State v. Swenor

• Decision Date: 12 February 1974
• Docket Number: No. 11250,11250
• Citation: 96 Idaho 327,528 P.2d 671
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Patricia SWENOR, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 671

528 P.2d 671

96 Idaho 327

STATE of Idaho, Plaintiff-Respondent, v. Patricia SWENOR, Defendant-Appellant.

No. 11250.

Supreme Court of Idaho.

Feb. 12, 1974.

On Rehearing Nov. 18, 1974.

James F. Judd, Post Falls, for defendant-appellant.

W. Anthony Park, Atty. Gen., State of Idaho, Thomas M. Vasseur, Asst. Atty. Gen., and William F. Lee, Deputy Atty. Gen., Boise, for plaintiff-respondent.

McFADDEN, Justice.

Patricia Swenor, the defendant-appellant, was charged with the crime of arson in the first degree. She was tried before a jury and found guilty. Prior to imposition of sentence, the defendant moved for a new trial which was denied by the trial court. Thereafter the trial court entered its judgment of conviction and imposed a three year sentence. However, the trial court suspended execution of the sentence and placed the defendant on probation for three years. The defendant has appealed from the judgment of conviction and from the order denying her motion for a new trial.

In her assignments of error, the defendant contends the evidence is insufficient to sustain her conviction, inasmuch as the principal witness against the defendant was an accomplice and there is insufficient corroborative evidence to sustain the conviction. I.C. § 19-2117. ¹ She contends the trial court should have granted her motion for a judgment of acquittal (I.C.R. 29) made at the close of the state's case; that the trial court should have granted her motion for a new trial (I.R.C. 33), and lastly that the trial court should have given her requested instructions nos. 1 and 5.

At the outset, disregarding for the moment the issue of corroboration evidence, there is sufficient competent evidence to sustain this conviction. About July 1, 1972, Mrs. Swenor and her husband leased a farmhouse from a Mr. and Mrs. Schneidmiller. Within the month after taking possession problems arose between the Swenors and their lessors concerning rent and failure of the Swenors to keep the house in neat condition. The Schneidmillers had an eviction notice served on the Swenors who left the premises during the first week in August, 1972. The Swenors and two children stayed three days with some friends, and then 'camped out' near a river, awaiting the time they could occupy another place they had rented.

Verna LaFountain, the principal witness for the prosecution, testified that she had been friendly with the defendant, and while the two of them were driving around in Verna's automobile, the defendant asked Verna to help her in a scheme to burn the Schneidmiller house. Verna testified that during the evening of August 12 and early morning hours of August 13, she drove the defendant to a field behind the house and let the defendant out. The defendant had previously put a Chevron gas can in Verna's car. After the car stopped, the defendant stepped from the car, took the gas can and unsuccessfully tried to start the field on fire. After that, at defendant's request, Verna then drove the defendant to the house, backed into the driveway leading to the garage, and the defendant left the car. The defendant again took the gas can with her and sprinkled gas on a mattress in the garage. Verna further testified she saw the defendant light a match, throw it on the mattress and then shut the garage door. They left, but later drove by the house and adjoining garage and saw it on fire.

Mrs. Swenor, the defendant, and two of her children testified that she had gone to bed on the evening in question and never participated in the activities described by Verna. However, the jury resolved this issue against the defendant, and at most, all that can be said is that a question of fact for resolution by the jury was presented. State v. Darrah, 92 Idaho 25, 435 P.2d 914 (1968).

Concerning the issue as to whether there was sufficient corroborative evidence of Verna LaFountain's testimony to sustain this conviction, this court in State v. Gilvert, 65 Idaho 210, 142 P.2d 584 (1943), defined an 'accomplice' as

'* * * a person concerned in the commission of a crime, whether he directly participates in the commission of the act constituting the offense or aids and abets in its commission, or, not being present, has advised or encouraged its commission.' 65 Idaho at 215, 142 P.2d at 585.

