State v. Petree

• Decision Date: 04 February 1983
• Docket Number: No. 18015,18015
• Citation: 659 P.2d 443
• Parties: STATE of Utah, Plaintiff and Respondent, v. John Wilson PETREE, Defendant and Appellant
• Court: Utah Supreme Court

Page 443

659 P.2d 443

STATE of Utah, Plaintiff and Respondent, v. John Wilson PETREE, Defendant and Appellant.

No. 18015.

Supreme Court of Utah

Feb. 4, 1983.

Scott Jay Thorley, Patrick H. Fenton, Cedar City, for defendant and appellant.

David L. Wilkinson, Atty. Gen., Salt Lake City, for plaintiff and respondent.

OAKS, Justice:

A jury convicted defendant of second degree murder of a fifteen-year-old girl who was his high school classmate. He was sentenced to five years to life, and entered upon service of his sentence. On this appeal, he urges that the evidence was insufficient to show that the crime was committed or that he committed it. The prosecution's evidence was essentially undisputed. The parties disagree on the inferences to be drawn from it. The facts are unique.

On July 2, 1980, a man who was otherwise unrelated to the events of this case uncovered a human skeleton by a row of trees along a fence line in the large backyard behind his rented home in Cedar City. The skeleton was about 30 inches below the surface of the ground in an old carrot pit beneath a wooden trap door covered by a mound of earth. The police, who were notified immediately, concluded from the position of the skeleton that the body had been placed in the pit on its chest with the hips bent forward and the legs and arms folded over the back of the body. Along with the skeleton, they discovered a ring, a jacket, a sweater with a pin attached, blue jeans, female underclothing, and a pair of boxer shorts. The medical examiner concluded that the skeleton was that of a female between 14 and 17 years of age, approximately 5 feet 2 inches in height (plus or minus 2 inches). The left forearm had a thickened area indicating a healed fracture. The teeth contained no dental work. Neither the time nor the cause of death could be determined from the skeletal remains.

Phyllis Ady, age 15, was reported missing at 1:00 a.m. on December 13, 1977, just over two and one-half years before the skeleton was discovered. At that time, she was residing with her aunt and uncle, the Westmans, who lived approximately one block from where the body was found. Mrs. Westman and Betty Ady, the victim's mother, identified the ring, jacket, sweater, and pin found with the skeleton as Phyllis's. On the basis of that identification and their testimony that Phyllis was 15 years of age, 5 feet 4 inches in height, had no dental work, but had earlier suffered a fracture of the left forearm that had healed, the jury had ample evidence to conclude that the skeletal remains were those of Phyllis Ady.

The evidence summarized above also met the requirement of corpus delicti, which, we have said, "requires only that the State present evidence that the injury specified in the crime occurred, and that such injury was caused by someone's criminal conduct." State v. Knoefler, Utah, 563 P.2d 175, 176 (1977). Accord : State v. Kimbel, Utah, 620 P.2d 515, 517 (1980); State v. Cazier, Utah, 521 P.2d 554, 555 (1974). In this case, the "injury" in the first part of the definition is the death of a human being. As for the second requirement, it is unnecessary to show cause of death or to provide evidence on the specific degree of homicide. The State need only present evidence that the death resulted from criminal conduct rather than by accident or from natural causes. "The criminal agency causing death may be proved by circumstantial evidence and the reasonable inferences to be drawn therefrom." People v. Miller, 71 Cal.2d 459, 78 Cal.Rptr. 449, 459, 455 P.2d 377, 387 (1969). That was done in this case. The concealment of the skeletal remains and the unnatural position of the body provided sufficient evidence from which the jury could conclude that Phyllis Ady died from criminal activity.

This appeal turns on whether there was sufficient evidence for the jury to convict defendant of the crime of second degree murder for "intentionally or knowingly" causing the death of Phyllis Ady. In considering that question, we review the evidence and all inferences which may reasonably be drawn from it in the light most favorable to the verdict of the jury. We reverse a jury conviction for insufficient evidence only when the evidence, so viewed, is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he was convicted. State v. Kerekes, Utah, 622 P.2d 1161, 1168 (1980); State v. Lamm, Utah, 606 P.2d 229, 231 (1980); State v. Gorlick, Utah, 605 P.2d 761, 762 (1979); State v. Daniels, Utah, 584 P.2d 880, 882-83 (1978); State v. Romero, Utah, 554 P.2d 216, 219 (1976).

