State v. Laib

397 N.W.2d 658, 1986 S.D. LEXIS 358

• Court: South Dakota Supreme Court
• Decided: December 23, 1986
• Docket: 15168
• Status: Published

Opinions

HENDERSON, Justice.

This is an appeal from a judgment of conviction for third-degree burglary. We affirm. .

At the time of the burglary in question, defendant Myron Laib and his accomplice Brian Buck were residents of the Glory House in Sioux Falls, South Dakota. On the evening of April 20, 1985, they broke into Schoeneman’s Home Center and stole two tool boxes, various tools, and two flashlights. The accomplice buried the tool boxes and tools in a pile of sand near the Glory House. Defendant Laib and Buck then took the flashlights to their rooms. The next day the accomplice confessed the crime to the director of the Glory House; he also led the director to the sand pile and dug up the tool boxes. Based on the accomplice’s confession, the director retrieved the two flashlights. One flashlight was in the accomplice’s locker; the other was found on a dresser in Laib’s room. At that time, four other individuals shared Laib’s room at the Glory House. The rooms at the Glory House are not locked, and other residents have access to the rooms.

Laib did not testify at the trial. However, the accomplice testified at length and provided details about Laib’s part in the burglary. The only other evidence presented by the state which would implicate Laib was the flashlight found in his room. This evidence is strong circumstantial evidence supporting Laib’s participation in the burglary.

Laib raises two issues on appeal. His first contention is that there was insufficient evidence presented at trial to corroborate the accomplice’s testimony. Laib argues that absent the accomplice’s testimony, the state has only shown that an offense was committed.

SDCL 23A-22-8 provides:

A conviction cannot be had upon the testimony of an accomplice unless it is corroborated by other evidence which tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense, or the circumstances thereof.

It is well settled that the testimony' of an accomplice need not be corroborated by evidence sufficient to sustain a conviction. The evidence need only affirm the truth of the testimony of the accomplice and establish the guilt of the defendant. State v. Nelson, 310 N.W.2d 777 (S.D.1981); State v. Moellar, 281 N.W.2d 271 (S.D.1979). There is no requirement that every fact testified to by the accomplice be confirmed by corroborating evidence. State v. Erickson, 315 N.W.2d 332 (S.D.1982). Circumstantial evidence can supply the necessary corroboration. Nelson, supra.

In reviewing the record, we find sufficient evidence to corroborate the. accomplice’s testimony. The finding of the flashlight in Laib’s room is certainly not conclusive proof of Laib’s participation in the crime; however, it does tend to affirm the truth of Buck’s testimony and establish the guilt of Laib. Furthermore, one might infer from the physical evidence of the two tool boxes that two people committed the crime.

Laib also contends that the trial court erred in instructing the jury regarding the testimony of an accomplice. Laib proposed South Dakota Pattern Jury Instruction 1-16-7, which states in part: “You are instructed that the testimony of an accomplice ought to be viewed with distrust _” (emphasis added). The trial court gave that instruction, but substituted the word “caution” for the word “distrust.” Laib argues that the modified instruction does not correctly state the law, thereby resulting in reversible error. We disagree.

This court has stated that the trial courts must give a “cautionary instruction” when there has been accomplice testimony. State v. Beene, 257 N.W.2d 589 (S.D.1977); see also Grooms v. State, 320 N.W.2d 149 (S.D.1982) and State v. Spoonemore, 287 N.W.2d 109 (S.D.1980). On at least three occasions we have approved the use of the word “caution” rather than the word “distrust” in such instructions. Spoonemore, supra; Beene, supra; State v. Douglas, 70 S.D. 203, 16 N.W.2d 489 (1944). Therefore, the trial court did not err in its instruction to the jury.

The judgment of the trial court is affirmed.

WUEST, C.J., MORGAN, J., and FOSHEIM, Retired Justice, concur. SABERS, J., dissents. MILLER, J., not having been a member of the court at the time this action was submitted to the court, did not participate.