therefore affirm the conviction and judgment of the court below.
The believable evidence adduced at trial was that the defendant and one Myles were observed in the men's suit department of the store by a security guard. Myles was carrying a raincoat which he subsequently handed to defendant. While Myles positioned himself at the end of two suit racks which stood side by side, defendant went between the said racks on his knees, removed two suits from the racks and stuffed them inside the raincoat. He then handed the raincoat to Myles, and together they moved past the cash register in that area, on toward the sporting goods department and in so doing passed additional cash registers. In apparent realization that their conduct was under observation and that a confrontation was imminent, Myles dropped the suits. Thereafter, the security guard grabbed defendant to restrain him and defendant yelled for Myles to run. He did so but was apprehended outside by other store personnel. Defendant was arrested and subsequently convicted of the crime of theft.
On appeal, defendant asserts six points of error on the part of the trial court: (1) refusal to instruct the jury on his theory of termination of criminal conduct; (2) refusal to instruct the jury on reasonable alternative hypothesis; (3) inclusion of a jury instruction that intent may be inferred from acts, conduct, statements, or other circumstances; (4) refusal to grant a mistrial for improper prosecutorial comment; (5) insufficiency of the evidence; and (6) deprivation of fair trial by reason of cumulative error.
A defendant's entitlement to a jury instruction on his theory of the case is not absolute. It is necessarily conditioned upon the existence of a reasonable basis in the evidence to justify the giving of the proposed instruction. 2
In the instant case, defendant's request for an instruction on the affirmative defense of voluntary termination was not supported by any reasonable view of the evidence and the trial court so found. In fact, the substantial evidence was just to the contrary. Obviously, defendant's act of dropping the suits was not a "voluntary" act within the meaning of the statute, 3 coming as it did in an effort to avoid arrest after having been caught red-handed with the two suits secreted in his raincoat. Also the substantial evidence was that the crime of theft had already been completed, hence there could be no effective withdrawal or termination. Theft occurs when one obtains or exercises unauthorized control over the property of another with a purpose to deprive him thereof. 4 The fact that defendant was unable to escape undetected is of no consequence, for escape is not a necessary element of the crime of theft. Nor is he to be absolved of guilt by his abandonment of the loot any more than would a bank robber, burglar, or other law-breaker who throws away, or otherwise abandons, the fruits of his crime.
In regard to the propriety of the so-called "reasonable alternative hypothesis" jury instruction, any controversy over its use constitutes nothing more than a tempest in a teapot. The prosecution's burden of proof in any criminal case, whether the evidence be direct or circumstantial, or a combination of both, is that of beyond a reasonable doubt. 5 The use of the reasonable alternative hypothesis instruction is merely one way of expressing that necessary burden of proof and there is no apparent reason to mandate that one, and only one, particular instruction be used by trial judges in conveying to the jury the meaning of that elusive phrase, "proof beyond a reasonable doubt." It may well be that one of our astute jurists may make even a substantial improvement of the reasonable alternative hypothesis instruction, if in fact one has not already done so. In any event, the "reasonable doubt" instruction given in the instant case clearly and appropriately informed the jury of the legal standard to be applied.
The court's instruction on the element of criminal intent reads in pertinent part as follows:
A person's state of mind is not always susceptible of proof by direct and positive evidence, and, if not, may ordinarily be inferred from acts, conduct, statements or circumstances.
Defendant argues that this part of the instruction unconstitutionally allowed the jury to infer criminal intent on the part of defendant, eliminating the prosecution's burden to prove this essential element of the offense beyond a reasonable doubt. Defendant relies on Sandstrom v. Montana. 6 In that case the instruction given the jury was that the law presumes that a person intends the necessary and natural consequences of his acts. The Supreme Court held that a reasonable jury might interpret such a presumption to be either unrebuttable, that is, as a direction by the Court to find criminal intent, or, as requiring defendant to prove his state of mind to the contrary of the presumption, thus unconstitutionally shifting or eliminating the prosecution's burden of proof. Sandstrom does not apply in this case where the jury was instructed that it could infer intent from defendant's actions. A distinction is made in Sandstrom between inferences and presumptions of intent.
We are unable to see how a reasonable jury could interpret the instruction, here, as a direction by the Court to find criminal intent or as a presumption, requiring rebuttal on the part of the defendant, and we find no error. The instruction as given is an accurate statement of law in this state. 7
We now turn to defendant's contention that prejudicial error occurred in closing argument when the prosecutor attempted to rebut defendant's argument as to why he did not testify.
At trial, defendant exercised his prerogative not to testify as a witness. During closing argument, counsel for defendant saw fit to draw attention to the fact that defendant had not testified, explaining to the jury that it had been his (counsel's) decision that, since defendant could add nothing by way of evidence, there was no need for him to testify. This prompted the prosecution to respond by arguing to the jury that defendant may well have added to the evidence by revealing why he had passed by the various cash registers with his "purchase." Thereupon, the court prohibited the further pursuit of the matter. Defendant's subsequent motion for a mistrial based on improper prosecutorial comment was denied.
It is of note that the trial court viewed the prosecution's remarks to be harmless error, if error at all, as defense counsel had opened the subject, and the prosecution was clearly entitled to some rebuttal.
The trial court properly instructed the jury as follows:
The law expressly gives the defendant the privilege of remaining silent at all stages of any proceedings against him. The fact that he has not taken the witness stand must not be considered as any indication of defendant's guilt, nor should you indulge in any presumption or inference adverse to defendant by reason thereof. The burden remains with the State to prove, by evidence, guilt beyond a reasonable doubt.
The foregoing instruction was proper and adequate to advise the jury of defendant's right to remain silent and should not have been expanded upon with additional language. It was unwise and hazardous for defense counsel to make comments as he did on defendant's failure to testify, as it triggered the mechanism of rebuttal by the prosecution, and hence, may have invited error. 8 Further, it bears emphasis that comments on this sensitive instruction by either the defense or the prosecution which transcends the language thereof are to be avoided. Nevertheless, in this case, the court was wholly within its discretion in ruling as it did.
Defendant's remaining points on appeal, those of insufficiency of the evidence and cumulative error, are clearly without merit in light of the foregoing analysis of the case.
Affirmed.
I concur with the majority opinion that the District Court did not err in giving its instruction on the element of criminal intent, as well as statements in that opinion concerning the prosecutor's comment on defendant's failure to take the stand as a witness. But I believe the District Court erred prejudicially (1) in failing to instruct the jury on defen...
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