State v. Larson

274 N.W.2d 884, 1979 N.D. LEXIS 242

• Court: North Dakota Supreme Court
• Decided: January 25, 1979
• Docket: Crim. 653
• Status: Published

Opinions

PEDERSON, Justice.

Eugene Allen Larson was convicted by a jury of the Class C felony — possession of heroin, a controlled substance — in violation of § 19.03.1-05, Schedule I, (3)(j), and § 19-03.1-23(1)(a), NDCC. On this appeal, Larson raises only one issue — does the evidence show that he possessed heroin? We think it does. We denied his motion for release pending appeal in State v. Larson, 271 N.W.2d 1 (N.D.1978).

As we have said a number of times, most recently in State v. Olson, 274 N.W.2d 191 (N.D.1978), and State v. Goeller, 264 N.W.2d 472, 477 (N.D.1978), when sufficiency of evidence is challenged on appeal we must view the evidence in the light most favorable to the verdict.

The evidence in this ease indicates that the heroin was found under the back seat of Larson’s car when it was searched pursuant to a search warrant. Other drug-related paraphernalia was found in the trunk, under the front seat, and in the pocket of a coat belonging to Larson. Larson argues that this circumstantial evidence does not establish that he possessed the heroin, when the undisputed direct proof places that possession in another, Matthias Lee.

Matthias Lee was a passenger in the back seat of Larson’s car when it was stopped in Valley City. Lee testified that he purchased the heroin from Larson in Moorhead, Minnesota, and that it was in his exclusive possession at all times thereafter and that he placed it under the back seat when the car was stopped by the police.

The circumstantial evidence is not insubstantial. The jury is the judge of the credibility of the witnesses. A conviction based upon conflicting evidence, even when some is direct and some is circumstantial, will not be disturbed on appeal where there is substantial evidence to sustain the verdict. See State v. Loucks, 209 N.W.2d 772 (N.D.1973).

In State v. Allen, 237 N.W.2d 154, 161 (N.D.1975), we said:

“Since the jury must weigh the evidence and determine the credibility of the witnesses in its role of determining guilt or innocence, we will reverse its decision only if the record presents no substantial evidence to support the verdict. In cases involving circumstantial evidence, our more specific role is merely to review the record to determine if there is competent evidence from which the jury could draw an inference reasonably tending to prove guilt and fairly warranting a conviction.”

Larson bases his argument upon a statement made by the Montana Supreme Court in the case of State v. Hood, 89 Mont. 432, 298 P. 354, 355 (1931), which he says “is still considered good law.” The Montana court said:

“The question before us is whether the foregoing evidence is sufficient to justify defendant’s conviction. To justify a conviction of unlawful possession of a prohibited article, there must be proof of actual control and management of the thing prohibited.

“. . . The evidence tending to connect him [the defendant] with the possession of cocaine is entirely circumstantial. This being so, the conviction cannot be sustained, unless the criminatory circumstances point so clearly to his guilt as to be inconsistent with any other rational hypothesis.”

We find no quarrel with those general statements of the law; however, Larson fails to recognize the distinction that we made in State v. Kaloustian, 212 N.W.2d 843, 845 (N.D.1973), where we said:

“In State v. Miller, 202 N.W.2d 673 (N.D.1972); State v. Champagne, 198 N.W.2d 218 (N.D.1972), and State v. Carroll, 123 N.W.2d 659 (N.D.1963), we pointed out that the rule as to circumstantial evidence, at the trial level, is that such evidence must be conclusive and must exclude every reasonable hypothesis of innocence, but at the appellate level we do not substitute our judgment for that of the jury or trial court where the evidence is conflicting, if one of the conflicting inferences reasonably tends to prove guilt and fairly warrants a conviction.”

[Emphasis supplied.]

We have reiterated the point on numerous occasions. See State v. Allen, supra, and more recently, State v. Ghylin, 250 N.W.2d 252 (N.D.1977); State v. Schuler, 243 N.W.2d 367 (N.D.1976); and State v. Erickson, 241 N.W.2d 854 (N.D.1976).

The jury had the privilege of disbelieving Matthias Lee when he claimed exclusive possession of the heroin. There was adequate circumstantial evidence in the case upon which an inference of guilt can rest. We affirm the judgment of conviction.

ERICKSTAD, C. J., VANDE WALLE and SAND, JJ., and BURDICK, Supreme Court Commissioner, concur. BURDICK, Supreme Court Commissioner, sitting in place of PAULSON, J., disqualified.