Following a jury trial, Kirk DePhilippo was convicted of burglary, 17-A M.R.S.A. § 401 (1983 & Supp.1992), attempted burglary, 17-A M.R.S.A. §§ 152, 401, theft, 17-A M.R.S.A. § 353 (1983 & Supp.1992), and operating a motor vehicle after suspension of his license, 29 M.R.S.A. § 2184 (1978 & Pamph.1992) (Penobscot County, Silsby, J). By his appeal from the judgments entered on the convictions DePhilip-po contends that the trial court erred by refusing to excuse certain jurors who heard another juror make potentially prejudicial comments and challenges the sufficiency of the evidence supporting the convictions of burglary, attempted burglary, and theft. We affirm the judgments.
I.
During a recess on the first day of trial, the court received a message from one of the jurors indicating that she recognized one of the co-defendants, George Walker. The court interviewed the juror in chambers, where she stated that she thought Walker had caused some problems while working on her house the previous summer. The court excused the juror from service. The court then interviewed three other jurors who heard the initial juror express her possible recognition of Walker. The court refused to excuse them and denied DePhilippo’s prompt motion for a mistrial.
DePhilippo contends that the juror’s comments incurably tainted the jury’s impartiality and that the court erred in denying his motion for a mistrial. We have previously stated:
A motion for a mistrial is addressed to the sound discretion of the trial court, and we review a denial of the motion only for an abuse of that discretion.... The trial court should deny a motion for mistrial except in the rare case when the trial cannot proceed to a fair result and no remedy short of a new trial will satisfy the interests of justice. The determination by the trial court of whether the exposure to potentially prejudicial extraneous evidence incurably tainted the verdict of the jury stands unless clearly erroneous.
*1059
State v. Clark,
The court’s actions in this case were entirely appropriate. “When the impartiality of an empaneled juror is called into question, the presiding justice should interview the juror about the circumstances in order to determine whether the juror can remain impartial.”
Latremore v. Latremore,
II.
DePhilippo next contends that the evidence introduced at trial is insufficient to support his conviction of attempted burglary of Roger’s Market in Hudson and, therefore, the court erred in denying his motion to acquit. We review DePhilippo’s challenge to the sufficiency of the evidence in the light most favorable to the State to determine whether a jury could rationally find every element of the criminal charge beyond a reasonable doubt.
State v. Philbrick,
Derek Trench, the manager of the market, who resides one and one-half miles east of the market on Route 43, testified that, after receiving a phone call from Kathryn Grant at approximately 1:00 a.m., he observed a white pickup truck with a very loud muffler speeding east on Route 43. Trench called the Penobscot County Sheriff’s Department, reported a suspected burglary, and proceeded to the market where he observed damage to the lock on the front door.
Deputy Sheriff Joel Phelps, after being informed of possible criminal activity involving the occupants of a light-colored pickup truck, observed such a truck as it travelled east on Route 43, stopped the vehicle and discovered that the license of the driver, DePhilippo, had been suspended. Two other individuals were passengers in the truck. Both Grant and Trench were brought to the scene and identified the truck as the one they had seen and heard just moments earlier. DePhilippo testified on his own behalf and stated that although he did drive past the market on the night in question, he never stopped.
Based on the above evidence, we conclude that the jury could have rationally found beyond a reasonable doubt that it was DePhilippo who committed the attempted burglary at Roger’s Market either as a principal or an accomplice. It was well within the jury's discretion to discredit the testimony of DePhilippo and believe the testimony of Grant, Trench and Phelps. As the evidence was legally sufficient to support the conviction, the court’s denial of DePhilippo’s motion to acquit was not error.
DePhilippo also challenges the sufficiency of the evidence supporting his convictions for burglary and theft at Daniel *1060 McLeod’s Glenburn residence. McLeod testified that he and his wife had been away from Friday, August 10, 1990, until Sunday, August 12, 1990. McLeod testified that several of the items stolen from his residence bore a label unique to armed forces commissaries and base exchanges. The testimony of McLeod’s wife and a supervisor with the Army/Navy Exchange Services corroborated McLeod’s testimony.
Detective Glen Ross of the Penobscot County Sheriff’s Department testified that after receiving a call on August 12, 1990, reporting a possible burglary at the McLeods’ home, he went to the home and observed it had been ransacked. Detective Ross also observed tire tracks that were inconsistent with any of the vehicles owned by the McLeods. Aware of the stop of the DePhilippo vehicle the previous day, Detective Ross ordered the pickup truck impounded. A search of the truck uncovered a bottle of coffee brandy tucked behind the back seat; two cans of tuna fish located in an open cubbyhole and one on the dashboard or floor; cans of soup; and a telescoping antenna from an electrical device found in the back of the open-bed truck. These items were similar to items missing from the McLeods’ residence and many of the food items bore distinctive markings indicating that they were purchased at a military base exchange. Detective Ross also testified that the wheelbase of the truck was similar to the wheelbase of the tracks found at the scene.
The State concedes that its case turns on the application of the inference permitted by 17-A M.R.S.A. § 361(2) (1983):
Proof that the defendant was in exclusive possession of property that had been recently taken under circumstances constituting a violation of this chapter or of chapter 27 shall give rise to a presumption that the defendant is guilty of the theft or robbery of the property, as the case may be, and proof that the theft or robbery occurred under circumstances constituting a violation of section 401 [burglary statute] also shall give rise to a presumption that the defendant in exclusive possession of property recently so taken is guilty of burglary.
Exclusive possession under this section does not mean sole possession, “[p]roof of joint possession is sufficient.”
State v. Durgan,
The fact that the stolen goods were found in a truck both owned and occupied, at the time of the stop, by DePhilippo, sufficiently establishes his constructive possession.
See State v. Mower,
The entry is:
Judgments affirmed.
All concurring.
