State v. Runge

263 N.W.2d 876, 1978 S.D. LEXIS 306

• Court: South Dakota Supreme Court
• Decided: March 20, 1978
• Docket: 11833, 11850, 11865, 11869, 11870 and 11876
• Status: Published

Opinions

CHEEVER, Circuit Judge.

Shortly before dawn on June 1,1975, Mrs. Ed Liddeke of Mitchell, South Dakota, was awakened by what she described as a metal-like noise outside her bedroom window. She thought someone was tampering with their automobile which was parked just outside the bedroom. She woke her husband; the noise was repeated. She then got out of bed to go to the phone to report the matter to the police. The telephone had a long cord on it and after dialing the call, she returned to the bedroom door, looking out of the window of her bedroom while she talked to the dispatcher. At that time, she noticed an individual standing by the east side of the South Side Liquor Store which she testified was approximately 40 feet from her bedroom window. After completing the call, she continued to watch this person and testified that at one time when a couple of trucks were going by on the street in front of the liquor store, he “scooted down.” He then went back of the store, then turned around, back to the east side, and walked down a road to the south. Because of the light conditions, she was unable to see this individual clearly but described him as being about the same size as her own son who was 240 pounds and six feet tall. She was unable to describe the clothing that he was wearing.

Within a couple of minutes, Officer Doug Feltman of the Mitchell Police Department arrived at the scene in his patrol car. His testimony was that it was then 4:56 a. m. He drove by the north side of the store and then around the east side where there was a drive-in window. Here he observed that a small pane of glass had been broken out of the window just beside the shuttered drive-in window. He also observed three cans of Budweiser beer on the ground just below the drive-in window. No one was in the area, and after communicating with the dispatcher, he started cruising the area in the vicinity of the liquor store, traveling in an easterly direction. At a point about two blocks from the liquor store, he met a vehicle. He turned around and followed this vehicle for approximately a block and a half. At this point, the vehicle pulled over to the side of the street and stopped. The officer testified he had not turned on his red lights or siren and that the vehicle stopped of its own accord. He pulled up behind the vehicle, got out and walked up to the vehicle. He had a flashlight in his hand and shone the light into the vehicle. He recognized by name the four males but did not know the names of either of the two females who were in the vehicle, although he indicated he had previously seen them. Dennis Runge was driving the vehicle, Becky Kapsch was sitting next to him and Royce Whiting was sitting on the passenger side of the front seat. Vaughn Whiting was on the left side of the rear seat. Becky Bollack was sitting in the middle and Lonnie Whiting was sitting on the right side. When he shone his flashlight into the back seat, he noticed on the floor a large number of cans of Budweiser beer partially covered with two jackets and some cardboard boxes. He also noticed that Lonnie Whiting did not have a shirt on, that he was breathing heavily, and that his right hand was bleeding. About this time, a second patrol car driven by Officer Parrish arrived at the scene. Officer Feltman walked over to Parrish’s vehicle, used his radio to communicate with another patrol car driven by Officer Giedd which was at the South Side Liquor Store. He made inquiry as to whether or not there was any evidence of blood on the window at the store and was advised by Officer Giedd that there appeared to be. He then returned to the stopped vehicle, told the occupants to get out, that they were under arrest for burglary. They refused to get out of the vehicle. He then returned to his vehicle to use the radio and as he did so, all the occupants of the car got out and stood in the street, locking the doors as they did so. Officer Feltman radioed for Giedd to come to their assistance, and he and Officer Parrish then proceeded to put the people from this vehicle into their patrol cars. As they were in the process, he noticed that one of the girls, later identified as Becky Bollack, had walked away from the scene of the stop. When Officer Giedd arrived, they placed one prisoner in his car, gave him a description of the girl who had walked away, and he started to search for her, subsequently locating a girl matching her description a couple of blocks from the scene of the stop. Officer Feltman then went to this area, talked to the girl, identified her as being an occupant of the vehicle and took her name, but he did not place her in custody. The other five defendants were taken to the police station and placed in detention. The automobile was hauled to the police station where the doors were opened and the beer and jackets and cardboard boxes removed.

