State v. Hoffman

• Decision Date: 06 September 1985
• Docket Number: No. 15162,15162
• Citation: 705 P.2d 1082,109 Idaho 127
• Parties: STATE of Idaho, Plaintiff-Respondent, v. James C. HOFFMAN, Jr., Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 1082

705 P.2d 1082

109 Idaho 127

STATE of Idaho, Plaintiff-Respondent, v. James C. HOFFMAN, Jr., Defendant-Appellant.

No. 15162.

Court of Appeals of Idaho.

Sept. 6, 1985.

James C. Hoffman, pro se.

Jim Jones, Atty. Gen. by Lynn E. Thomas, Sol. Gen., and A. Rene Fitzpatrick, Deputy Atty. Gen., Boise, for plaintiff-respondent.

BURNETT, Judge.

James Hoffman stands convicted by a jury of first degree burglary and grand larceny. He received concurrent, indeterminate twelve-year sentences for the offenses. On appeal he argues that the evidence is insufficient to support the jury's verdict, that he was denied a fair trial due to juror prejudice, and that the district judge should have declared a mistrial when evidence of an uncharged crime was presented by the prosecutor. We affirm the judgment of conviction as to each offense.

We first address the sufficiency of the evidence. The state showed that on May 31, 1981, at approximately 1:15 a.m., Hoffman was apprehended, along with his wife and brother, while walking through a subdivision in west Boise. In the brother's possession were a pair of gloves and two screwdrivers, one about eighteen inches long. His pockets were found to contain gold toenail and fingernail clippers belonging to an occupant of a house in the subdivision. Hoffman's wife also had gloves; and her pockets contained a large quantity of coins, together with a checkbook and bank guarantee card belonging to another occupant of the same house. Hoffman, a roofer by trade, was carrying a tool variously described as a box cutter or sheetrock cutter. The trio told police that they were taking a walk, waiting for their car, which had overheated, to cool down. However, the police discovered that the hood of the car was cold and that two homes in the neighborhood, including the house where the owners of the gold clippers, checkbook and bank card lived, had been burglarized. Two guns, a stereo, a television set and other items were found hidden under bushes near that house. Doors to the homes were scarred by fresh prymarks. A detective later testified that the marks visually were "checked" against the blade width of the eighteen-inch screwdriver carried by Hoffman's brother.

The trio were charged with two counts of burglary and one count of larceny. Ultimately, the charges against Hoffman's brother were dismissed as part of a plea bargain on an unrelated crime. See State v. Hoffman, 108 Idaho 720, 701 P.2d 668 (Ct.App.1985). Charges against the wife also were dropped for reasons not germane to the issues in this appeal. Hoffman was tried. In his defense, he, his mother and a friend testified that he had been at the family home in Meridian, Idaho, just west of Boise, until approximately 12:45 a.m., when he departed in his car to pick up the brother at an acquaintance's house in the Boise subdivision. The acquaintance did not testify. Hoffman contended that he could not have engaged in two burglaries and a larceny during the period before he was apprehended. The jury found Hoffman guilty of participating in a burglary and larceny at the house from which property was taken. He was found not guilty on the other burglary charge.

Hoffman now invites our attention to the fact that the evidence against him was circumstantial. However, circumstantial evidence is a permissible method of proof; indeed, in some cases it may be the only means of establishing guilt. State v. Paradis, 106 Idaho 117, 676 P.2d 31 (1983), cert. denied, 468 U.S. 1220, 104 S.Ct. 3592, 82 L.Ed.2d 888 (1984). But regardless of whether direct or circumstantial evidence is adduced at trial, our standard of appellate review remains limited in scope.

A judgment of conviction, entered upon a jury verdict, will not be set aside where there is substantial evidence upon which any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Filson, 101 Idaho 381, 386, 613 P.2d 938, 943 (1980). "[W]e are precluded from substituting our judgment for that of the jury as to the credibility of witnesses, the weight of the testimony, and the reasonable inferences to be drawn from the evidence." State v. Campbell, 104 Idaho 705, 718-19, 662 P.2d 1149, 1162-63 (Ct.App.1983). Furthermore, we view the evidence in the light most favorable to the respondent. State v. Fenley, 103 Idaho 199, 203, 646 P.2d 441, 445 (Ct.App.1982).

State v. Decker, 108 Idaho 683, 684, 701 P.2d 303, 304 (Ct.App.1985).

The weight and credibility of the evidence are for the jury to determine. State v. Haggard, 89 Idaho 217, 404 P.2d 580 (1965). Where substantial, though conflicting, evidence supports the jury's verdict, an appellate court cannot reweigh the evidence. State v. Cotton, 100 Idaho 573, 602 P.2d 71 (1979). Here, the jury evidently disbelieved Hoffman's version of events. In our view, the state's evidence was sufficient to allow rational triers of fact to conclude, beyond a reasonable doubt, that Hoffman, his wife and brother had driven in Hoffman's car to the Boise subdivision where they jointly engaged in criminal activity. Concededly, Hoffman's specific acts during commission of the crimes were not shown. But the fact remains that two other persons in his company were found to possess stolen property. Where two or more persons are acting in concert, possession by one is deemed to be possession by all. State v. Daugherty, 12 Ariz.App. 366, 470 P.2d 686 (1970). Moreover, possession of recently stolen property is evidence from which a larceny may be permissively inferred by the triers of fact. State v. Owens, 101 Idaho 632, 619 P.2d 787 (1979). Similarly, evidence of a forced entry will support a permissive inference of burglary with the requisite intent to commit larceny or a felony. State v. Williams, 103 Idaho 635, 651 P.2d 569 (Ct.App.1982). We conclude that the jury's verdict is adequately sustained by the evidence. It will not be disturbed.

Hoffman next contends that his trial was contaminated by juror prejudice. During voir dire, prospective jurors were asked by defense counsel whether they could remain impartial upon learning that Hoffman, who planned to testify at trial, had been convicted of a prior burglary. One juror in particular said that a previous burglary conviction could influence his outlook. However he also stated that he would be willing to acquit if the state merely presented evidence of suspicious circumstances rather than proving its case beyond a reasonable doubt.

An accused's right to trial by jury contemplates a panel of impartial, indifferent jurors. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). A juror who has formed an opinion of guilt or innocence is not impartial and may be disqualified. Reynolds v. United States, 98 U.S. 145, 8 Otto 145, 25 L.Ed. 244 (1878). However, if the trial judge is soundly persuaded that the juror will set aside his initial impression, and render a verdict based on the evidence presented at trial, the juror can be allowed to remain. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). The chief purpose of voir dire is to enable the judge and counsel to identify jurors about whom such a determination must be made. Idaho Code § 19-2013 allows the accused to challenge a juror peremptorily or for cause. Here, Hoffman's...