State v. Williams

• Decision Date: 21 September 1982
• Docket Number: No. 13946,13946
• Citation: 103 Idaho 635,651 P.2d 569
• Parties: STATE of Idaho, Plaintiff-Respondent-Cross Appellant, v. Eldon Orin WILLIAMS, Defendant-Appellant-Cross Respondent.
• Court: Idaho Court of Appeals

Page 569

651 P.2d 569

103 Idaho 635

STATE of Idaho, Plaintiff-Respondent-Cross Appellant, v. Eldon Orin WILLIAMS, Defendant-Appellant-Cross Respondent.

No. 13946.

Court of Appeals of Idaho.

Sept. 21, 1982.

Fred M. Gibler, Brown, Peacock, Keane & Boyd, P. A., Kellogg, for defendant-appellant-cross-respondent.

David H. Leroy, Atty. Gen. by Lynn E. Thomas, Sol. Gen., Timothy M. Walton and Myrna A. I. Stahman, Deputy Attys. Gen., Boise, for plaintiff-respondent-cross-appellant.

BURNETT, Judge.

Eldon Williams stands convicted on two counts of second degree burglary, arising from separate incidents that occurred on the same day. The evidence at trial tended to connect Williams with a forced entry of a drug store in one instance, and with possession of recently stolen property from another drug store in the second instance. Upon this evidence the trial judge charged the jury to make certain presumptions concerning Williams' intent and participation in the alleged burglaries. For reasons stated in the first part of our opinion, we hold that the jury was improperly instructed on presumptions, and that the judgment of conviction should be reversed.

In the next section of our opinion we examine, for the purpose of remand, Williams' challenge to (a) the trial court's refusal to give requested instructions on circumstantial evidence and proof of a defendant's identity; (b) the admission of lay opinion testimony and of a particular exhibit; and (c) the sufficiency of evidence to justify a trial on one of the burglary charges. We do not reach another issue raised by Williams, regarding late disclosure of evidence by the prosecution, because it is mooted by our reversal and remand. In the final part of the opinion, we address the state's cross-appeal from dismissal of a "persistent violator" charge.

I

In the public mind, the term "burglary" often is equated with "stealing" or with "breaking and entering." But they are not the same. Burglary is a crime of specific intent. Under the law in effect at times pertinent to this case, burglary was defined as the entry into a building or other structure "with intent to commit grand or petit larceny or any felony." I.C. § 18-1401. The entry need not be forcible, and a larceny (or any felony) need not actually result. State v. McCormick, 100 Idaho 111, 594 P.2d 149 (1979); State v. Sullivan, 34 Idaho 68, 199 P. 647 (1921). Conversely, the mere fact that something has been stolen does not necessarily mean that a burglary has occurred. The evidence must show an entry with contemporaneous intent to commit the larceny or a felony. State v. Bigley, 53 Idaho 636, 26 P.2d 375 (1933); State v. Sullivan, supra.

The question of intent is for a jury to decide. State v. Dwyer, 33 Idaho 224, 191 P. 203 (1920). An inference of intent may be drawn from circumstantial evidence. E.g., State v. Oldham, 92 Idaho 124, 438 P.2d 275 (1968). Actual commission of a larceny is evidence from which a jury is entitled, but not required, to infer the requisite intent. State v. Bigley, supra; State v. Bull, 47 Idaho 336, 276 P. 528 (1929). A similar inference may be drawn from evidence of forced entry. State v. Liston, 95 Idaho 849, 521 P.2d 1028 (1974). ¹

In this case the jury instructions went beyond explaining these permissive inferences. The instructions ventured into the realm of presumptions. Instruction No. 10 stated that unexplained breaking and entering raises a "presumption ... that the breaking and entering were accomplished with the intent to commit larceny." The jury was further informed that "[t]he presumption is effective only so long as there is no substantial evidence contradicting the conclusion flowing from the presumption...." ² Instruction No. 11 contained a hybrid reference to both an inference and a presumption. It said that "unexplained possession of recently stolen property raises an inference of guilt and may be enough by itself to justify a conviction of burglary." Like Instruction No. 10, however, it further said that "[t]he presumption is effective only so long as there is no substantial evidence contradicting the conclusion flowing from the presumption...." ³

The fundamental difference between an inference and a presumption is that an inference is permissive; a trier of fact may choose whether or not to draw it. A presumption, on the other hand, attaches definite probative value to certain facts. If the presumption is conclusive, it mandates a particular conclusion. If it is rebuttable, it mandates the conclusion in the absence of contradictory evidence. See generally 1 Wharton's Criminal Evidence § 90 (C. Torcia 13th ed. 1972).

