State v. Stevens

• Decision Date: 28 May 1969
• Docket Number: No. 10294,10294
• Citation: 93 Idaho 48,454 P.2d 945
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Donald R. STEVENS, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 945

454 P.2d 945

93 Idaho 48

STATE of Idaho, Plaintiff-Respondent, v. Donald R. STEVENS, Defendant-Appellant.

No. 10294.

Supreme Court of Idaho.

May 28, 1969.

Rehearing Denied June 23, 1969.

A. A. Merrill, Idaho Falls, for appellant.

Allan G. Shepard, Atty. Gen., and Walter H. Bithell, Asst. Atty. Gen., Boise, Jack G. Voshell, Pros. Atty., Idaho Falls, for appellee.

McFADDEN, Chief Justice.

Donald Stevens, following trial and a jury verdict of guilty of the crime of attempted grand larceny, was adjudged guilty of the crime and sentenced to serve a term of not more than five years in the penitentiary. Defendant appealed from this judgment of conviction.

On the 30th of December 1967, at about 7:00 p.m., various Bonneville County police officers, assisted by a police officer of the city of Idaho Falls, and by a patrolman of the Idaho State Police were summoned to the area of the Skyline High School Building which was then under construction. This structure was a short distance from Interstate Highway 15. After observing the area they approached the building.

Investigation disclosed a white Comet sedan automobile with the trunk open. Coiled into the trunk was a quantity of heavy insulated copper cable still connected to other cable situated on the ground. Later this cable in the car was weighed, and it was determined that the cable weighed about 1150 pounds.

There was fresh snow on the ground, and at the time of the investigation it was dark. The officers started their investigation and, searching the building, found one Joe Dobson standing in the school. Dobson was arrested and subsequently pled guilty to a charge of attempted grand larceny.

State Patrolman Ricks, who participated in the investigation, looked around the Comet for tracks leading from the automobile. After some searching he found some tracks that he followed. He tried to determine the size of the individual he was following, and estimated that the prints were smaller than those made by his 10 1/2 shoe, and that the print was made by a narrow shoe with a distinct heel, similar to that of a riding boot. Ricks followed the tracks away from the school building and into a field where they somewhat reversed course, went down another field, paralleled a canal bank, and then crossed the canal into the Newman ranch property. Ricks testified that at one point it appeared that the person whose tracks he was following had been crawling in the snow for a short distance.

Ricks lost the tracks at the Newman ranch where they went between a shed and a garage. He phoned from the Newman Ranch for assistance of other officers, and shortly a city officer and deputy sheriff arrived. The three officers were standing outside in the lighted yard conversing for a few minutes between themselves and with the Newmans when they noticed that some cattle in a corral a short distance from the yard began to stir around. Ricks asked the two officers to keep watch and went to investigate the cause of the restlessness of the cattle. Ricks went around a barn, through a corral and into an area of some haystacks. Continuing his search he saw a man, whom he described as crouched down behind some baled hay. Ricks arrested the man, who is the defendant.

At the time of the arrest Stevens was wearing brown or tan cowboy type riding boots with no overshoes, and his trousers were wet. Another officer later observed that Stevens' hands were raw and red and cold. At the time the defendant was incarcerated, he was wearing the same brown or tan cowboy boots which he had been wearing at the time of his arrest. About one week later it came to the attention of the police officers that these boots had disappeared and that the defendant was walking around his cell in his stocking feet. A search of the cell on January 1, 1968 failed to turn up the missing boots. Then on January 14, 1968 another intensive search was conducted and the boots were found hidden behind a steel panel in the cell wall. They had been cut up and mutilated, but Officer Poole identified them at the trial as the same boots the defendant had been wearing when arrested.

The defendant's explanation of his presence at the Newman ranch was that on the afternoon of December 30, 1967 he had gone skiing at Blizzard Mountain about 22 miles out of Arco. He testified that he drove a Dodge pickup and went to see a Mr. Carlson, who was not at home, and then went through New Sweden to the Arco Highway and then on to the ski area. He stated he skied for three or four hours and then started his return trip home to Idaho Falls. He further testified that about five-thirty, while on the Interstate Highway, he ran out of gas about a mile from town. He spent about forty-five minutes taking off the gas pump and blowing out the fuel line trying to get the pickup truck started, then recognized that he was out of gas. He stated that he walked up the freeway and crossed over to the Newman ranch for gas. He heard a noise in the corral and thought they might be feeding the cattle, so he went out there where the officer arrested him.