See also, State v. Gonzales, 92 Idaho 152, 438 P.2d 897 (1968); State v. Emmons, 94 Idaho 605, 495 P.2d 11 (1972); State v. Sensenig, 95 Idaho 218, 506 P.2d 115 (1973). Under this definition Verna LaFountain was an accomplice. Under I.C. § 19-2117, to sustain this conviction her testimony must be corroborated by other evidence. In State v. Brown, 53 Idaho 576, 26 P.2d 131 (1933), the court discussed the type of acceptable corroborative evidence as follows:

'The law merely requires that there must be corroboration of the testimony of the accomplice before a conviction can be had. (Section 19-2017, Idaho Code Annotated.) Under said section corroborating testimony need only tend to connect the defendant with the crime. It may be slight. (People v. McLean, 84 Cal. 480, 24 P. 32). And it need only go to one material fact. (State v. Knudtson, 11 Idaho 524, 83 P. 226.) And the corroboration may be entirely circumstantial. (State v. Gillum, 39 Idaho 457, 228 P. 334. See, also, State v. Orr, 53 Idaho 452, 24 P.2d 679; State v. Whisler, 32 Idaho 520, 185 P. 845.)' 53 Idaho at 581, 26 P.2d at 133.

Continuing, at 53 Idaho 585-586, 26 P.2d 135, the court quoted from State v. Gillum, 39 Idaho 457, 228 P. 334 (1924), as follows:

'Where the circumstances point to the guilt of the accused, independent of the accomplice's testimony, such circumstantial evidence may be a sufficient corroboration of the accomplice's testimony to sustain a conviction. It is not necessary that the testimony of an accomplice be corroborated in every detail. Any corroborative evidence legitimately tending to connect the defendant with the commission of a crime may be sufficient to warrant a conviction, although standing by itself it would not be sufficient proof of defendant's guilt.' 39 Idaho at 463, 464, 228 P. at 336.

It is our conclusion that there is sufficient corroborative evidence to sustain this conviction. The state in its case offered into evidence a gallon Chevron gasoline can, which was identified as being similar to the one used by the defendant. This gasoline can was taken from one of the Swenor's vehicles by Larry Swenor and given to the officers by him. The contents of this can were examined by a laboratory technician who testified the fluid in it was identical to white gas obtained from a Chevron dealer used as a control sample.

Another of the state's witnesses testified that Mrs. Swenor, after receiving the eviction notice, stated, 'I'm going to burn the son of a bitch down,' referring to the Schneidmillers' house. Moreover, the defendant admitted under direct examination that on the day they received the eviction notice she made such a statement, although she explained that it was said in a fit of temper. This statement, although its import was challenged by the defendant, can be considered corroborative evidence. Statements by a defendant have been accepted as corroborative evidence in other circumstances. State v. Brown, 53 Idaho 576, 26 P.2d 131 (1933); State v. Larsen, 91 Idaho 42, 415 P.2d 685 (1966). Corroboration may be furnished by a defendant's own words or conduct. People v. Teitelbaum, 163 Cal.App.2d 184, 329 P.2d 157 (1958); People v. Goldstein, 136 Cal.App.2d 778, 289 P.2d 581 (1955); People v. Harper, 25 Cal.2d 862, 156 P.2d 249 (1945). See also, State v. Harmon, 135 Mont. 227, 340 P.2d 128 (1959).

Another of the state's witnesses, a police officer, testified that at the time the defendant was arrested, Larry Swenor, the defendant's husband stated to her, 'See, I told you they would catch you for what you did.' This statement was made in the defendant's presence and no reply was made to it by the defendant. Under the circumstances this statement would be corroborative evidence. The defendant, however, argues that this could not be considered as corroborative evidence because it was made by an accomplice and also had to be corroborated. Even though the defendant objected to the statement made by her husband, which objection was overruled by the trial court, no assignment of error is predicated on this point. There is no evidence in the record that Larry Swenor participated in the burning of the building for which defendant was convicted, nor is there any evidence that Larry Swenor advised or encouraged the defendant to commit this crime. It is our conclusion that Larry Swenor was not an accomplice and the rule argued for by defendant is inapplicable under these facts.

At the close of the state's case in chief, the defendant presented her motion for acquittal pursuant to Idaho Criminal Rules (I.C.R.) rule 29. ² The trial court denied this motion, and then the defendant presented her case. At the close of all evidence, the defendant renewed her motion for acquittal. The trial court again denied the motion. It is the conclusion of the court that the trial court did not err in denying these motions as there was sufficient evidence to submit to the jury, and as previously pointed out in this opinion, there is sufficient evidence to sustain the verdict returned.

Following entry of the verdict, the defendant moved for a new trial on the grounds that the trial court failed to give her requested instructions on circumstantial evidence and on the necessity for corroboration of the testimony of an accomplice.

The defendant's requested instruction on circumstantial evidence was to the effect that where circumstantial evidence is relied upon by the state it must be irreconciable with the theory of the defendant's innocence. In the past such an instruction has only been held applicable to cases where the state has relied solely upon circumstantial evidence as the basis for the conviction. State...