In this case, Instruction No. 10--that intent to commit larceny would be presumed from forced entry, absent substantial evidence to the contrary--was, by its own terms, a statement of a rebuttable presumption. Instruction No. 11, as noted previously, referred to an "inference" of guilt, arising from unexplained possession of recently stolen property, but said that this "presumption" was effective so long as there was "no substantial evidence to the contrary." In our view, a jury reasonably could have interpreted this instruction to state a rebuttable presumption, similar to that contained in Instruction No. 10. We are constrained to examine these instructions with careful attention to the language actually used, and as reasonable jurors could have interpreted them. See Ulster County Court v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979). Accordingly, we will treat both instructions in this case as statements of rebuttable presumptions.

Williams challenges the constitutionality of these presumptions. The due process clause of the Fourteenth Amendment to the United States Constitution "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In Re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). The state's burden of proof may not be diminished by a jury instruction stating a conclusive presumption. Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). Nor may a jury instruction contain a presumption that shifts to the defendant the burden of persuasion on an essential element of the state's case. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).

In Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), where specific intent was an element of the crime charged, the United States Supreme Court held unconstitutional a jury instruction which stated simply that a person is presumed to intend the consequences of his voluntary acts. See also State v. McCoy, 100 Idaho 753, 605 P.2d 517 (1980). The court in Sandstrom said that a jury reasonably could have interpreted the presumption as either conclusive or rebuttable; and if they chose the latter interpretation, they reasonably could have perceived the effect of the presumption as shifting the burden of persuasion on the issue of intent. The court rejected an argument by the State of Montana--also made by the State of Idaho in the present case--that only the burden of producing evidence, rather than the burden of persuasion, would have been shifted. The court said:

If Montana intended its presumption to have only the effect [of shifting the burden of production] ... then we are convinced that a reasonable juror could well have been misled by the instruction given, and could have believed that the presumption was not [so] limited.... [442 U.S. at 517, 99 S.Ct. at 2455.]

The Supreme Court in Sandstrom attributed the jury's potential confusion, in part, to lack of any qualifying instructions regarding the legal effect of the presumption. In contrast, the instructions in the present case reflect an effort by the district court to explain the effect of each presumption. Both instructions state that the presumptions could be rebutted by "substantial evidence," and that each presumption "is said to disappear when such contradictory evidence is adduced." The instructions further say that the presumptions could be rebutted not only by affirmative proof but by "any evidence, or lack of evidence, in the case." The jury also was informed, in general introductory instructions, that the burden of proof always rests on the state. The state now argues that this qualifying language insulates the present case from the impact of Sandstrom.

We disagree. The instructions before us do, of course, go beyond the Sandstrom instruction in an attempt to explain the presumptions. But the explanation is contradictory. The jury is informed, by Instructions 10 and 11, that a "presumption" is effective unless rebutted by "substantial evidence," and that it is said to disappear when "such contradictory evidence" is adduced--but that it may be rebutted by "any evidence" or "lack of evidence." In our view, a jury would have difficulty reconciling "substantial evidence" with "any evidence" or "lack of evidence." Instructions 10 and 11 leave doubt as to how the "presumptions" may be rebutted, and none of the instructions explains the difference between the burden of persuasion and the burden of producing evidence.

We do not believe the legal effect of each presumption was clarified by the district court's attempted explanation. Rather, the jurors could have been confused by the contradictory qualifying language, and may well have interpreted the instructions simply to mean that the presumptions would apply unless substantial evidence were presented to the contrary. Under such an interpretation, forced entry would be deemed proof of intent to commit larceny, and possession of recently stolen property would be deemed proof of participation in a burglary, unless there were a substantial showing otherwise. In practical terms, this interpretation would impose an evidentiary burden upon the accused to overcome each presumption, and could...