In view of what is said in the dissent on this subject, we deem it desirable to emphasize that notwithstanding the presumptions in favor of the jury's decision this Court still has the right to review the sufficiency of the evidence to support the verdict. The fabric of evidence against the defendant must cover the gap between the presumption of innocence and the proof of guilt. In fulfillment of its duty to review the evidence and all inferences which may reasonably be drawn from it in the light most favorable to the verdict, the reviewing court will stretch the evidentiary fabric as far as it will go. But this does not mean that the court can take a speculative leap across a remaining gap in order to sustain a verdict. The evidence, stretched to its utmost limits, must be sufficient to prove the defendant guilty beyond a reasonable doubt. State in re J.S.H., Utah, 642 P.2d 386 (1982); State v. Kourbelas, Utah, 621 P.2d 1238, 1240 (1980).

Viewed in the light most favorable to the jury's verdict, the evidence against the defendant was as follows. At the time Phyllis disappeared, she and defendant were both 15 years of age. They lived about a half block apart on 900 West in Cedar City, she with the Westmans and he with his mother. They attended the same school, but they apparently did not have a dating relationship. Phyllis's aunt testified that before December 12, 1977, defendant had been to their home on only one occasion, the day before, when he merely came to the door to inquire if Phyllis was home.

As she was driven past defendant's house at about 6:00 p.m. on December 12, Phyllis asked to be let off. Mrs. Westman observed defendant, who had been sitting on his porch, walk out to meet Phyllis in the road. Mrs. Westman never saw Phyllis again. When Phyllis had not come home at about 9:00 or 9:30 that evening, Mrs. Westman went to defendant's home but found no one there. Sometime between 10:30 p.m. and midnight, she returned and, when defendant answered the door, asked about Phyllis's whereabouts. ¹ He replied that he did not know, that she had left him and gone with a blonde long-haired fellow defendant did not know. At 1:00 a.m., Mrs. Westman reported Phyllis missing.

On the evening of December 12, before 8:00, defendant telephoned his sister in Las Vegas. He told her that "he was getting a hassle at home and in school and he wanted to come down." He phoned again the next morning. His sister then drove to Cedar City, picked him up about noon, and drove him back to Las Vegas. Defendant then stayed with his sister and her husband in Las Vegas for about four days.

Aside from whatever inference might be drawn from the fact that defendant was the last person seen with Phyllis before she disappeared and the fact that he left Cedar City the day after she disappeared, the only evidence of defendant's guilt of murder in the second degree were statements he made to three family members during his visit in Las Vegas and a statement he made to a girl friend two years later. There was no other evidence of admissions, no physical evidence, and no motive for the homicide.

All of defendant's statements to family members concerned an experience he had during his four-day visit to Las Vegas. His sister and her husband heard him screaming in the night, before midnight. Concluding that he was having a nightmare, they took him into the kitchen to talk about it. The various witnesses' accounts of what was said are critical, and are therefore quoted here in their entirety.

Alisa Backstoce, defendant's sister, testified as follows:

Q. Mrs. Backstoce, can you tell me in substance and effect what was said and by whom in this conversation around your kitchen table?

A. We asked Johnny what his nightmares was about. He said he was having a nightmare about walking with a girl and she slapped him and that's all he remembered, and then waking up taking a bath and her folks, the girl's folks pounding on the door wanting to know where she was.

Q. All right. Did he say anything else about the girl, other than just what you've told us?

A. Later he said he thought he had hurt or killed a girl, but he wasn't sure.

In context, and by its literal terms, this testimony clearly referred to the content of Johnny's (defendant's) dream, although the last quoted answer might be subject to the interpretation that it referred to an actual occurrence.

The testimony of James Backstoce, which is quoted in the footnote, ² clearly refers solely to the defendant's explanation of the dream that had awakened him. In content, it is consistent with his wife's account.

Robert Petree, defendant's brother, testified that he went to the home in Las Vegas during his brother's four-day visit to tell him that the Cedar City Police were looking for him to question him about the disappearance of a young girl. Robert told his brother he was going to return him to Cedar City. The testimony continued as follows:

Q. All right. What happened, then, after that; was there anything further said?

A. Yes. Alisa told me about these nightmares that she had been woken up. I don't remember how many times or what different nights. But she said that she had been awoken by his screaming in the night.

Q. All right. Did you have any further conversation about that with your brother?

A. Yes,...