State v. Eugene

Decision Date31 October 1983
Docket NumberNo. 926,926
Citation340 N.W.2d 18
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Donald J. EUGENE, Defendant and Appellant. Crim.
CourtNorth Dakota Supreme Court

Gail Hagerty, States Atty., Bismarck, for plaintiff and appellee; argued by Gail Hagerty, States Atty., Bismarck.

Bickle, Coles & Snyder, Bismarck, for defendant and appellant; argued by James J. Coles, Bismarck.

ERICKSTAD, Chief Justice.

This is an appeal by the defendant, Donald J. Eugene, from a judgment and sentence of conviction entered upon a jury verdict finding him guilty of the offense of burglary. We affirm.

On July 11, 1982, at approximately 11:33 p.m., an alarm system installed in a Bismarck restaurant known as Caspar's East Forty [hereinafter referred to as Caspar's or restaurant] sounded at the Bismarck police station. Officer Jack Schulz, in response to a dispatch signal, arrived at the restaurant, which was closed for business, at approximately 11:37 p.m. He parked his patrol vehicle and began inspecting the doors and windows of the restaurant.

Officer Schulz testified that he observed, while in the process of his inspection, an individual, later identified as Donald J. Eugene, leaning into the open right rear window of a 1965 Chevrolet Belair automobile. The automobile was parked in the parking lot of a neighboring motel, located directly to the rear of the restaurant, known as the Econ-O-Inn. Officer Schulz testified further that he observed Eugene pull himself out of the window and turn. Officer Schulz then yelled and Eugene "took off at between a run and a jog" away from the automobile toward the Econ-O-Inn. Subsequently, in response to Officer Schulz's order to "stop and come over", Eugene stopped, walked toward Officer Schulz, and properly identified himself to the officer. Officer Schulz testified that he did not observe anyone else, other than Eugene, in the area of the restaurant or the parking lot of the Econ-O-Inn upon and after his arrival at the scene.

Eugene's trial testimony was, in one important respect, contrary to that of Officer Schulz. Eugene did not dispute the fact that he was present in the parking lot of the Econ-O-Inn on the evening of July 11, 1982. He testified, however, that he did not lean into the window of the automobile as Officer Schulz allegedly observed. At trial Eugene recounted the events of the evening and his reason for being near the restaurant. He testified that, prior to his encounter with Officer Schulz, a friend dropped him off at the Ramada Inn, another motel located near the restaurant, so that he could locate another friend, Robert Arthlind, whom Eugene believed was staying there. Upon inquiry at the Ramada Inn, however, Eugene discovered that no registration existed for Arthlind. Eugene testified that he then telephoned his girlfriend, Karen Fredericks, from the Ramada Inn to see if she knew where Arthlind was staying. Fredericks testified that Eugene called her and told her that he was going to look for Arthlind at the Econ-O-Inn.

Eugene testified that, in his effort to locate Arthlind, he left the Ramada Inn, and was jogging through the parking lot of the Econ-O-Inn on his way to the Econ-O-Inn itself, when he heard the shouts of Officer Schulz. Eugene explained to the officer, after being informed of the burglary, that he was not even close to Caspar's, that he had come to see a friend, and then pointed out a pick-up truck in the parking lot which he thought belonged to Arthlind. Eugene alleged at trial that Officer Schulz arrested him because he was "in the area."

The remaining facts are not in dispute. Officer Schulz noticed, while waiting with Eugene for the arrival of other officers, that a gate providing entry to an outside enclosure annexed to the rear of Caspar's was partially open. The enclosed area, surrounded by a fence and partial roof, provides access to a walk-in freezer wherein meat products used by Caspar's are stored. Upon entering the enclosed area, Officer Schulz discovered boxes of meat outside the freezer. A steak knife, used to open a latch on the freezer door handle, and padlock, used to lock the freezer door, were found on a grease barrel just outside the freezer door. The freezer door was open.

Officer Schulz then inspected the automobile into which Eugene was allegedly leaning and discovered, on the right rear seat and floor, packages of prime rib and ham determined later to be missing from the restaurant's freezer. Also found inside the automobile, underneath the packages of meat, were a hammer and tire iron. The keys to the automobile were also found inside the automobile. Officer Schulz testified that the automobile in which the meat products were discovered is registered to another individual, Gary Potter. An unsuccessful attempt was made by the State to personally serve Potter with a subpoena to appear at Eugene's trial. Eugene testified that he knew Potter "casually."

