State v. McMorrow, Cr. N

• Decision Date: 28 November 1979
• Docket Number: Cr. N
• Citation: 286 N.W.2d 284
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Patrick McMORROW, Defendant and Appellant. o. 691.
• Court: North Dakota Supreme Court

Page 284

286 N.W.2d 284

STATE of North Dakota, Plaintiff and Appellee, v. Patrick McMORROW, Defendant and Appellant.

Cr. No. 691.

Supreme Court of North Dakota.

Nov. 28, 1979.

Larry E. Stern, Asst. State's Atty., Fargo, for plaintiff and appellee State of North Dakota.

Robert A. Ramlo, of Ramlo, Anderson & Associates, Fargo, for defendant and appellant.

VANDE WALLE, Justice.

After a jury trial in the Cass County Court of Increased Jurisdiction, the defendant, Patrick McMorrow, was convicted of the crime of criminal mischief in violation of Section 12.1-21-05, N.D.C.C. ¹ He appeals his conviction and the order denying his motion for a new trial. We reverse and remand.

In September 1978 the State's Attorney of Cass County approved the filing of a complaint in the County Court of Increased Jurisdiction alleging that McMorrow "willfully (damaged) tangible property of another, to-wit: destroying three windows at the Overvold Motor Company, a value of approximately $706.00." ² McMorrow entered a plea of not guilty and demanded a jury trial. After trial, the jury returned a verdict of guilty.

Prior to August 1978, McMorrow left a vehicle at Overvold Motor Company (hereinafter "Overvold") for servicing and, when he returned for the vehicle, it was missing. Although the record is not clear, it appears that there were several contacts between Overvold and McMorrow relative to the vehicle and that McMorrow believed Overvold should make restitution to him for the loss of the vehicle. On August 16, 1978, McMorrow was at Overvold and spoke with Don Cobler, who at that time was the business manager for Overvold. The discussion between Cobler and McMorrow concerned the missing vehicle and McMorrow's demand for $10,000 which he wanted Cobler to get from Cliff Overvold, one of the owners of Overvold Motor Company. The discussion also involved some showroom windows which had previously been broken at Overvold and some silver balls which McMorrow stated he had found on the ground outside the broken windows. Cobler also testified McMorrow had told him that he, Cobler, should inform his boss that if he did not pay the $10,000 he probably would lose some more windows. Cobler further testified that when McMorrow left Cobler's office McMorrow started counting the windows in the showroom.

On the evening of September 3, 1978, Don Herout, used-car sales manager for Overvold, received a telephone call from a person who identified himself as McMorrow and who told Herout to tell Cliff Overvold that there were more windows broken at Overvold. According to Herout, he had not previously met McMorrow. Herout asked the caller three or four times to identify himself. After receiving the call, Herout telephoned the police to inform them of the call. Two police officers proceeded to Overvold where they found three broken windows and also found two silver ball bearings outside the windows which appeared to fit the holes made in the windows. Herout subsequently filed a complaint charging McMorrow with criminal mischief.

Following the presentation of the State's evidence, McMorrow moved for a judgment of acquittal and argued that, pursuant to Rule 29 of the North Dakota Rules of Criminal Procedure, the State's evidence was insufficient to sustain the burden of proof required. That motion was denied, and witnesses for the defense were called to testify. McMorrow's mother and sister testified that he had been with them during the entire evening of September 3, 1978, and did not use the telephone during that time. McMorrow also took the stand in his own defense and testified that he had not made the telephone call and had not broken the windows at Overvold. After both sides had rested, McMorrow renewed his motion for judgment of acquittal and the motion again was denied. Following the verdict, McMorrow moved for a new trial pursuant to Rule 33, N.D.R.Crim.P., setting forth six grounds, four of which concern the sufficiency of the evidence. The motion was denied.

McMorrow appeals "from the final judgment of conviction of Criminal Mischief . . . and from the order denying the Motion for New Trial . . ." In written and oral argument to this court, McMorrow's counsel ³ presented two issues for review:

1. Did the trial court err in failing to grant a motion for acquittal due to insufficient evidence?

2. Was there sufficient evidence to submit the case to the jury, and should the trial judge have granted an acquittal or a new trial as a matter of law?