Later that morning at about 10 a. m., Officer Feltman returned to the area of the South Side Liquor Store, made further examination there, and then drove the general area. At one point, approximately a half block east of the store, he noticed three full cans of Budweiser beer lying on the ground. He then contacted a detective in the Police Department. Together they conducted a further search of the area and located on a machinery parking lot, as they described it, two other areas where there were three cans of Budweiser beer lying on the ground. Near each of these beer cans, they noticed some distinctive footprints. They took photographs of these prints. They later returned to the liquor store, took samples of the broken glass and of the soil and broken glass beneath the window. At a later time, at the jail, clothing was removed from Lonnie Whiting and boots from Lonnie and Vaughn Whiting. A blood sample was taken of Lonnie Whiting. The blood sample, the glass particles, boots, and clothing were subsequently sent to the FBI Laboratory for identification.

During the trial, there was testimony that all six of the defendants had been seen together at Lake Mitchell about midnight prior to the time that the burglary was discovered. Agents of the FBI testified that some of the glass particles and the glass from the window matched glass particles found in the clothing of Lonnie Whiting. They also testified that the blood samples taken from the glass were of the same blood type as the blood of Lonnie Whiting. They further testified that the bootprints observed and photographed on the vacant lot were of the same size and design and approximately the same amount of wear as the boots taken from Lonnie and Vaughn Whiting. The clerk who had locked up the liquor store about midnight on Saturday preceding the burglary testified that there were a number of cases of Budweiser stacked on the floor immediately beneath and behind the drive-in window just in back of the glass portion which had been broken out during the burglary. Photographs taken of the interior of the liquor store the morning after the burglary showed that there were still a number of cases of Budweiser stacked on the floor but that the stack was in disarray and a number of cans had been knocked to the floor along with two cardboard bottoms of beer cases. No one was able to give any testimony as to the exact amount of beer missing from the liquor store.

None of the defendants testified at the trial. All the evidence produced by the State was of a circumstantial nature. All six of the defendants were tried together and the jury returned a verdict of guilty of third degree burglary as to each of the defendants. All defendants have appealed their convictions on various assignments of error.

Each of the defendants assigns as error that the evidence is insufficient to sustain a conviction. The defendant Becky Kapsch urges as error the fact that the court had denied her application for severance of her trial. Error was assigned also alleging that the original arrest by the officer was illegal because he did not have a basis on which to make the arrest. There were other assignments of error but we do not find any merit in them.

Dealing first with the assignment of error that the officer did not have sufficient cause to make an arrest, let us look at the facts at that stage of the case. The officer had received a radio dispatch that the South Side Liquor Store had been broken into. He arrived on the scene very shortly thereafter. He observed a broken window, he observed three cans of Budweiser beer lying on the ground just beneath the window, there was no one in the area, he started to drive, and within a matter of three or four minutes and at a point approximately two blocks from where the break-in occurred, he observed a car. He followed the vehicle. The vehicle stopped of its own accord. He walked up to the vehicle with his flashlight, observed the defendant Lonnie Whiting sitting in the back seat of the car without a shirt, breathing heavily, and with blood on his arm. He observed a large number of cans of Budweiser beer on the floor of the back seat, partially covered by two jackets and some boxes. He radioed back to the scene and was informed by the officer that there was blood present at the scene. This was approximately 5 a. m.

Examining his conduct in the light of the rule laid down by the Supreme Court of the United States in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612, it appears that his acts and conduct were not only reasonable but logical. He had made the observations at the scene of the break-in. He had made the observations at the scene of the stop; he had been supplied with a radio communication. Certainly, this should have been adequate information for him to make a valid arrest of the occupants of that vehicle on a charge of burglary-

We deal next with the contention of Becky Kapsch that the court abused its discretion in not granting her a severance for trial purposes. An examination of the file reflects that Becky Kapsch, by and through her attorney, filed a motion, which was not supported by any affidavits, in which she set forth several grounds as a basis for her belief that she would be entitled to a separate trial. One of them being that there might be certain testimony which would be admissible against the other defendants but which would not be admissible against her. She did not particularize this or any other showing.

SDCL 23-42-4 provides that the court, in its discretion, on an application duly made prior to trial may direct that separate trials be had.

In State v. Strickland, 87 S.D. 522, 528, 211 N.W.2d 575, 579, the court said:

“In the absence of a more particularized showing as to any possible prejudice, we conclude that the trial court did not abuse its discretion in denying the motion for separate trials.”

In this case, the application of Becky Kapsch did not make any particularized showing as to any possible prejudice. The record does not reflect any testimony was introduced which would not be applicable to all of the defendants. We cannot see that the record reflects that there was any prejudice insofar as this defendant was concerned. Inasmuch as this was within the sound discretion of the court, there has been no showing by the defendant in her brief which would lead us to conclude that the court did abuse its discretion.

