State v. Lauderdale

509 P.2d 1352, 85 N.M. 157

• Court: New Mexico Court of Appeals
• Decided: February 23, 1973
• Docket: 979
• Status: Published

Opinions

OPINION

HERNANDEZ, Judge.

Defendant appeals his conviction on one count of burglary (§ 40A-16-3, N.M.S.A. 1953 (2d Repl.Vol. 6)). Prior to and during the trial the defendant had court-ap- . pointed counsél. Counsel was also appointed to prosecute this appeal, but the defendant filed a motion requesting permission to represent himself, which motion was granted.

The essential facts are uncontradicted. During the early hours of January 11, 1972, Police Officer Pena, on routine patrol, observed a man walking across a parking lot near a shopping center; the man was carrying two bags. All of the businesses in the center were closed for the night. As the man reached the sidewalk the officer flashed the patrol car’s spotlight on him. The man dropped the bags and ran; Officer Pena pursued him into a construction area. The man jumped into an excavation where Officer Pena and two other officers who had been summoned by radio found the defendant and placed him under arrest.

The police officers then, retrieved the dropped bags and found that they contained several watches, six pairs of slacks, a boy scout watch, compass and knife, two shirts and some socks. Almost all these items bore the price tags of one of the stores in the center and there were also some loose price tags in the bottom of the bags. A search of the general area of the incident revealed some other items hidden under a trailer, also bearing the price tags of the same store. The manager of the store was called and an inspection of the store showed evidence of a burglary. A broken window was discovered which the store manager testified had been intact at the close of business the evening before. The manager identified both the items found in the bags and the items hidden under the trailer as coming from his store.

Defendant’s appeal is based on a claim of fundamental error.

“The doctrine of fundamental error is to be resorted to in criminal cases only for the protection of those whose innocence appears indisputably, or open to such question that it would shock the conscience to permit the conviction to stand.” State v. Rodriguez, 81 N.M. 503, 469 P.2d 148 (1970).

Defendant argues that all of the evidence against him is circumstantial. He claims that the state did not submit any direct evidence whatsoever to show that he had been inside the store or that he had touched any of the items found in the bags or the items discovered under the trailer. That the evidence used to convict is circumstantial does not alter the requirement that we view the evidence upon conviction in a manner most favorable to support the verdict. State v. Sedillo, 82 N.M. 287, 480 P.2d 401 (Ct.App.1971).

“It is axiomatic that the burden rests upon the state to prove each and every essential element of the offense charged beyond a reasonable doubt. It is not necessary, however, that the charge be established only by direct evidence. Circumstantial evidence is sufficient if the circumstances point unerringly to the defendant and are incompatible with and exclude every reasonable hypothesis other than that of his guilt.” State v. Slade, 78 N.M. 581, 434 P.2d 700 (Ct.App.1967).

The crime of burglary “consists of the unauthorized entry of any vehicle, watercraft, aircraft, dwelling or other structure, movable or immovable, with the intent to commit any felony or theft therein”. § 40A-16-3, supra. The store manager testified that he had checked the building just before he left the previous evening and that it was securely locked. He further testified that a window found broken shortly after defendant’s apprehension had not been broken the evening before and that no one, including the defendant, was authorized to enter the store after closing time.

The defendant was seen near the store in the early morning when all the businesses were closed. He ran when a police officer attempted to stop him for questioning and while running dropped two bags which were found to contain merchandise taken from the store. We conclude that this evidence was sufficient, albeit circumstantial, for the jury to infer that defendant was the one who entered the store and took the merchandise.

Notice of appeal in this case was filed on April 5, 1972 and on the 6th, H. Gregg Privette was appointed to represent the defendant on appeal. A thirty day extension to file the transcript was granted and it was filed on July 25th. Defendant’s brief-in-chief, submitted pro se was filed on August 2 and the State’s answer brief on September 1. On September 5 defendant’s court appointed attorney filed a supplemental brief which the State moved to strike on the grounds that it was not timely filed and that a request to do so by way of motion and supporting brief had not been filed. Action on the motion was reserved until the case was considered on its merits. There is nothing contained in the supplemental brief which would or should compel our disregarding the rules of this court. The State’s motion is sustained and the supplemental brief is stricken.

Defendant had a fair trial. There is substantial evide'nce in the record to support the conviction and none of his essential rights were violated. We can find no fundamental error.

We affirm.

It is so ordered.

HENDLEY, J., concurs.

SUTIN, J., specially concurring.