State v. Hernandez

• Decision Date: 27 February 1968
• Docket Number: CA-CR,No. 2,2
• Citation: 437 P.2d 952,7 Ariz.App. 200
• Parties: The STATE of Arizona, Appellee, v. Jesus Flores HERNANDEZ, Appellant. 84.
• Court: Arizona Court of Appeals

Page 952

437 P.2d 952

7 Ariz.App. 200

The STATE of Arizona, Appellee, v. Jesus Flores HERNANDEZ, Appellant.

No. 2 CA-CR 84.

Court of Appeals of Arizona.

Feb. 27, 1968.

Rehearing Denied April 1, 1968.

Darrell F. Smith, Atty. Gen., Carl Waag, Asst. Atty. Gen., William J. Schafer, III, County Attorney, Pima County, Tucson, for appellee.

O. G. Marquez, Tucson, for appellant.

MOLLOY, Judge.

This appeal questions the admission of evidence pertaining to a similar offense, the failure of the court to instruct the jury on the limited purpose of the testimony of the similar offense, and the overall sufficiency of the evidence to warrant a conviction of grand theft.

The facts are as follows. On March 9, 1966, at approximately 7 p.m., defendant drove a 1957 Dodge automobile into the Thunderbird Service Station located at 1850 East 36th Street, in the City of Tucson. He stopped his automobile alongside the gas pumps. The service station attendant came out the car and noticed a damaged right rear fender. Upon the defendant's request, he opened the hood of the car and checked the transmission. While so doing, the attendant was in such position that he could not view the glassed-in office where the cash register was kept. A check of the transmission for a few minutes revealed nothing amiss, and defendant then drove out of the station, south on Campbell Avenue, without ever having gotten out of the car. As the defendant's car was pulling out, a new customer was driving in, and the attendant sold gasoline to this customer. When he walked back to the office to deposit the money he received from this sale, he found the cash register, which had been in the office prior to defendant's entering the station, gone.

That same evening, at approximately 7:30 p.m., a Mrs. Smith, who lived in a relatively sparsely settled, desert area, one-half mile from the gas station, drove into the private road leading to her house. She saw a car parked near her house. As she drov in, the car drove away. The following morning, Mr. Smith found a cash register beside the road leading to the Smith home. He recognized it as being that of the Thunderbird station where the Smiths were customers and he returned it to the service station.

On the same morning, officers of the Tucson Police Department, Detective Division, drove to the Smith residence and began searching for additional evidence. They found an automobile hubcap and some tire tracks in the area. They then drove to the residence of one Arthur Valenzuela and there examined a 1957 Dodge belonging to Valenzuela. They noticed a hubcap missing from the right rear wheel of the vehicle and also noticed the right rear fender was damaged. Pictures were taken of the vehicle, including the tire tread design of the car's tires. The vehicle was identified by the service station attandant as being the car driven by the defendant on the evening in question. It was shown at trial that the tread design of the tires matched those found in the tracks beside the road on the Smith property and that the hubcap found beside the Smith road fit the wheel of Valenzuela's car which was missing a hubcap. A black plastic chip, approximately 1 1/4 inches by 3/4's of an inch by 1/8th inch in size, was found on the rear floorboard of the Dodge automobile. This chip fitted 'perfectly' ¹ a broken-out piece of the cash register drawer.

Without objection from the defendant, one Frank Plummer, operator of another south-side gas station, testified that on February 3, 1966, some 34 days prior to the incident in question, the defendant drove into his gas station in this same 1957 Dodge automobile and asked to have his oil checked. While Plummer was servicing this car, some person ran into Plummer's gas station office and stole $187 from the cash register.

The defendant did not testify in defense, but put on an alibi witness who somewhat tentatively testified that he had been drinking beer with defendant between 6 and 8 or 8:30 p.m., on what he thought was probably March 9, 1966.

Defendant's first contention is that it was error for the court to deny granting of a mistrial after the evidence of the prior bad incident at Plummer's gas station was adduced.

Our Supreme Court has been meticulous in reversing cases in which evidence of other criminal offenses has been admitted erroneously. See, e.g., State v. Hughes, 102 Ariz. 118, 426 P.2d 386 (1967); State v. Gallagher, 97 Ariz. 1, 396 P.2d 241 (1964); State v. Gortarez, 96 Ariz. 206, 393 P.2d 670 (1964); State v. Jacobs, 94 Ariz. 211, 382 P.2d 683 (1963); and State v. Little, 87 Ariz. 295, 350 P.2d 756, 86 A.L.R.2d 1120 (1960). All of these decisions rest on a common foundation--that evidence of other offenses is prejudicial and unless such evidence has direct probative value in the case being tried, the evidence must be excluded.