Going next to the main contention, that is, that the evidence was insufficient to warrant a conviction, we have a more difficult area. All the evidence in this case is circumstantial. Looking specifically at the defendant Lonnie Whiting, it appears that there is more than sufficient evidence to tie him in to the commission of the crime. He was found several minutes after the crime was committed in the close proximity of the crime scene in a vehicle occupied by all of the defendants. He was shirtless and bleeding. His blood type was linked to that found at the scene of the crime. Particles of glass which were removed from his jeans matched glass from the liquor store window. Footprints of his boots were found approximately a block from the scene of the crime.

Looking at the other defendants, all six of them had been observed together at approximately midnight prior to the burglary. They were also together at 5 a. m. on the morning of June 1, when the officer examined the vehicle in which they were riding. The boots of Vaughn Whiting matched the prints on the vacant lot. The window that was broken in at the liquor store was a very narrow window. The officer testified that the actual break in the glass measured approximately one foot by four inches. This would lead to the belief that the beer had been removed can by can from the liquor store. The further fact that the officer discovered immediately underneath the window three loose cans of beer, and later the next morning, three more cans approximately a half-block east of the liquor store, and two groups of three other cans in a vacant lot approximately a block from the liquor store would lead to a conclusion that the beer had been transported by individual cans from the liquor store to the car parked some block away. The physical act of removing approximately 70 loose cans of beer, transporting them from the liquor store to the car would lead one to believe that it was not the work of one individual but, rather, that of a group. The car involved was being driven by Dennis Runge. It was owned by Becky Bollack.

Instruction No. 13 in this case reads in part as follows:

“A person aids and abets the commission of a crime if he knowingly and with criminal intent aids, promotes, encourages or instigates by act or advice, or by act and advice, the commission of such crime, and one who thus aids and abets the commission of a crime such as charged though not present and not directly committing the act constituting the offense is an accessory before the fact and chargeable as a principal.

Ht * * ⅝5 * *

“The mere presence of a person at the commission of the crime does not make him guilty of the crime unless he participates in the crime or aids, abets, or assists another in the commission of the crime.”

The first portion of this instruction bore the stamp of approval of this court in State v. Nelson, S.D., 220 N.W.2d 2. The second portion of this instruction complies with the ruling of the court in State v. Peck, 82 S.D. 561, 150 N.W.2d 725; State v. McCreary, 82 S.D. 111, 142 N.W.2d 240; State v. Henry, 87 S.D. 454, 210 N.W.2d 169; and State v. Bonrud, S.D., 246 N.W.2d 790.

In connection with the instruction given in the Nelson case, this court made the following statement:

“While most of the testimony concerning Nelson’s participation in the offense was necessarily from inmates, its believability was for the jury. The facts and circumstances shown are sufficient, if believed, to permit the jury to find beyond a reasonable doubt that defendant either participated in, or aided and abetted Pickering in the homicide involved.” 220 N.W.2d at 6.

In Bonrud, dealing with the same question, this court stated:

“Presence of the defendant, however, at the scene of a crime, coupled with evidence of companionship and conduct before and after the crime is committed, may raise an inference of guilt. State v. Weinandt, 1969, 84 S.D. 322, 171 N.W.2d 73. Presence is a circumstance that tends to support a finding that defendant is a participant and when considered with other facts and circumstances, may establish guilt. State v. Nelson, 1974, S.D., 220 N.W.2d 2.” 246 N.W.2d at 793.

In this case, the instruction given was a proper one, and we must assume that the jury abided by the same. The facts and circumstances set forth within the evidence are sufficient if believed to permit a jury to find beyond a reasonable doubt that the defendants either participated in or aided and abetted in the commission of this offense.

In Instruction No. 12, the court gave the approved instruction pertaining to circumstantial evidence and cautioned the jury in such instruction as follows:

“To warrant a conviction of crime on circumstantial evidence alone the circumstances taken together should be of a conclusive nature, and tending on the whole to a satisfactory conclusion, and pointing to a moral certainty that the accused committed the offense charged ⅛ * * 11

We believe that there was sufficient evidence before the jury if believed by them to permit them to find beyond a reasonable doubt that the defendants were guilty. We cannot say, as a matter of law, that there is insufficient evidence to convict the defendants in this case after the jury had found them guilty under the proper instructions given.

The judgments of conviction and the orders denying new trials for Becky Bollack and Becky Kapsch are therefore affirmed.

DUNN, C. J., and WOLLMAN, J., concur. ZASTROW and PORTER, JJ., concur in part and dissent in part. CHEEVER, Circuit Judge, sitting for MORGAN, J., disqualified.