State v. Hall, 84-790

• Decision Date: 30 April 1985
• Docket Number: No. 84-790,84-790
• Citation: 371 N.W.2d 187
• Parties: STATE of Iowa, Plaintiff-Appellee, v. Burl Grant HALL, Defendant-Appellant.
• Court: Iowa Court of Appeals

Page 187

371 N.W.2d 187

STATE of Iowa, Plaintiff-Appellee, v. Burl Grant HALL, Defendant-Appellant.

No. 84-790.

Court of Appeals of Iowa.

April 30, 1985.

Charles Harrington, Chief Appellate Defender, for defendant-appellant.

Thomas J. Miller, Atty. Gen., and Lona Hansen, Asst. Atty. Gen., for plaintiff-appellee.

Considered by SNELL, P.J., and SCHLEGEL and SACKETT, JJ.

SCHLEGEL, Judge.

Defendant appeals his conviction of burglary in the second degree in violation of Iowa Code sections 713.1 and 713.5 (1983), and as an habitual offender in violation of Iowa Code section 902.8 (1983). Defendant claims that the evidence was insufficient to support a verdict of guilty, and also claims that there was insufficient evidence to submit to the jury the State's theory of aiding and abetting. We affirm.

Certain antiques, which were to be sold as a part of an auction of personal property of Mr. Peterson, recently deceased, were found to be missing from the house where the property was located. The items had been in the house as of five to six p.m. on September 7, 1983. They were determined to be missing the next evening by the auctioneer who had been involved in preparing certain property for auction. He placed the disappearance of the property between five o'clock September 7 and five o'clock September 8, 1983. Upon his discovery of the missing property, he looked around for a place of entry into the house and discovered a broken window in the basement. The broken window produced an opening approximately ten inches in diameter, or ten inches by ten inches, through which it was stated a slim man or woman might be able to enter the basement. There was no testimony that could establish, with certainty, when the window had been broken. There was no other evidence of surreptitious entry offered at the trial.

On September 9, 1983, defendant and an unidentified female sold certain antique items to Lawrence Murphy, an antique dealer in Colo, Iowa. The items, a clock and two pieces of glassware, for which Murphy gave defendant a $100 check, were shown to be items that were missing from the decedent's house. That same afternoon defendant presented the check written by Mr. Murphy to Joyce Buck, a loan officer at Central State Bank, State Center, Iowa, for cash. She observed the vehicle in which Hall arrived at the bank, and testified that it was the same car she had observed driving past the Peterson home on September 7. She observed that there appeared to be a man and a woman in the car as it went by the house twice, but that she could not see who the occupants were.

Ms. Buck knew Hall, and knew that his mother had an account in the bank. She engaged him in conversation about the source of the check, and Hall advised her that he had been out of work so that he was selling some antiques that had been in the family for a long time.

Defendant moved for a directed verdict of acquittal at the close of the State's evidence on the grounds that there was insufficient evidence to submit the case to the jury. He renewed that motion at the close of all the evidence, and objected to the giving of certain instructions, including the instruction that allowed the jury to consider defendant as an aider and abettor. Judgment and sentence were pronounced by the court and this appeal ensued.

I. The standard of review in a case involving a challenge to the sufficiency of the evidence is stated as follows:

When reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the State, including all legitimate inferences and presumptions which may fairly and reasonably be deduced from the record. It is necessary to consider all of the evidence and not just the evidence supporting the verdict. A jury verdict is binding upon this court and will be upheld unless the record lacks substantial evidence to support the charge. Substantial evidence means evidence which would convince a rational trier of fact that the defendant is guilty of the crime charged beyond a reasonable doubt.

State v. Blair, 347 N.W.2d 416, 419 (Iowa 1984) (citations omitted). In such an analysis, direct and circumstantial evidence are equally probative. Iowa R.App.P. 14(f)(16).

II. Defendant's conviction of the crime of burglary in the second degree cannot be upheld in this case unless the jury is permitted, by reason of defendant's possession of recently stolen property, to draw an inference that defendant was guilty of the burglary during which the property was stolen. The trial court gave the following instruction on that issue:

If you find that the State has proven beyond a reasonable doubt each and all of the following facts, then you may, but are not required to, infer that the defendant broke the Raymond Peterson residence:

(a) That the property claimed to have been stolen from the Raymond Peterson was, in fact, stolen at the time such residence was broken.

(b) That the defendant had unexplained possession of that property.

(c) That defendant's possession of that property was recent.

What is recent possession of property cannot be precisely determined. The nature of the property, its ease of transfer and all other facts and circumstances shown are to be considered as bearing on whether the interval between the time of the alleged burglary and the defendant's alleged possession was so short as to render it reasonably certain that there could have been no intermediate change of possession.

It is important that you keep in mind that it is your exclusive province as jurors to determine whether the facts and circumstances shown by the evidence in this case warrant any inference which the law permits you to draw from possession of recently stolen property, and you are not required to make this inference. If any possession a defendant may have had of recently stolen property is consistent with innocence, or if you entertain reasonable doubt of guilt, then you must acquit the defendant.

An almost identical instruction was given by the trial court in the case of State v. Lewis, 242 N.W.2d 711, 723 (Iowa 1976). In that case, the Supreme Court held:

In our opinion bare proof of possession of property...