State v. Olmstead, Cr. N

• Decision Date: 19 November 1976
• Docket Number: Cr. N
• Citation: 246 N.W.2d 888
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Vernon Ray OLMSTEAD, Defendant and Appellant. o. 553.
• Court: North Dakota Supreme Court

Page 888

246 N.W.2d 888

STATE of North Dakota, Plaintiff and Appellee, v. Vernon Ray OLMSTEAD, Defendant and Appellant.

Cr. No. 553.

Supreme Court of North Dakota.

Nov. 19, 1976.

Syllabus by the Court

1. Competent and substantial evidence, although controverted, is sufficient to support a conviction upon trial by a court.

2. Uncorroborated testimony of a rape victim as to identification of a rapist is sufficient to support a conviction.

3. Truth can better be determined in the confrontation of the testimony of witnesses appearing in person than from a transcript of the testimony.

4. Under the peculiar facts of the case, it was error to deny a motion to reinstate a motion for new trial.

Thomas B. Jelliff, State's Atty., Grand Forks, for plaintiff and appellee State of North Dakota.

David Kessler, Grand Forks, for defendant and appellant.

VOGEL, Justice.

This case presented the trial judge with a direct conflict between the uncorroborated identification of the defendant as her assailant by a rape victim, and an alibi defense supported by five witnesses. The trial judge believed the victim and found the defendant guilty, in a trial without a jury. The defendant appealed, asserting that the evidence as a matter of law was insufficient to sustain the conviction. We affirm the conviction, but find error in the court's refusal to permit the reinstatement of a withdrawn motion for new trial, and we remand for consideration of that motion.

An earlier appeal, on a motion to release pending this appeal, is reported at 242 N.W.2d 644 (N.D.1976).

The rape victim testified that she was raped in a vacant lot by a young man then unknown to her, on June 27, 1975. She was with him for half an hour, conversed with him, and saw, by the light of the moon, his face, the knife he used to threaten her, and the color of his clothes and boots. About two weeks later, while in a restaurant within a few blocks of the place where the rape occurred, she saw the defendant working in the kitchen and identified him as the rapist. At the trial, her testimony was the only evidence identifying the defendant. A police drawing based upon her description before she identified the defendant shows some similarity to him. A search of the apartment of the defendant and his wife uncovered a steak knife similar to the one described by the victim, but no clothing closely matching her description of what the rapist wore.

The defendant's alibi defense was supported by his wife and by five persons who testified that they had attended a movie and prayer meeting at the Grand Forks Mission with the defendant and his wife the evening of June 27. The meeting lasted until after midnight. All five testified that the defendant and his wife planned to go to a local carnival to hand out religious tracts, and two of the five testified that they accompanied the defendant and his wife to the carnival and that the four 'witnessed' there until after 1 a.m. The rape was positively shown to have occurred between midnight and 1 a.m. When the trial judge announced his decision, he pointed out certain inconsistencies between the testimony of the alibi witnesses, such as a difference in their testimony as to the gate they used to enter the carnival grounds. He deduced that the alibi witnesses were mistaken in their reconstruction of events. (Since the first complaint came about two weeks after the rape, the witnesses had to reconstruct their movements over a period of days or weeks in order to determine what they had been doing on the evening of June 27.)

On the other hand, there were inconsistencies and incongruities in the prosecution's case. For example, the victim testified that the rapist first demanded money from her. Both of the Olmsteads worked, they had no children, and they asserted they were in no particular need of money. She also indicated that the rapist probably was the driver of a yellow Volkswagen which had followed her at a slow speed as she walked along the sidewalk a short time before the rape. The Olmsteads' car was a green Dodge station wagon. The rapist also told the victim that he was wanted by the police. Olmstead had no criminal record prior to the present conviction.

On the question of credibility of witnesses, reading a cold transcript is no substitute for hearing and observing witnesses as they testify. Tones of voice, hesitations, confusion, surprise, and other telltale indications of mental state convey to trial judges and jurors much that is lost to appellate judges. If we were to judge from the cold print, we might decide many cases differently than trial judges do, and this case might be one of them. But, if we decided differently, we would have no assurance that ours was the better decision. We are reluctant to reverse factual findings of juries or trial judges. Appellate courts have stated in many ways, in both civil and criminal cases, their determination to give respect to the findings of trial judges and juries. Sometimes they say they will not reverse if there is substantial evidence to support the verdict (Kresel v. Giese, 231 N.W.2d 780, 791 (N.D.1975)); sometimes they say they will not substitute their judgment for that of the trial court or jury (State v. Champagne, 198 N.W.2d 218, 226 (N.D.1972)); sometimes they speak of viewing the evidence in the light most favorable to the judgment (State v. Neset, 216 N.W.2d 285, 290 (N.D.1974)); and sometimes they speak of their great reliance on the findings of the lower court (In re Estate of Elmer, 210 N.W.2d 815, 819 (N.D.1973)).

In criminal cases we have repeatedly held that 'at the appellate level we do not substitute our judgment for that of the jury or trial court where the evidence is conflicting, if one of the conflicting inferences reasonably tends to prove guilt and fairly...