State v. McNamara

• Decision Date: 07 September 1982
• Docket Number: No. 13625,13625
• Citation: 325 N.W.2d 288
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Jan McNAMARA, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 288

325 N.W.2d 288

STATE of South Dakota, Plaintiff and Appellee, v. Jan McNAMARA, Defendant and Appellant.

No. 13625.

Supreme Court of South Dakota.

Considered on Briefs Sept. 7, 1982.

Decided Oct. 20, 1982.

Mikal Hanson, Asst.Atty.Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty.Gen., Pierre, on brief.

Catherine G. Ortner, Hot Springs, for defendant and appellant.

DUNN, Justice.

This is an appeal from a conviction of grand theft of livestock under SDCL 22-30A-17. ¹ We affirm.

Jan McNamara (appellant) was employed by the Fall River Feedlot (feedlot), a commercial cattle feeding operation, as an assistant to the feedlot yard foreman. Appellant's duties at the feedlot included riding pens, doctoring and moving cattle, taking care of horses, and, in the event heifers in the feedlot had calves, selling those calves.

On or about August 30, 1980, appellant had a discussion with the lot manager at the feedlot concerning the possibility of a purchase of calves for appellant's mother. The lot manager testified that he told appellant a purchase could be arranged so long as they knew which cattle were involved and what pens they were out of so they could establish a price.

The following day, August 31, 1980, appellant sold five calves to Rick Roberts, a Nebraska rancher. Roberts originally made out a check payable to the feedlot for the full amount of $325. Thereafter, at appellant's direction, Roberts destroyed the check and made out two checks, one to the feedlot for $135, and the other for $190, with the payee slot left blank. Supposedly, separate checks were required because the calves came from separate pens. Appellant subsequently filled in his own name as payee on the second check and cashed it.

On September 26, 1980, Roberts received a phone call from appellant who told him the feedlot had objected to the way he sold the calves. To correct the situation appellant stated he was having the feedlot take the value of the calves out of his paycheck. This required appellant to return to Roberts the $135 check payable to the feedlot, and it required Roberts to make out a new check in the amount of $90 payable to appellant. Appellant stated his status as an employee allowed him to purchase the calves at a cheaper rate and he would pass along the savings to Roberts.

Several days later, Roberts received the $135 check in the mail along with a note and a self-addressed stamped envelope from appellant. Later that same day, Roberts received his bank statement and saw that appellant had filled in his own name on the $190 check and had cashed it. Roberts became suspicious and called the feedlot general manager, who investigated the matter. The inquiry revealed no record of the sale and no knowledge of the sale by the feedlot management. Thereafter, appellant was charged with five counts of grand theft of livestock. That charge was later amended to one count of grand theft of livestock.

At trial, appellant claimed he had purchased three of the calves from the feedlot for his mother. Appellant testified he received authorization to purchase three calves for $190 from the lot manager during their August 30, 1980, conversation. Appellant then claimed he resold the three calves to Roberts for $190 and he believed the feedlot was going to take the sale price of those calves out of his paycheck. As to the other two calves, appellant claimed he forgot to turn in the $135 check and upon discovering it he decided to embezzle it. Appellant claimed he never intended to steal livestock and thus he should not be guilty of grand theft. The jury found appellant guilty of grand theft.

Appellant contends the trial court erred in failing to charge the jury with the lesser included offenses of petty theft for the $190 check and attempted petty theft for the $135 check. We do not agree.

In State v. Oien, 302 N.W.2d 807 (S.D.1981), this court stated that there are two tests for determining whether an offense is "necessarily included" in a greater offense, one legal and the other factual. Both tests must be satisfied before a "necessarily included" offense instruction is given. To meet the legal test, the trial court must be satisfied that:

(1) the elements of the included offense must be fewer in number than the elements of the greater offense, (2) the penalty for the included offense must be less than the greater charged offense, and (3) the two offenses must contain common elements so that the included offense must be such that the greater offense cannot be committed without also committing the lesser.

Id. at 809.

The third component is not met in this case. This component requires that the two offenses contain common elements, or, in other words, for the offense to be a necessarily included offense, it must be such that the greater offense cannot be committed without committing the lesser. While petty theft is limited to those cases where the property taken is valued at less than $200, value is not a consideration in grand theft of livestock. Thus, the greater offense of grand theft of livestock can be committed without committing the lesser offense of petty theft. We conclude the trial court did not commit reversible error in denying appellant's requested jury instructions on petty theft and attempted petty theft. ²

Appellant next contends the trial court erred when it denied appellant's motion for mistrial. The motion for mistrial was based on statements made by the prosecutor in his closing argument. We find no support for appellant's contention in the record.

Since we have nothing other than appellant's paraphrased summary of the statements to review, we cannot conclude a clear abuse of discretion took place here. Counsel for both parties waived the recording and transcribing of the closing argument, so we cannot independently assess the conduct of the prosecutor. Since appellant's motion for a mistrial was denied, we have no choice but to conclude the trial court's assessment immediately following the alleged misconduct was correct. This, coupled with counsel's failure to request a specific instruction regarding this alleged improper statement, State v. Kidd, 286 N.W.2d 120 (S.D.1979) (Henderson, J., concurring), leads us to conclude it was not reversible error for the trial court to deny the motion to dismiss.

Appellant contends the trial court erred in denying his motion for mistrial when the jury initially concluded it could not reach a unanimous decision. Appellant in effect argues that the trial court's instruction to "[p]lease continue your considerations of facts and law in an effort to arrive at a verdict" coerced the jury into reaching a unanimous decision. We cannot agree.

We believe the length of time a jury is to deliberate is within the wide latitude of discretion vested in the trial court. Error is only committed when the verdict is coerced by the trial court. Karell v. West, 616 S.W.2d 692 (Tex.Civ.App.1981) aff'd 628 S.W.2d 48 (Tex.1982). We do not find the trial court's charge to continue deliberating after the jury reported it could not reach a unanimous decision invaded the province of the jury, amounted to coercion, or denied the appellant a fair trial. The trial court's action did not rise to the type of coercion discussed in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896) or in State v. Ferguson, 84 S.D. 605, 175 N.W.2d 57 (1970). ³

Appellant contends the trial court erred in denying him the opportunity to call four...