State v. Kroeplin

• Decision Date: 12 May 1978
• Docket Number: Cr. N
• Citation: 266 N.W.2d 537
• Court: North Dakota Supreme Court
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Cora KROEPLIN, Defendant and Appellant. o. 617.

Page 537

266 N.W.2d 537

STATE of North Dakota, Plaintiff and Appellee, v. Cora KROEPLIN, Defendant and Appellant.

Cr. No. 617.

Supreme Court of North Dakota.

May 12, 1978.

Mack, Moosbrugger, Leonard, Ohlsen & Dvorak, Grand Forks, for defendant and appellant.

Mervin D. Nordeng, State's Atty., Fargo, for plaintiff and appellee.

SAND, Justice.

The defendant, Cora Kroeplin, was found guilty by a Cass County district court jury on 27 June 1977 of the felony offense of reckless endangerment under circumstances manifesting an extreme indifference to human life, a violation of § 12.1-17-03, North Dakota Century Code.

She was charged specifically with firing "several shots from a gun into the Buffalo Repair Shop where Gary Kroeplin (her son), Melvin Kroeplin (her husband), and Lori Hill (their bookkeeper) were located."

The defendant was found indigent, whereupon the court appointed counsel for her. She entered a plea of not guilty. Following a jury trial, she was found guilty and sentenced to eighteen months at hard labor in the North Dakota State Penitentiary. A judgment of conviction was issued and filed.

The defendant appealed the judgment of conviction to this court, contending that the trial court committed reversible error in admitting into evidence a .22 rifle, and that she was denied the effective assistance of counsel.

The original court-appointed counsel filed the notice of appeal, but by stipulation between counsel, the original counsel was replaced by current counsel, who proceeded with the present appeal.

We consider first defendant's contention that the trial court erred in admitting into evidence a .22 rifle on the alleged grounds that the prosecutor failed to lay a proper foundation for it and that there was a break in the chain of custody and improper authentication and identification of the rifle.

Defendant's counsel's objection to the introduction of the .22 rifle consisted of the following statement to the court:

"Lack of foundation. There is no showing of the custody of the rifle from the time it was I don't know where it was taken from, Your Honor, after the incident."

This objection was overruled and the .22 rifle was received into evidence.

The testimony of the defendant's husband identified the gun (.22 rifle) as the one he purchased for his son, Randy, as the gun taken from the Kroeplin home by deputy Sheriff Franck. Randy identified it as his and said that he kept it in the corner of his room. The testimony of Gary Kroeplin identified it as being similar to or the same gun that his mother used in the shooting incident.

The prosecutor, through the witnesses, traced the chain of custody of the .22 rifle from the date an officer of the Cass County sheriff's department removed it from the Kroeplin home back to the date it was purchased by Mr. Kroeplin for his son from a Coast-to-Coast store in Casselton.

Before resolving the issue of the admissibility of the gun in this case, we observe that the evidence, without the admission of the gun, would have been sufficient and competent for the jury to find the defendant guilty beyond a reasonable doubt of the offense charged.

Eyewitness testimony established that defendant, using a rifle, shot into the door of the Buffalo Repair Shop in which several people were located at the time. This establishes a violation of § 12.1-17-03, NDCC, set out later herein. Therefore, the identification or the production of the specific rifle used was not essential to prove the charge against the defendant. The eyewitness testimony alone was sufficient. See State v. Davis, 229 N.W.2d 249, 251 (Iowa 1975).

The offense of reckless endangerment is set out in § 12.1-17-03, NDCC:

"A person is guilty of an offense if he creates a substantial risk of serious bodily injury or death to another. The offense is a class C felony if the circumstances manifest his extreme indifference to the value of human life. Otherwise it is a class A misdemeanor. There is risk within the meaning of this section if the potential for harm exists, whether or not a particular person's safety is actually jeopardized."

The provisions of the statute are clear. Proof of possession of the weapon or of a certain gun is not an essential element of the offense charged.

Nevertheless, we conclude that the trial court did not commit error in admitting the gun into evidence. The evidence (gun) in this case was not too remote or conjectural. The total evidence justified a reasonable inference that the defendant and the gun were linked together and that the defendant used it in the commission of her offense. See State v. Pieschke, 262 N.W.2d 40, 45 (S.D.1978); State v. Pickering, 217 N.W.2d 877 (S.D.1974).

The mere fact that the prosecution presented more evidence than was needed does not constitute error.

In this case the gun has some relevancy to the issue and is therefore admissible. Rule 401, North Dakota Rules of Evidence; State v. Hendrickson, 240 N.W.2d 846 (N.D.1976).