Several additional officers of the Bismarck Police Department arrived at Caspar's and initiated an investigation of the scene of the burglary. The interior, exterior, and roof of the restaurant were searched. Photographs of the automobile, the meat products, and the enclosed area were taken by Officer Leonard Rohrer and admitted as evidence at Eugene's trial. Potter's automobile was impounded and the meat products found therein were left at the restaurant. Officer Schulz testified that he took custody of the padlock, knife, hammer, and the tire iron found at the scene and placed them in the evidence locker at the Bismarck Police Department. These items were not introduced as evidence by the State at trial. Upon cross-examination Officer Schulz testified that the items were lost. Although testimony was elicited from Officers Schulz and Rohrer concerning police procedures in handling items of potential evidence, no explanation was given for the loss.

Conflicting testimony was elicited at trial concerning the condition of the lost padlock. The owner of the restaurant, Caspar Borggreve, testified that he observed the padlock before it was taken into police custody. He indicated that the padlock was open, not broken, but that it was not necessary to break or cut that type of "long-neck" padlock to open it. Borggreve recounted an incident involving one of his cooks who opened, without a key, a "defective" padlock previously used on the freezer door. One merely had to "twist it and pull it up." He testified that he discarded that particular padlock and bought a "better, heavier" lock of the same type; however, he was not certain if this new padlock, in use on the evening the restaurant was burglarized, could be opened in the same manner without a key. A key for the padlock was accessible to restaurant employees in the restaurant's kitchen; however, Borggreve testified that the employees' key was in its proper place the following day.

Officer Rohrer testified that he observed that the lost padlock was either bent or pried open. Officer Schulz testified that the padlock was open when he found it and that the bottom "lock mechanism" part of the padlock was not damaged. He could not recall, however, whether or not the "long-neck" part of the padlock was open or pried apart. A photograph taken of the padlock from some distance, introduced by the State and admitted into evidence, does not reveal clearly the condition of the padlock.

Defense counsel argued to the jury at Eugene's trial his concern as to the State's loss of the items taken from the restaurant and automobile and their alleged importance in light of the testimony elicited concerning the condition of the padlock. The jury may have been concerned about this loss also as indicated by its inquiry of the court. 1

Eugene has raised the following issues in this appeal:

I. Did the trial court err in denying Eugene's motion for judgment of acquittal and motion for a new trial based upon the loss of physical evidence by the State?

II. Did the trial court err in denying Eugene's motion in limine filed to preclude the State from using evidence of defendant's prior convictions?

III. Did the trial court err in granting Eugene only one day of credit for time served prior to his conviction in the instant case?

I. State's Loss of Evidence

Prior to trial, Eugene filed a motion for inspection and discovery pursuant to Rule 16, N.D.R.Crim.P., requesting a wide-ranging assortment of documents and articles, including relevant, tangible objects within the possession, custody, or control of the prosecution. The record does not indicate whether or not the trial court ordered discovery pursuant to the motion. 2 Nor is it evident whether or not the defense made any additional effort to examine the lost items prior to trial. The State was served with a copy of the motion.

At the close of the case, Eugene moved for judgment of acquittal on grounds that the evidence produced at trial was insufficient to sustain a conviction of burglary. A second motion for judgment of acquittal was made on grounds of police misconduct and negligence in the loss of "vital" evidence. Eugene contended that it had been shown at trial that the items would have been exculpatory and, therefore, the case should not go to the jury. The trial court denied the motions for the reason that the weight and materiality of the lost padlock would probably have been in question even if it had been received in evidence and that there was sufficient evidence to present a prima facie case to the jury. Following the jury verdict, Eugene moved for a new trial alleging as a basis therefor several grounds, including the State's loss of evidence. The trial court indicated that the case "rose and fell on the totality of the circumstances" and denied the motion for a new trial because it was not known whether or not the items lost by the State were exculpatory.

Eugene appeals to this Court contending that the trial court erred in denying the motion for acquittal and ...

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