State v. Fast Horse
| Citation | 490 N.W.2d 496 |
| Decision Date | 29 May 1992 |
| Docket Number | No. 17664,17664 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Lavern C. FAST HORSE, Defendant and Appellant. . Considered on Briefs |
| Court | Supreme Court of South Dakota |
Mark Barnett, Atty. Gen., Scott Bogue, Asst. Atty. Gen., Pierre, for plaintiff and appellee.
Michael S. Stonefield, Rapid City, for defendant and appellant.
Lavern C. Fast Horse (Fast Horse) appeals his conviction for embezzlement of property received in trust. We affirm.
Jeff Dale (Dale) operated a business in Rapid City, South Dakota that sold satellite systems, televisions, VCRs and camcorders. Fast Horse visited Dale's business in December 1990 seeking employment. Dale had no salaried positions available but told Fast Horse that if he could bring in a customer or sell an item he would give him a small commission. After that time, Fast Horse would periodically stop in Dale's business to talk to Dale or to obtain literature on Dale's merchandise. During one of these visits, Fast Horse noticed a camcorder Dale had displayed for sale. Fast Horse told Dale he knew a local Indian Tribe he once worked for was looking for a video camera and asked if he could take the camcorder to show the tribe. Since Dale had previous information that the tribe was looking for a camcorder, he agreed to let Fast Horse take the one on display to show to the tribe.
Fast Horse returned to Dale's store several days after taking the camcorder but did not bring the item back with him. He told Dale the tribe did not want the camcorder but one of the tribal officials was trying it out to see if he wanted to purchase it for his personal use. A few days later, Fast Horse again stopped in Dale's business without returning the camcorder. When Dale asked Fast Horse about the item he said it was still on the reservation. Fast Horse also said he was going to be leaving soon on a trip to California. After Fast Horse left, Dale contacted two tribal officials to inquire about the whereabouts of the camcorder. One of them confirmed Fast Horse had shown the tribe the item but said Fast Horse took it back when the tribe failed to purchase it. When Dale attempted to reach Fast Horse, he found he had already left for California. In fact, Fast Horse took the camcorder with him to California where, according to his own testimony, it was seized by law enforcement authorities from his hotel room.
State ultimately filed an information charging Fast Horse with one count of theft by deception and an alternative count of embezzlement of property received in trust. The matter was tried before a jury in July 1991 and the jury returned a verdict finding Fast Horse guilty of embezzlement of property received in trust. A judgment was entered accordingly and Fast Horse appeals.
The trial court gave the following jury instruction on circumstantial evidence:
Direct evidence means evidence that directly proves a fact. Circumstantial evidence means evidence that proves a fact from which a conclusion can be drawn that another fact exists.
It is not necessary that facts be proved by direct evidence. They may be proved also by circumstantial evidence or by a combination of direct and circumstantial evidence. The law makes no distinction between direct and circumstantial evidence as a means of proof. Neither is entitled to any greater weight than the other.
During settlement of the jury instructions, Fast Horse proposed the following circumstantial evidence instruction which was rejected by the trial court:
Direct evidence means evidence that directly proves a fact, without an inference, and which in itself, if true establishes that fact.
Circumstantial evidence means evidence that proves a fact from which an inference of the existence of another fact may be shown.
It is not necessary that facts be proven by direct evidence. They may be proved also by circumstantial evidence or by a combination of direct and circumstantial evidence. The law makes no distinction between direct evidence and circumstantial evidence as a means of proof. Neither is entitled to any greater weight than the other.
Where the case of the state rests substantially or entirely on circumstantial evidence, you are not permitted to find the defendant guilty of the crime charged against him unless the proved circumstances are not only consistent with the guilt of the defendant, but cannot be reconciled with any other rational conclusion and each fact which is essential to complete a set of circumstances necessary to establish the defendant's guilt has been proved beyond a reasonable doubt.
If all the facts and circumstances shown can be reasonably accounted for upon any theory consistent with the innocence of the defendant, the jury must acquit the defendant.
