State v. Wilkerson

Citation83 N.M. 770,497 P.2d 981,1972 NMCA 67
Decision Date12 May 1972
Docket NumberNo. 875,875
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Lish WILKERSON, Defendant-Appellant.
CourtCourt of Appeals of New Mexico
OPINION

COWAN, Judge.

Defendant appeals following his conviction for burglary (§ 40A--16--3, N.M.S.A.1953 (Repl.Vol. 6, 1971 Supp.)). We affirm.

At the close of the state's case and again at the close of all the evidence the defendant moved for a directed verdict for lack of substantial evidence to support a conviction. The defendant urges error in the denial of these motions.

On July 7, 1971, at about 10:30 P.M., a guest at a motel in Hobbs looked out of her room and saw three men standing at the back of a pick-up truck, who then 'got another colored man out of the cab of truck * * *.' The area was well lighted. She identified the defendant as the man in the cab. The four men started to walk away when the defendant returned and re-entered the truck cab. The witness then turned away to make a phone call.

When the police arrived they apprehended three persons, including the defendant, near the motel. Certain business papers were found on the ground near the pick-up and others were found in the alley near where the defendant was apprehended.

The owner of the pick-up, also a guest of the motel, testified that some tools were missing from the back of the pick-up truck and identified the business papers as those he kept in the glove compartment of the truck. He had not given the defendant permission to enter the vehicle.

The statute, supra, under which the defendant was convicted, states in part:

'Burglary consists of the unauthorized entry of any vehicle, * * * with the intent to commit any felony or theft therein.'

By his motions for a directed verdict, the defendant placed before the trial court the question of whether there was any substantial evidence to support, or reasonably tending to support, the charge of burglary. Viewing the record as a whole, we think there is substantial evidence to warrant allowing the case to go to the jury and the trial court did not err in overruling defendant's motions. State v. Ferguson, 77 N.M. 441, 423 P.2d 872 (1967). The identification of the defendant was positive, as was his presence in the cab of the pick-up. The jury could reasonably infer from the defendant's unauthorized presence in the vehicle that he had the necessary intent to commit a felony or theft therein. State v. Ortega, 79 N.M. 707, 448 P.2d 813 (Ct.Ap...

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6 cases
  • State v. Office of the Pub. Defender
    • United States
    • New Mexico Supreme Court
    • August 16, 2012
    ...defendant's unauthorized presence in the vehicle that he had the necessary intent to commit a felony or theft therein.” 83 N.M. 770, 771, 497 P.2d 981, 982 (Ct.App.1972). Depending on the evidence, then, a jury might infer from the accused's presence under a vehicle that the accused had the......
  • State v. Bybee
    • United States
    • Court of Appeals of New Mexico
    • August 17, 1989
    ...commit a felony therein. Id. at 193, 679 P.2d at 1291. See also Miller v. Cox, 97 N.M. 414, 356 P.2d 231 (1960); State v. Wilkerson, 83 N.M. 770, 497 P.2d 981 (Ct.App.1972). Examination of Section 30-16-3 indicates that the present language of the statute parallels a prior statute enacted i......
  • State v. Bell
    • United States
    • New Mexico Supreme Court
    • March 1, 1977
    ...motion. State v. Ferguson, 77 N.M. 441, 423 P.2d 872 (1967); State v. Martin, 53 N.M. 413, 209 P.2d 525 (1949); State v. Wilkerson, 83 N.M. 770, 497 P.2d 981 (Ct.App.1972). 3. Reversible error is claimed because the court denied a defense motion for a directed verdict. Defendant claimed tha......
  • State v. Martinez
    • United States
    • Court of Appeals of New Mexico
    • December 23, 2019
    ...a jury could reasonably infer the necessary intent to commit a felony or theft therein"); State v. Wilkerson, 1972-NMCA-067, ¶ 6, 83 N.M. 770, 497 P.2d 981 (holding that the jury could reasonably infer from the defendant's unauthorized presence in the vehicle that he had the necessary inten......
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