Defendant's counsel also argued that there was a break in the chain of custody of the gun because the State did not establish which officer brought the gun to the deputy sheriff's office and the time at which it was brought to the office. It was contended that there was a break in the chain of custody of the .22 rifle during the time it was in the possession of the sheriff's department.

Melvin Kroeplin testified that deputy sheriff Franck removed the gun from the Kroeplin home. Lt. Larson, a deputy sheriff, testified that the following morning the gun was brought to his office by a jailer, although he could not identify which one, or the time when it was brought to his office. Lt. Larson also testified that the gun had a green identification tag on it when it was brought to his office and that it was later taken from his office and placed in the sheriff's evidence room, where it was kept under lock except for the time it was sent to the FBI laboratory for testing. Lt. Larson testified that while the gun was in the sheriff's evidence room deputy sheriff Franck, at his request, put a yellow tag on it. Lt. Larson also testified that he identified the gun by the tags affixed to it, as the one taken from the Kroeplin home. He further testified that the gun's serial number was on the tag.

Identity and authentication are primary concerns in the admission of exhibits into evidence. Rule 901, NDREv, in substance provides that the admissibility question is satisfied by evidence which is sufficient to support a finding that the matter in question is what its proponents claim and that, generally, the testimony of a witness with knowledge that a matter is what it is claimed to be is sufficient.

In the admission of real evidence, impervious to change, such a gun which is readily identifiable by its serial number and other characteristics, and which has been identified through testimony as being similar to the gun in question, a showing of a continuous chain of possession is not as important as it is with reference to items or objects which can be easily diluted, altered or even substituted. McCormick on Evidence (2d ed.) Demonstrative Evidence, Ch. 21, § 212, p. 527. See also, American Reciprocal Insurers v. Bessonette, 241 Or. 500, 405 P.2d 529 (1965); State v. Coleman, 441 S.W.2d 46 (Mo.1969); Walker v. Firestone Tire & Rubber Co., 412 F.2d 60 (2d Cir. 1969).

In State v. Motsko, 261 N.W.2d 860, 868 (N.D.1978), we noted appellant's chain of custody argument that there was no showing of how the pipe, the weapon in question, was transported from the car to the spot where it was found near the house. However, we said that this went to the weight of the evidence, not its admissibility. This also applies here.

We agree with the reasoning of the Iowa Supreme Court in State v. Limerick, 169 N.W.2d 538, 541 (Iowa 1969):

"In passing on the admissibility of exhibits where a break in the chain of custody is shown, we have ordinarily held the failure to account for undisturbed possession goes to the weight of the evidence rather than its admissibility. State v. Shilinsky, 248 Iowa 596, 599, 81 N.W.2d 444; State v. Ford, 259 Iowa 744, 748, 749, 145 N.W.2d 638. We have consistently applied this rule and held the evidence properly admitted as within the discretion of the trial court where the exhibits consisted of solid objects, not easily susceptible to undetected alteration, such as money, State v. Shilinsky, supra; hammer and gun, State v. Ford, supra; a gun, State v. Johnson, Iowa, 162 N.W.2d 453; clothing and a body, State v. Parker, 261 Iowa 88, 151 N.W.2d 505, 508; matches and glasses, State v. Post, 255 Iowa 573, 123 N.W.2d 11. Where the possibility of alteration of an exhibit is slight, the materiality of the alteration remote, and the exhibit has otherwise been properly identified we have dispensed with a showing of continuous custody."

See also, State v. Ash, 244 N.W.2d 812, 816 (Iowa 1976).

At the very least, the gun constituted circumstantial evidence corroborating the testimony of other witnesses.

In State v. Emmil, 172 N.W.2d 589, 591 (N.D.1969), we said:

"All of this is, of course, circumstantial evidence. The law does not require that every fact going to make up a case be proved by eyewitnesses, or by direct evidence. In criminal as well as in civil cases, issues may, generally speaking, be established by circumstantial evidence. 30 Am.Jur.2d, Evidence Sec. 1091, p. 248.

"This court has held that there is no legal distinction, so far as weight and effect to be given is concerned, between circumstantial evidence and direct evidence. State v. Foster, 14 N.D. 561, 105 N.W. 938 (1905)."

On the same subject, in In re J. Z., 190 N.W.2d 27, 35 (N.D.1971), we observed:

"The appellants' counsel contends that the evidence in this case lacks probative force because it is largely, if not entirely, circumstantial. But that is not the law in this State. Proof of the elements of an action or proceedings may consist entirely of...