State v. Norton
| Citation | 431 A.2d 1244,139 Vt. 532 |
| Decision Date | 15 May 1981 |
| Docket Number | No. 165-80,165-80 |
| Court | Vermont Supreme Court |
| Parties | STATE of Vermont v. Arnold J. NORTON, Sr. |
James P. Mongeon, Rutland County State's Atty., Rutland, for plaintiff.
Martin Nitka, Ludlow, for defendant.
Before BARNEY, C. J., and LARROW, BILLINGS, HILL and UNDERWOOD, JJ.
A jury found the defendant guilty of grand larceny under 13 V.S.A. § 2501. He appeals.
Taking the evidence most favorable to the State, the defendant received a loan check from the bank's loan officer for $750, then went to the teller area to cash the check. The teller misread the check to call for $7,500 and went to the vault to get extra cash. She came back to the counter, counted the money in view of the defendant and placed the money on the counter in a pile of two $2000 bundles, three $1,000 bundles and five $100 bills. The defendant took the money and left the bank. The teller subsequently discovered her error. An audit of her window revealed that she was $6,750 short.
The defendant makes two claims. First, he contends that the lower court erred in failing to order, on its own motion, judgment of acquittal for insufficiency of evidence. Second, he argues that the lower court's instruction on intent was incorrect.
The defendant asserts that the evidence was insufficient to show the key element in larceny, an intent to take the property from the owner. The defendant claims that the State did not fulfill its obligation to prove his intent. He never made a V.R.Cr.P. 29(a) motion for directed verdict, however, either at the end of the State's case or at the end of the trial. This Court has stated that, "(W)here the claim of insufficiency of the evidence to support the charge is not presented to the lower court at the end of the trial by a motion under the rule for judgment of acquittal, the issue is not preserved for appellate review." State v. Winters, 136 Vt. 469, 470, 392 A.2d 429, 430 (1978). This is true even when the defendant moves for acquittal after the State's case, but fails to renew the motion at the end of the defendant's case. Id.; State v. Bressette, 136 Vt. 315, 316-17, 388 A.2d 395, 396 (1978). Since in this case the defendant never made the motion at all, he has not preserved the issue of the sufficiency of the evidence for appeal.
Nevertheless, the defendant contends that the court should have moved for acquittal on its own motion, invoking the "plain error" rule. V.R.Cr.P. 29(a) provides, "The court ... of its own motion shall order the entry of judgment of acquittal ... if the evidence is insufficient to sustain a conviction ...." A court should move for acquittal only when the record reveals that the evidence is so tenuous that a conviction would be unconscionable. See State v. Welch, 136 Vt. 442, 394 A.2d 1115 (1978); United States v. Bullock, 551 F.2d 1377, 1385 (5th Cir. 1977).
The substantive issue in this case is whether the defendant had the requisite intent to take the money when he...
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State v. Laflam
...motion only when the record reveals that the evidence is so thin that a conviction would be unconscionable. State v. Norton, 139 Vt. 532, 534, 431 A.2d 1244, 1245 (1981) (per curiam), overruled on other grounds by State v. Brooks, 163 Vt. 245, 658 A.2d 22 (1995); see V.R.Cr.P. 29(a) (provid......
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State v. Dion
...a motion in the trial court for judgment of acquittal under V.R.Cr.P. 29(a) at the close of the evidence. See State v. Norton, 139 Vt. 532, 534, 431 A.2d 1244, 1245 (1981). Here, defendant failed to move for acquittal either at the close of the State's case or at the close of all of the As ......
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State v. Erwin
...only when the record reveals that the evidence is so tenuous that a conviction would be unconscionable.” State v. Norton, 139 Vt. 532, 534, 431 A.2d 1244, 1245 (1981), overruled on other grounds by State v. Brooks, 163 Vt. 245, 658 A.2d 22 (1995). These standards are clearly not satisfied h......
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State v. Penn, 2003 VT 110 (Vt. 12/11/2003)
...motion only when "the record reveals that the evidence is so tenuous that a conviction would be unconscionable." State v. Norton, 139 Vt. 532, 534, 431 A.2d 1244, 1245 (1981), overruled on other grounds by State v. Brooks, 163 Vt. 245, 658 A.2d 22 (1995). A conviction is proper when the evi......