And yet, it has been recognized time and again by our Supreme Court that there are occasions when conduct of the defendant at other times than during the commission of the crime with which he is charged has direct probative value, and, when such is the case, the admission of such evidence is proper even though such conduct might be criminal in nature. State v. Hardin, 99 Ariz. 56, 406 P.2d 406 (1965); State v. DeVinney, 98 Ariz. 273, 403 P.2d 921 (1965); State v. Akins, 94 Ariz. 263, 383 P.2d 180 (1963); and State v. Daymus, 90 Ariz. 294, 298--299, 367 P.2d 647, 650 (1961).

We believe the fundamental test laid down by our Supreme Court is that of relevancy. The question in each case is whether the proffered evidence has a direct probative bearing upon an issue on trial. As stated by Wigmore:

'It has already been noted (ante, § 216) that the criminality of prior acts thus offered does not affect their admissibility. Either they are relevant, by the above tests, or they are not; if they are not, they are rejected because they are irrelevant; if they are, they are received in spite of their criminality. The only bearing of the latter quality is that, if they are irrelevant, it furnishes another reason for excluding them, namely, the reason of Undue Prejudice, as enforced in the Character rule (ante, § 194); for these other criminal acts would not merely be irrelevant, but would go to evidence the defendant's character and career as bad and thus to create undue prejudice,--a mode of argument against him that is forbidden by a fundamental principle.' 2 Wigmore, Evidence § 305, at 205 (3d ed. 1940).

Accord, Udall, Arizona Law of Evidence § 115, at 228--29 (1960), and see People v. Peete, 28 Cal.2d 306, 169 P.2d 924 (1946), cert. denied 331 U.S. 783, 67 S.Ct. 1185, 91 L.Ed. 1815 (1947).

As we view the evidence pertaining to the incident at Mr. Plummer's service station, we believe it has some bearing upon the defendant's intent on the occasion upon which he is here charged with crime. Proof of mental state is always difficult and almost invariably proof on this subject must be circumstantial in nature. 29 Am.Jur.2d Evidence § 355, at 404--05. Taking the State's proof at its fullest value, as we are required to do on appeal, State v. Valenzuela, 101 Ariz. 230, 418 P.2d 386 (1966), the defendant's presence at the service station at the time of this theft is well established by an eyewitness identification. Equally well established is the fact the defendant's conduct, wittingly or unwrittingly, assisted some unknown person in this theft. The physical circumstances surrounding the taking of this cash register indicate that the theft could not have been accomplished as it was unless the attendant's attention were diverted in one manner or another. The cash register was sitting in a glassed-in office, well lighted, and it could only be when the attendant was busy with other matters that one could surreptitiously enter the office and leave with the entire cash register.

In determining whether the defendant's conduct on this occasion was witting or unwitting, it is our view that the incident at the other service station is of some assistance to reasonable men in reaching a conclusion. That the one 'assist' may have been accidental would be a likely possibility, but that two such instances were coincidental is substantially less likely. The following quotation is pertinent:

'Another class of cases consists of those in which it becomes necessary to show that the act for which the prisoner was indicted was not accidental,--e.g., where the prisoner had shot the same person twice within a short time, or where the same person had fired a rick of grain twice, or where several deaths by poison had taken place in the same family, or where children of the same mother had mysteriously died. In such cases it might well happen that a man should shoot another accidentally, but that he should do it twice within a short time would be very unlikely.' State v. Lapage, 57 N.H. 245, 294 (1876).

And see 2 Wigmore, Evidence § 302, at 196--97 (3d ed. 1940).

Here there are striking similarities between these two incidents. Not only was the same basic method used in accomplishing the theft, but the same car, which was not the property of the defendant, was driven by the defendant on both occasions. This car is tied in to the second theft by a chain of physical facts which can only be reasonably explained on the theory that this was the car used in transporting the stolen cash register to where it was broken open.

Taking these two offenses together, we believe they forge a chain of circumstantial evidence sufficient to meet the test laid down by our Supreme Court that the evidence must not only be indicative of guilt but must be inconsistent with every reasonable hypothesis of innocence. State v. Hughes, 102 Ariz. at 123, 426 P.2d at 391 (1967). The proof of the two incidents reinforce one another and in this way comply with the rule of Hughes that the evidence of the other conduct, criminal in nature, must be sufficient to go to a jury. (426 P.2d at 391.) We believe it is...