State v. Floyd
| Decision Date | 09 April 1990 |
| Docket Number | No. 89-406,89-406 |
| Citation | 790 P.2d 475,243 Mont. 269 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Raymond Ernest FLOYD, Jr., Defendant and Appellant. |
| Court | Montana Supreme Court |
Dan Yardley, Yardley & Yardley, Livingston, for defendant and appellant.
Marc Racicot, Atty. Gen., James Yellowtail, Asst. Atty. Gen., Helena William Nels Swandal, Park County Atty., and Jon M. Hess, Deputy County Atty., Livingston, for plaintiff and respondent.
Defendant Raymond Floyd appeals the judgment of a Park County jury finding him guilty of two counts of burglary. We affirm the District Court's judgment.
Defendant presents two issues:
1. Did the District Court err in denying defendant's motion to dismiss Count I at the conclusion of the State's case-in-chief?
2. Did the District Court err in not giving defendant's proposed instruction 9B regarding possession of the stolen property?
By information defendant was charged in separate counts under Sec. 45-6-204, MCA, with burglarizing two homes in Livingston, Montana. Count I arises from a break-in on July 16 or 17, 1988 at an apartment located on North 7th Street, and Count II stems from the break-in at a residence on South C Street sometime between July 11 and July 13, 1988.
A brief summary of the facts surrounding Count I follows:
When Gerald and Pearl Stratton and family, along with their houseguest Robert Armijo, returned from a visit to Yellowstone National Park, they discovered their apartment had been broken into sometime during their absence. The Strattons had been gone from their home between 10 a.m. on July 16, and 8 p.m. on July 17, 1988. Mrs. Stratton reported the burglary to the Livingston Police on July 18, 1988. Items taken during the burglary included a wristwatch, pocket change, clothing, a pair of diamond earrings and a 14-karat gold necklace. The necklace belonged to Mr. Armijo. Access to the Stratton home had been gained through a window.
Defendant gave a gold necklace to Anita Christensen early in the morning of July 17. Ms. Christensen testified at trial that she had met defendant about 10 p.m. on July 16 and they spent the evening with a group of people in various Livingston bars. At closing time the group, which included defendant's sister Margaret Moore, went to Ms. Moore's residence for a party. Ms. Moore resided in an apartment above the Strattons'.
Ms. Christensen left the party at the Moore home around 3 a.m. Shortly thereafter defendant visited Ms. Christensen at her home, but left when Ms. Christensen requested he do so. Defendant returned to Ms. Christensen's home at approximately 4 a.m. and gave her a gold necklace in a gray earring box.
Because she suspected the necklace may have been stolen, Ms. Christensen turned in the necklace to a dispatcher for the Livingston Police Department on July 18. The investigation that followed revealed the necklace was the one belonging to Mr. Armijo stolen from the Stratton home.
At trial Ms. Christensen testified that defendant had spoken of buying a car and a gold ring for her. Ms. Christensen stated she believed the defendant was trying to get intimate with her.
On July 19, the day after the Stratton burglary was reported and Ms. Christensen turned in the gold necklace, defendant voluntarily gave a statement. Defendant indicated that he had purchased the stolen necklace from Roger Phillips while leaving his sister's residence on the night of the party. Mr. Phillips denied selling any necklace to the defendant.
The police conducted a search of the defendant's residence in connection with Count I on July 19. None of the other items taken in the Stratton burglary were found in the search. The officers searching defendant's residence did, however, notice unusually large quantities of food. Livingston police had received a report a few days earlier of a break-in where large amounts of food had been taken from another Livingston residence.
The circumstances of Count I intersect with circumstances of Count II which are as follows:
John H. (Harve) Counts, Sr. resides at 221 South C Street in Livingston. While Mr. Counts was in Billings receiving medical treatment from July 11 to July 13, 1988, his house was burglarized. Upon returning, Mr. Counts immediately reported the break-in. Access had been gained by prying the back door open and many food items had been taken.
