State v. Hilsman

• Decision Date: 14 April 1983
• Docket Number: Cr. N
• Citation: State v. Hilsman, 333 N.W.2d 411 (N.D. 1983)
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Gerald HILSMAN, Defendant and Appellant. o. 887.
• Court: North Dakota Supreme Court

Page 411

333 N.W.2d 411

STATE of North Dakota, Plaintiff and Appellee, v. Gerald HILSMAN, Defendant and Appellant.

Cr. No. 887.

Supreme Court of North Dakota.

April 14, 1983.

Tom P. Slorby, States Atty., Minot, for plaintiff and appellee.

Edward J. Bosch, Minot, for defendant and appellant.

ERICKSTAD, Chief Justice.

Defendant/Appellant, Gerald Hilsman, is appealing from a jury conviction of two counts of robbery and from a judgment entered in accordance therewith by the District Court of Ward County. For the reasons hereinafter stated, we affirm.

On appeal, Hilsman raises four issues. His primary argument is twofold and concerns the trial court's evidentiary rulings. First, he attacks the trial court's restriction of defense counsel's cross-examination of the State's chief witness, Aaron Stein. Secondly, he contends the trial court erred by precluding defense counsel from attempting to impeach the credibility of Brian Stein, an individual who did not testify in Hilsman's trial.

At Hilsman's trial, witnesses for the State identified a black plastic toy gun, which had a piece of blue tape around its barrel, and a nylon stocking mask as being items utilized by the robber. The brand label on the nylon mask was that of L'eggs. Through the testimony of Aaron Stein, the State linked these items to Hilsman. ¹ Specifically, Aaron Stein testified that while he was living with Hilsman in early November, 1981, he saw the same toy gun and a pair of nylons in the defendant's cowboy hat. Stein further stated that simultaneous with his observation of the toy gun and nylons he found an empty L'eggs container in Hilsman's duffle bag.

Aaron Stein was the principal witness for the State without whose testimony a conviction would not have been likely. Hence, attacking Stein's credibility was an essential element of Hilsman's defense. Nevertheless, we must determine whether or not defense counsel's intended cross-examination of Stein was a permissible method in which to test his credibility. The specific question asked by defense counsel on cross-examination was:

"... you were accused of stealing a shotgun, weren't you?"

It is undisputed that there was no formal charge or conviction with regard to this incident.

Under Rule 608(b), N.D.R.Ev., ² a trial court may, in its discretion, allow a witness to be impeached through cross-examination with regard to specific instances of conduct not resulting in a conviction if the proffered conduct is probative of a witness's character for truthfulness or untruthfulness. United States v. Young, 567 F.2d 799 (8th Cir.1977), cert. denied, 434 U.S. 1079, 98 S.Ct. 1273, 55 L.Ed.2d 786 (1978); 3 Weinstein's Evidence p 608 (1982). In the case at bar, whether or not Stein was accused of theft was not probative of his veracity or honesty. See, 3 Weinstein's Evidence p 608, pp. 608-32--608-33 (1982). Furthermore, it is well-established that mere accusations of a crime cannot be used to impeach the credibility of a witness. State v. Glavkee, 138 N.W.2d 663, 666 (N.D.1965); United States v. Kirk, 496 F.2d 947, 949 (8th Cir.1974); 98 C.J.S. Witnesses Sec. 515 (1957). Hence, we believe the trial court did not abuse its discretion by curtailing defense counsel's attempt to destroy Stein's credibility by cross-examining him with regard to his being accused of stealing a shotgun.

Hilsman also contends that the trial court erroneously prohibited him from subpoenaing the sheriff of Williams County who would have allegedly testified that Brian Stein was fired as a deputy sheriff because he committed a theft. Rule 608(b), N.D.R.Ev., permits a witness's credibility to be attacked through cross-examination with regard to specific instances of conduct. However, in this instance, defense counsel was attempting to impeach, through the use of extrinsic evidence, the credibility of Brian Stein, an individual who was not a witness for either the State or the defense. Accordingly, we conclude the trial court did not abuse its discretion by precluding defense counsel from attempting to impeach the credibility of Brian Stein.

Hilsman's third contention is that the State's reference to a polygraph exam in its closing argument constitutes reversible error. ³ When the prosecutor mentioned the word "polygraph" in his closing argument, it is evident that he only intended to refer to the jury's instructions with regard to defense counsel's statement in the presence of the jury that "he [Hilsman] agreed to take a lie detector test."

Procedurally, this issue arises as a result of the trial court's ruling made on a motion for mistrial following a reference by the prosecutor to the polygraph. After consideration of the motion in chambers, the court denied the motion, finding the reference not prejudicial. ⁴

A trial court has discretionary control over the scope of counsel's opening and closing arguments; therefore, we will not reverse a trial court on the basis that counsel's arguments were excessive in scope unless a clear abuse of discretion is shown. State v. Mehralian, 301 N.W.2d 409, 418 (N.D.1981); State v. Henderson, 156 N.W.2d 700, 708 (N.D.1968). Furthermore, counsel does not exceed the permissible scope of his closing argument by referring to instructions that the court intends to give the jury. State v. Lenarchick, 247 N.W.2d 80, 98, 74 Wis.2d 425 (1976); Shelby v. State, 281 N.E.2d 885, 887, 258 Ind. 439, 442 (1972); State v. Davis, 333 P.2d 1089, 1091, 53 Wash.2d 387, 391 (1959), cert. denied, 359 U.S. 981, 79 S.Ct. 902, 3 L.Ed.2d 930 (1959); 23A C.J.S. Criminal Law Sec. 1090 (1961). In light of the circumstances, we conclude that the trial court did not abuse its discretion in denying the motion for mistrial.

In his fourth and final argument, Hilsman attacks the sufficiency of the evidence. He claims that the State's evidence against him is entirely circumstantial and does not sustain the jury verdict of guilty beyond a reasonable doubt.

The State concedes that its case against Hilsman is based totally upon circumstantial evidence. However, circumstantial evidence alone may justify a conviction if it is of such probative force as to enable the trier of fact to conclude that the defendant is guilty beyond a reasonable doubt. State v. Olson, 290 N.W.2d 664, 671 (N.D.1980); State v. Erickson, 231 N.W.2d 758, 765 (N.D.1975); State v. Johnson, 216 N.W.2d 704, 706 (N.D.1974). Furthermore, at the trial level, circumstantial evidence must be conclusive and must exclude every reasonable hypothesis of innocence, but on the appellate court level the role of the Supreme Court is merely to review the record to determine if there is competent evidence that allows the jury to draw an inference reasonably tending to prove guilt, and fairly warranting a conviction. State v. McMorrow, 286 N.W.2d 284, 287 (N.D.1979); State v. Schuler, 243 N.W.2d 367, 371 (N.D.1976); State v. Allen, 237 N.W.2d 154, 161 (N.D.1975).

Upon scrutinizing the record, we have found much circumstantial evidence, all of which is consistent with Hilsman's guilt. At this time, we will briefly summarize the State's case. A person absconded with $191 from the Econ-O-Inn on November 30, 1981, and with $300 from the General Store on December 14, 1981. Witnesses described this person as wearing a plaid jacket, a dark blue or...