As Fast Horse submits, the trial court's jury instruction lacks the language contained in his proposed instruction concerning prosecutions based substantially on circumstantial evidence. Citing State v. Breed, 399 N.W.2d 311 (S.D.1987), where we stressed the importance of such language, Fast Horse argues the trial court's rejection of his proposed instruction constitutes reversible error. We disagree.
Breed was convicted of several counts of burglary, theft and receiving stolen property. On appeal, we found the evidence against him "totally circumstantial," particularly as to identification. Breed, 399 N.W.2d at 312. As to the sufficiency of the jury instructions on circumstantial evidence, nearly identical to the one in this case, we held:
The trial court did not instruct the jury that where the case of the state rests substantially or entirely on circumstantial evidence, they are not permitted to convict the accused unless (1) the proved circumstances are not only consistent with the guilt of the accused, but cannot be reconciled with any other rational conclusion and (2) each fact which is essential to complete a set of circumstances necessary to establish the accused's guilt has been proved beyond a reasonable doubt.
The trial court's failure to so instruct the jury in our opinion clearly and substantially prejudiced appellant. Even though this issue was not raised on appeal, we conclude that this plain error requires a retrial.
Breed, 399 N.W.2d at 312-13 (emphasis added) (citations omitted).
In contrast with Breed, where state's case was totally circumstantial, the only element of embezzlement in any real dispute in the present case was whether Fast Horse acted with an intent to defraud. Generally, a circumstantial evidence instruction is not required where intent is the only element not proven by direct evidence. See, Spears v. State, 272 Ind. 634, 401 N.E.2d 331 (1980), modified on other grounds, 272 Ind. 647, 403 N.E.2d 828 (1980); State v. Kaufman, 265 N.W.2d 610 (Iowa 1978), State v. Moehlis, 250 N.W.2d 42 (Iowa 1977) *; Lindsey v. State, 671 P.2d 57 (Okla.Crim.App.1983); State v. Brooks, 631 P.2d 878 (Utah 1981).
In Spears, supra, the defendant was convicted of assault with intent to kill and second degree murder. During trial, the trial court failed to give a proper circumstantial evidence instruction. On appeal, the Indiana Supreme Court found reversible error in the failure to give the instruction as to the murder charge because that charge was proved only with circumstantial evidence. However, as to the assault with intent to kill charge, the Indiana Court observed:
Defendant claims that any evidence of intent to kill was circumstantial and, therefore, the instruction [on circumstantial evidence] would apply equally to that charge. The evidence from which intent could be inferred was direct. Thus, the instruction would not apply to the assault with intent to kill charge. To hold otherwise would require a circumstantial evidence instruction in every case involving a crime containing the element of intent. Unnecessary confusion would result from such a course.
Spears, 401 N.E.2d at 335. Or as quoted by the Oklahoma Court of Criminal Appeals in Lindsey, supra:
Intent, in practically all cases, must be shown by the inference arising from the facts shown. We do not think that, from a practical standpoint, it is correct to say that it is "a conviction on circumstantial evidence," where all salient facts of the case (including the facts on which the inference itself rests) are directly proved, and only the intent with which proved acts were committed is a matter of inference. If so, it would be proper to speak of a conviction for homicide as being "a conviction on circumstantial evidence," where eyewitnesses see the killing, but the jury must infer the malice or heat of passion, as the case may be, from circumstances surrounding the transaction.
Lindsey, 671 P.2d at 59 (quoting Love v. State, 9 Ga.App. 874, 72 S.E. 433 (1911)).
These authorities are consistent with the general view that:
The failure or refusal to give an instruction on circumstantial evidence is not error where there is direct evidence that the defendant committed the act charged. So also, it would not be error to fail or refuse to instruct upon circumstantial evidence where ... the state relied on direct evidence to prove the acts of crime and the identity of the perpetrator and only relied on circumstantial evidence to prove intent.
75B Am.Jur.2d Trial Sec. 1391 (1992) (emphasis added). See also, Annotation, Modern Status of Rule Regarding Necessity of Instruction on Circumstantial Evidence in Criminal Trial--State Cases, 36 A.L.R.4th 1046, Sec. 6 (1985) ().
Here, since the only element proved by circumstantial evidence was Fast Horse's intent, we find no error...
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