Other witnesses for appellant testified that the next morning they went out to get his pickup which was left on the freeway. One of them jumped the wires and put in some gas, and the defendant's brother drove the pickup home. On the state's rebuttal, however, Patrolman Ricks testified that later on the night of the defendant's arrest he had toured Interstate Highway 15 looking for any 'stray' automobiles. He stated that he saw no stray vehicle at the place where the accused and his witnesses testified the defendant had parked his pickup.

Many of defendant's assignments of error are predicated upon the proposition that there was a lack of evidence to substantiate the finding of the jury that he was guilty of the crime charged. A brief review of the evidence submitted at the trial discloses competent and substantial circumstantial evidence from which the jury could reasonably find that the defendant was guilty. In order to agree with defendant's contentions in this regard it would have been necessary for the jury to have accepted the testimony of the defendant and of his witnesses without regard to the circumstantial evidence submitted by the state. As has ofttimes been stated, a verdict of conviction will not be disturbed where there is substantial and competent evidence to support it, since credibility of the witnesses and the weight to be given their testimony is solely for the jury. State v. Oldham, 92 Idaho 124, 438 P.2d 275 (1968); State v. Pruett, 91 Idaho 537, 428 P.2d 43 (1967). Although the state's case is based primarily on circumstantial evidence, that alone is not sufficient to upset a jury verdict. This court has repeatedly sustained convictions based on circumstantial evidence. State v. Ponthier, 92 Idaho 704, 449 P.2d 364 (1969); State v. Farris, 48 Idaho 439, 282 P. 489 (1929); State v. Yancey, 47 Idaho 1, 272 P. 495 (1928); State v. Dawn, 42 Idaho 210, 245 P. 74 (1926); State v. McLennan, 40 Idaho 286, 231 P. 718 (1925).

Defendant claims the trial court erred in not granting his motion for an advisory instruction to acquit, interposed at the close of the state's case, and in not granting a similar motion at the close of the entire case. In the first place this court held in State v. Puckett, 88 Idaho 546, 401 P.2d 784 (1965), that the refusal to grant such a motion based upon the insufficiency of the evidence is a matter within the discretion of the trial court and that it was not error for the trial court to refuse to instruct the jury to acquit. Secondly the record in any event contains substantial and competent evidence to sustain the verdict of the jury.

Certain of defendant's assignments of error are directed to the alleged refusal of the jury to follow the court's instructions. The defendant asserts that the jury failed to follow instruction no. 5 which set forth the obligation of the state to prove every material allegation of the information beyond a reasonable doubt and defined 'reasonable doubt.' This instruction also instructed the jury that the defendant is presumed to be innocent. The defendant also contends that the jury ignored instruction no. 6 which stated that if the evidence can be reconciled either with the theory of innocence or guilt the law requires adoption of the theory of innocence. Nowhere does defendant assert that these particular instructions incorrectly stated the law.

Appellant also asserts error in the failure of the jury to follow the first paragraph of instruction no. 12 and instruction no. 13. The challenged portion of instruction no. 12 dealt with the law that to render a person an accomplice he must in some manner knowingly, and with criminal intent, aid, abet, assist or participate in the criminal act. Instruction no. 13 dealt with the provisions of I.C. § 18-114 requiring that in every crime there must exist a union, or joint operation, of act and intent, or criminal negligence, and further provided that intent is manifested by the circumstances of the offense.

To sustain the defendant's contention that the jury refused to follow the court's instructions in the law would require this court to accept the defendant's version of what took place, completely ignoring all the evidence submitted by the state. This cannot be done by this court. It is within the province of the jury, and not this court, to determine where the truth resides when there are two different and conflicting versions of an incident. Here the jury made that determination. These assignments of error are without merit. State v. Oldham, supra; State v. Pruett, supra.

Defendant claims that the trial court erred in refusing and failing to give his requested instruction no. 16, contending that a defendant in a criminal case is entitled to have his theory of the case submitted to the jury. There is no question but that defendant is entitled to have his theory of the case presented to...