Livingston police conducted a second search of defendant's residence in connection with Count II on July 26. The police seized several items which Mr. Counts identified at trial as having been stolen from his home. Mr. Counts also testified that he has known defendant for several years and defendant was familiar with the Counts residence.
A trial was held February 27 through March 1, 1989 in Park County. Following the State's presentation of its case-in-chief, the defense moved for a directed verdict on Count I, the Stratton burglary. The motion was denied.
At the conclusion of the State's case-in-chief defense counsel presented a motion to dismiss Count I and enter a directed verdict of acquittal on the basis there was insufficient proof to go to the jury. Defendant argued that the State merely proved that defendant had possession of the necklace and evidence of possession of stolen property alone is insufficient to sustain a burglary conviction.
Whether a motion for directed verdict is granted lies within the discretion of the trial judge, as provided in Sec. 46-16-403, MCA, which reads in part:
When, at the close of the state's evidence ... the evidence is insufficient to support a finding or verdict of guilty, the court may, on its own motion or on the motion of the defendant, dismiss the action and discharge the defendant ... (Emphasis added.)
That the decision whether to dismiss a charge or direct a verdict of acquittal lies within the sound discretion of the trial court and will not be disturbed absent an abuse of that discretion is well-established in Montana case law. See, State v. Graves (Mont.1990), 788 P.2d 311, 313, 47 St.Rep. 483, 485; State v. Goltz (1982), 197 Mont. 361, 372, 642 P.2d 1079, 1085; State v. Just (1979), 184 Mont. 262, 277, 602 P.2d 957, 965. Furthermore, only if there is no evidence to support a guilty verdict may a verdict of acquittal be directed. Graves at 313, 47 St.Rep. at 485.
The District Court judge, in his sound discretion denied defendant's motion, stating that there was other corroborating evidence, beyond defendant's mere possession of the necklace, sufficient to submit the case to the jury. We agree with the District Court's assessment and will not disturb its decision on appeal.
The State's burden of proof with regard to the charge of burglary alleged in Count I was to show that the Stratton residence had been unlawfully entered for the purpose of committing an offense therein and that defendant was responsible therefor. Section 45-6-204(1), MCA. The record clearly shows that, in its case-in-chief, the State presented direct evidence sufficient to meet its burden.
The State presented testimony of witnesses Gerald Stratton and Robert Armijo indicating the Stratton residence had been broken into during the weekend of July 16-17, 1988, and that several items, including a gold necklace, had been taken in the burglary. Police Officer Keyes testified entry had been gained through a window. Officer Keyes also indicated that investigation revealed defendant was a frequent visitor to his sister's apartment upstairs from the Strattons'. Anita Christensen's testimony linked defendant to the Stratton burglary, establishing that defendant had been in the building which housed the Stratton apartment around 2 a.m. on July 17, 1988 and that defendant had given her the gold necklace in a gray earring box at about 4 a.m. the same day. Suspecting the necklace was stolen Ms. Christensen turned the necklace over to the police. Mr. Armijo identified the necklace at trial as having been stolen from his suitcase at the Stratton home.
The above-listed evidence corroborates the fact that defendant was in possession of the gold...
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State v. Long, 95-273
...adequately covered by a given instruction, it is not error for the trial court to refuse the proposed instruction. State v. Floyd (1990), 243 Mont. 269, 275, 790 P.2d 475, 479. We therefore conclude that the jury instructions as a whole accurately reflect the applicable law, and therefore, ......
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... ... State v. Toth, 2003 MT 208, ¶ 8, 317 Mont. 55, ¶ 8, 75 P.3d 323, ¶ 8. We review a district court's conclusions of law to determine whether the law was ... ...
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State v. Benson, 93-481
...is accompanied by other incriminating circumstances and a false or unreasonable explanation by the accused. State v. Floyd (1990), 243 Mont. 269, 273, 790 P.2d 475, 478; citing State v. Cox (1987), 226 Mont. 111, 114, 733 P.2d 1307, 1309. In Floyd, the defendant was in possession of a gold ......