State v. Reardon, 80-449

• Decision Date: 26 June 1981
• Docket Number: No. 80-449,80-449
• Citation: 121 N.H. 604,431 A.2d 796
• Parties: The STATE of New Hampshire v. Michael K. REARDON.
• Court: New Hampshire Supreme Court

Page 796

431 A.2d 796

121 N.H. 604

The STATE of New Hampshire v. Michael K. REARDON.

No. 80-449.

Supreme Court of New Hampshire.

June 26, 1981.

Gregory H. Smith, Atty. Gen. (Michael A. Pignatelli, Concord, on brief and orally), for the State.

James E. Duggan, Concord, Appellate Defender, by brief and orally, for defendant.

PER CURIAM.

The issues in this burglary case involve the composition of the jury, the sufficiency of the evidence, and the trial court's instruction to the jury. We uphold the defendant's conviction.

The defendant was indicted for burglary (RSA 635:1) for having entered a dwelling house on January 30, 1980, without permission, license or privilege and with the "purpose to commit the crime of theft therein." He was convicted by a jury and appealed after the Court (Bean, J.) had denied his motion to set aside the verdict.

At the outset, we decline to reconsider our decision in State v. Elbert, 121 N.H. ---, 424 A.2d 1147 (1981), and therefore reject the defendant's claim with respect to the composition of the jury.

The defendant also claims that there was insufficient evidence to support a finding beyond a reasonable doubt that he entered the dwelling with the intent to commit the crime of theft therein. In deciding this issue, we must consider all of the evidence and all reasonable inferences therefrom in the light most favorable to the State, State v. Qualters, 121 N.H. ---, ---, 431 A.2d 780, 781-782 (1981); State v. Meloon, 119 N.H. 76, 77, 397 A.2d 1041, 1043 (1979), and determine whether any rational trier of fact could have found the existence of this element of the crime beyond a reasonable doubt. State v. Kiluk, 120 N.H. 1, 4, 410 A.2d 648, 650 (1980); see State v. Scarlett, 121 N.H. ---, ---, 426 A.2d 25, 27 (1981). An intent to steal may be inferred from the defendant's conduct under all the circumstances, and an "unexplained breaking and entering may give rise to an inference that it was made with an intent to commit larceny...." State v. Wills, 107 N.H. 107, 108-09, 218 A.2d 47, 48-49 (1966); see State v. Kelley, 120 N.H. 14, 16, 413 A.2d 300, 302 (1980).

In the instant case, there was evidence that the defendant was out of work and without funds and was concerned about the cost of driving to Massachusetts each day to attend a drug treatment program. The defendant, on the night in question, had driven the owner of the home that he was charged with burglarizing to a theatre, and a jury could reasonably infer that the defendant thought that no one was home that evening. Two upstairs rooms had been rented to a Ms. Reynolds, however, who arrived home at 9:15 on the night of the crime. She heard someone attempting to enter through the cellar door and called the police, who came to the house one entering the house and the other going to the rear of the house. One officer, hearing the cracking of wood, positioned himself near the cellar door. The door "popped open," revealing the defendant on the cellar stairs with a prybar in one hand and a flashlight in the other. The officer, who yelled "Freeze," testified that the defendant raised the prybar in a "menacing manner," but then dropped it and was arrested. He gave no explanation for his entry and did not testify at the trial. Based on this record, we cannot say that no rational person could find beyond a reasonable doubt that the defendant intended to commit the crime of theft within the house at the time he entered it. See State v. Reed, 114 N.H. 377, 321 A.2d 581 (1974); State v. Wills, 107 N.H. 107, 218 A.2d 47 (1966).

The defendant's final argument relates to the trial court's instructions to the jury. The indictment alleged that the defendant had entered the victim's home with the purpose of committing the "crime of theft therein." RSA 635:1 uses the phrase "with...