Although the notice of appeal stated that the appeal was from the judgment of conviction and from the denial of the motion for new trial but did not include the denial of the motion for acquittal this court has previously held that an appeal from the judgment of conviction authorizes us to review the sufficiency of the evidence. See State v. Neset, 216 N.W.2d 285 (N.D.1974). ⁴

McMorrow relies upon Rule 29(a) of the North Dakota Rules of Criminal Procedure ⁵ in arguing that the trial court erred in refusing to grant a motion for acquittal before the case went to the jury. The State introduced circumstantial evidence as to the motive for the crime. The State introduced no evidence (except for Herout's testimony as to the telephone call) which connected McMorrow with the breaking of the windows at Overvold. A verdict based upon circumstantial evidence carries the same presumption of correctness as other verdicts and will not be disturbed on appeal unless the verdict is unwarranted. See, e. g., State v. Rieger, 281 N.W.2d 252 (N.D.1979); State v. Allen, 237 N.W.2d 154 (N.D.1975). Circumstantial evidence alone may justify a conviction, provided it is of such probative force as to enable the trier of fact to say that the defendant is guilty beyond a reasonable doubt. State v. Erickson, 231 N.W.2d 758 (N.D.1975). At the trial court 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 to merely 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. Allen, supra.

We have carefully reviewed the record, including the transcript of testimony at trial. There is sufficient evidence for the jury to conclude that McMorrow had been involved in a dispute with Overvold involving a vehicle he had left there for servicing which apparently was not returned to him. There is sufficient evidence for the jury to conclude that as a result of that dispute McMorrow believed Overvold owed him money and that he had initiated several contacts with Overvold seeking payment. There is sufficient evidence for the jury to conclude that McMorrow had noticed broken windows at Overvold on August 16, 1978, when he went to that place of business to see Cliff Overvold, one of the owners, but talked to Cobler because Cliff Overvold was not available. There may also be sufficient evidence for the jury to conclude that McMorrow's statements to Cobler at that time constituted some form of threat that if Cliff Overvold did not pay McMorrow some money for the loss of McMorrow's vehicle, McMorrow would break some of Overvold's windows. Thus the evidence may well establish a motive. The circumstantial evidence, however, is not sufficient for us to determine that the jury could draw an inference reasonably tending to prove guilt which would fairly warrant a conviction.

The evidence linking McMorrow with the broken windows at Overvold on September 3, 1978, is based solely on a telephone call to Herout in which the caller informed him there were some windows broken at Overvold. The caller identified himself as McMorrow; but Herout had never met McMorrow prior to that time and thus there is no testimony of voice identification or any other evidence which establishes the identity of the caller. ⁶ The only evidence is Herout's testimony that the caller identified himself as McMorrow. ⁷

Because the standard for review of a jury verdict requires us to merely 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. Allen, supra ), we are reluctant to overturn that verdict. However, in this instance the evidence connecting McMorrow with the commission of the crime is so tenuous that we conclude it is not sufficient to establish guilt. In State v. Holy Bull, 238 N.W.2d 52 (N.D.1975), this court concluded that where the evidence did not in any manner connect the defendant with the crime and permitted mere speculation that the defendant may have been in the general vicinity of the crime, the evidence was totally insufficient to establish guilt beyond a reasonable doubt, not because it was circumstantial evidence but because the evidence did not establish guilt as required by the Constitution and the appropriate rules of law.

Were we to affirm a criminal conviction based solely on evidence consisting of testimony of a witness who states he received a telephone call from a person he had never met but who identified himself as the defendant we would be establishing a dangerous precedent. That precedent could very well result in innocent victims' being "framed." ⁸

Although McMorrow has argued that the trial court erred in refusing to direct a verdict of acquittal at the end of the State's evidence, as well as at the completion of the evidence presented by the defense and before the matter went to the jury, he has also argued as error the trial court's refusal to grant his motion for a new trial. McMorrow has made no argument that a new trial would place him in double jeopardy. In Holy Bull, relying upon Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335 (1950), this court concluded that where an accused successfully obtained a review of conviction by having assigned...