State v. Flynn
| Decision Date | 30 December 1999 |
| Docket Number | No. 97-614.,97-614. |
| Court | New Hampshire Supreme Court |
| Parties | The STATE of New Hampshire v. Raymond X. FLYNN. |
Philip T. McLaughlin, attorney general (Christopher H.M. Carter, assistant attorney general, on the brief and orally), for the State.
Thomas Arthur Hensley, of Taunton, Massachusetts, by brief and orally, and Strimbeck and Morrison, of Littleton (Gillian Morrison on the brief), for the defendant.
The defendant, Raymond X. Flynn, appeals his convictions of burglary, see RSA 635:1, I (1996), and theft, see RSA 637:3 (1996), following a jury trial in Superior Court (Perkins, J.). He asserts that the State failed to introduce sufficient evidence that: (1) he was not licensed or privileged to enter the burglarized premises; and (2) he lacked license or permission to carry away the property of another. We affirm.
At trial, the State presented the following evidence. On September 21, 1996, at the Mount Washington Hotel, the manager and a bellman were conducting a routine security check. They encountered the defendant on the third floor wearing tennis shorts and a dress shirt. The defendant loudly remarked to them that he was "[g]etting ready to play tennis in a couple of hours." The manager was suspicious and followed the defendant.
Once the defendant was outside the hotel, the manager approached him and inquired if he was a hotel guest. The defendant said that he was, but he could not produce his guest identification. The defendant agreed to return to the hotel with the manager, but on the way back, he ran away. The manager followed the defendant to the hotel parking lot where a brown Cadillac pulled out and moved quickly toward him. The manager wrote down the car's license plate number and observed the direction the car was traveling. The Carroll Police Department, which was contacted and asked to look for the car, spotted the unoccupied car on Cherry Mountain Road. Soon thereafter the police spotted the defendant on the same road. The defendant acknowledged he had been at the hotel earlier that day and agreed to return with the police. At the hotel, the manager identified the defendant as the man he had spoken with earlier in the day.
During a search of the area near the defendant's car, the police discovered a pair of shorts containing a woman's ring in the pocket. Subsequent searches of the area turned up a dress shirt, a black watch box from Tiffany & Company, a Tiffany watch, two other rings, a master room key, a latex glove, and three credit cards. The defendant was indicted for, inter alia , the burglary of a guest room at the hotel and the theft of a diamond ring. The superior court denied the defendant's motion to dismiss these indictments, and the jury subsequently returned guilty verdicts. This appeal followed.
On appeal, the defendant first contends that there was insufficient evidence to sustain the State's burden of proving that he lacked license or privilege to enter the hotel room registered to a guest, Dr. Wasserman. The defendant concedes that the doctor's wife must be treated as a co-renter, but contends that her testimony alone was insufficient to establish lack of license or privilege to enter the Wassermans' hotel room.
RSA 635:1, I, states:
A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied section thereof, with purpose to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter. It is an affirmative defense to prosecution for burglary that the building or structure was abandoned.
While Mrs. Wasserman testified that she did not authorize the defendant to enter her hotel room, Dr. Wasserman was not called as a witness. The defendant contends that this circumstantial evidence is insufficient to support his conviction.
When the evidence presented is circumstantial, it must exclude all rational conclusions except guilt in order to be sufficient to convict. In applying this standard, we view the evidence in the light most favorable to the State, and examine each evidentiary item in the context of all the evidence, not in isolation.
State v. Richardson , 141 N.H. 139, 141, 679 A.2d 565, 566 (1996) (quotations and citations omitted). The defendant presents several cases, the majority of which are from Texas during the early part of this century, to support his argument that the failure to call both owners of a property is fatal to a burglary charge. But see Jingles v. State , 752 S.W.2d 126, 128 (Tex.App.1987) (). While we have never directly ruled whether the absence of license or privilege to enter can be proved without testimony from all owners or occupiers of a burglarized property, we conclude that our own case law provides the appropriate guidance in this case.
In State...
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