State v. Moellar, 12610

• Decision Date: 11 July 1979
• Docket Number: No. 12610,12610
• Citation: 281 N.W.2d 271
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Randall Eugene MOELLAR, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 271

281 N.W.2d 271

STATE of South Dakota, Plaintiff and Respondent, v. Randall Eugene MOELLAR, Defendant and Appellant.

No. 12610.

Supreme Court of South Dakota.

Argued May 10, 1979.

Decided July 11, 1979.

John P. Guhin, Asst. Atty. Gen., Pierre, for plaintiff and respondent; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Richard F. Staley, Sioux Falls, for defendant and appellant.

FOSHEIM, Justice.

The defendant, Randall Moellar, was convicted of first-degree burglary. At trial, he moved for a directed verdict, both at the end of the state's case and again at the conclusion of all the evidence. Both motions were denied, as was a motion for a judgment of acquittal. The issue on appeal is whether there was sufficient evidence to allow the jury to decide the question of guilt. We affirm.

Walter Sichmeller owned a trailer house on Burnside Avenue in Sioux Falls which he rented to Rhodie Scott and Tom Roland. In the first part of March, 1978, the tenants reported damage to the trailer. The owner found both doors damaged and the inside ransacked. Rhodie Scott testified that he and Roland were absent at the time of the break-in. When they returned they found the damage and determined that several items were gone. Scott was missing a Motorola television and a backpack with a metal frame. The backpack contained two fishing reels and an attached sleeping bag. Roland was missing a Westinghouse television set.

Paul Schwartz testified that at about 9:00 p. m. on a day in the first part of March, 1978, he and the defendant and Mike Tousaint went to the Nashville Club in Sioux Falls to drink liquor. After staying at the Nashville Club for a considerable period, he and the defendant went to the trailer house occupied by Rhodie Scott and Tom Roland. Tousaint did not go with them. Schwartz was driving. The defendant went to sleep in the back seat but woke up when they arrived. They both went to the trailer house, and Schwartz pounded on the door. When no one answered, the defendant kicked in an outside door, and Schwartz reached in and opened an inside door. Schwartz further testified that he and the defendant then ransacked the house, and put two television sets and a backpack in the trunk of the car. They then drove to the Tom Kuhnert residence in Valley Springs, where defendant resided in March, 1978. Schwartz stated that he took one of the television sets home with him, leaving the other one at Kuhnert's. At trial, he identified certain exhibits as the television sets in question.

The basic question on appeal is whether the evidence introduced to corroborate the testimony of Schwartz satisfies SDCL 23-44-10, which provides:

A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense, or the circumstances thereof.

This statute does not require that corroborative evidence be produced which, by itself, would sustain a conviction. State v. Rauscher, 267 N.W.2d 582 (S.D.1978); State v. Stecker, 79 S.D. 79, 108 N.W.2d 47 (1961); State v. Odle, 45 S.D. 575, 189 N.W. 515 (1922); State v. Hicks, 6 S.D. 325, 60 N.W. 66 (1894). The rule is satisfied if such evidence in some substantial degree tends to 1) affirm the truth of the testimony of the accomplice, and 2) establish the guilt of the defendant. State v. Drapeau, 45 S.D. 507, 189 N.W. 305 (1922); State v. Levers, 12 S.D. 265, 81 N.W. 294 (1899).

The corroborating evidence, beyond commission of the crime itself, will be discussed in two parts. The first segment associates the defendant with the accomplice Schwartz at or about the time the crime was committed. The second part relates to defendant's possession of the stolen property.

Tom Kuhnert testified that he remembered an occasion when Paul Schwartz, Mike Tousaint, and the defendant went to Sioux Falls for an evening of drinking in a bar where Peggy Davis was working. ¹ Paul Schwartz was driving when they left the Kuhnert-Moellar residence.

Peggy Davis and Vicki McGreen testified that during an evening in March, 1978, Schwartz, Tousaint, and the defendant spent several hours drinking together at the Nashville Club in Sioux Falls where Ms. Davis and Ms. McGreen were employed as barmaids. Peggy Davis said all three arrived together about 9:30 p. m. and that Tousaint was the first to leave. She further testified that when Schwartz and the defendant left, Schwartz was driving. This supports the testimony of Schwartz that he drove from the Nashville Club to the trailer house.

We have long recognized the general rule that the association of a defendant and an accomplice in the neighborhood where the crime was committed may sufficiently connect the defendant with the crime to furnish the necessary corroboration of the accomplice. State v. Drapeau, supra. ² The record does not reveal the proximity of the Nashville Club to the burglarized trailer. The testimony of Kuhnert, Davis and McGreen does, however, show a close association between the defendant and the accomplice in Sioux Falls at about the time of the burglary. That evidence is consistent with the sequence of events related by Schwartz.

With respect to the defendant's possession of the fruits of the burglary, the testimony of two witnesses supports the Schwartz version. Tom Kuhnert testified that the defendant and Paul Schwartz were at his residence when he came home about 2:00 a. m. following the drinking party. He then observed "Exhibit 10," one of the stolen television sets, and a backpack in the kitchen. He later saw the television set in a creek bottom about fifty to one hundred yards from the house where both he and the defendant lived. (One of the stolen television sets was recovered...