Lead Opinion
We consider consolidated appeals by Robert W. Hogie, Jr., from a jury conviction for theft of property and from a following order which revoked his probation on a prior conviction. We hold that Ho-gie’s possession of the recently stolen automobile sufficiently corroborated testimony of two accomplices for the theft conviction. We affirm both the conviction and the revocation.
Hogie was criminally charged with theft of an automobile, a class C felony under NDCC 12.1-23-02(1) and 12.1-23-05(2)(d). During his jury triаl, the State used the testimony of two accomplices who had been separately convicted of the same theft. The accomplices, Mark Buckeye and Jerald Rudolph, gave similar testimony which we summarize here.
Buckeye and Rudolph were drinking with Hogie during the evening of April 10, 1987. Earlier in the week, Hogie had obtained a set of keys to a yellow Camaro parked on the lot of Walt Sanders Chevrolet by breaking into a “lock box” attached to the Cama-ro’s window. In the early morning hours of April 11, the trio decided to steal this auto from Sanders. ■
After taking the Camaro, Hogie drove the threesome to the home of Buckeye’s parents in Edgeley, North Dakota, where they picked up cassette tapes, got money from Buckeye’s brother, and filled the car with gas at a filling station. On the same day, they left Edgeley to drive to Kansas where Buckeye planned to “settle a debt,” meaning that he expected to assault an individual. By alternating drivers during the journey, all three men drove the Cama-ro. They stopped briefly in Frederick, South Dakota, removed a set of South Dakota license plates from another auto, and placed them on the Camaro. After staying overnight at Grand Island, Nebraska, they traveled together to Osbourne County, Kansas, where Buckeye “settled his debt.”
Afterward, Hogie, Buckeye, and Rudolph stopped to eat lunch at a fast-food restaurant in Smith Center, Smith County, Kansas. Hogie entered the restaurant to order, leaving Buckeye and Rudolph in the Camaro. While Hogie was waiting for the food, a Smith County sheriff’s car pulled into the parking lot directly behind the Camaro. Shortly, Sheriff Floyd Bose arrested Buckeye for assault based on a teletype advisory to be on the lookout for a yellow Camaro carrying someone named Buckeye and several other passengers.
After arresting Buckeye, Sheriff Bose had Hogie and Rudolph follow him in the Camaro to his office. There, Sheriff Bose asked about ownership of the Camaro. None of the three claimed the vehicle. Sheriff Bosе asked Hogie whether he had driven the Camaro. Hogie responded that all three men had driven it and that he had driven the vehicle to the restaurant. Sheriff Bose then asked Hogie to sign a consent-to-search form, which Hogie signed. When Sheriff Bose checked the vehicle identification number with the National Information Crime Network, he learned that both the vehicle and the plates were stolen. Later, Hogie was arrested and charged with theft.
After the State rested its case, Hogie moved for acquittal alleging that the State’s corroborating evidence was legally insufficient to submit the case to the jury. The trial court denied Hogie’s motion. The jury returned a guilty verdict. Hogie appealed the conviction.
After Hogie’s conviction, the State moved to revoke Hogie’s probation on a prior suspended sentence for burglary. At the revocation hearing, the State submitted a certified copy of the conviction for theft, certified copies of two other convictions in municipal court, and testimony that Hogie had not yet paid $417 in court-ordered restitution. The trial court revoked Hogie’s probation and imposed a sentence concurrent with Hogie’s sentence for theft. Ho-gie also appealed the revocation.
On appeal, Hogie claimed “that without the testimony of the two accomplices, Bu-dolph and Buckeye, there [was] not sufficient other evidence which ‘tends to connect the defendant with the commission, of the offense,’ theft of an automobile.” Ho-gie contended that the trial court erred in submitting the theft case to the jury because there was “a total lack of any other evidence that [Hogie] was involved in the theft.” Hogie argued further that the probation revocation must be reversed if the conviction for theft is set aside.
Since Sheriff Bose “provided evidence of his observations and Hogie’s own oral and written statements concerning his connection with the [stolen] vehicle,” the State argued that there was enough evidence to allow the jury to weigh the corroboration. The State contended that Hogie’s possession of the stolen car, as evidenced by his driving it, by his admissions about driving it, and by his consenting to the search of it, connected him to its recent theft.
Under North Dakota law, a defendant cannot be convicted of a crime upon the testimony of accomplices alone. NDCC 29-21-14 declares:
A conviction cannot be had upon the testimony of an accomplice unless he is corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense, or the circumstances thereof.
The purpose of corroborative evidence is to demonstrate that an accomplice is a reliable witness and worthy of credit. State v. Haugen,
When an accomplice testifies, the trial court must first determine, as a matter of law, whether other evidence corroborates that testimоny. When the trial court has determined that other evidence corroborates the accomplice’s testimony, the sufficiency of all of the evidence is for the jury to decide. State v. Haugen,
As used in the statute requiring corroboration, “tends” indicates tendency, not certainty. Websters Third New International Dictionary 2354 (1971) says the ordinary meaning of “tend,” in this context, is “to have an inclination toward a particular belief, feeling, or attitude.” Thus, every fact given by an accomplice need not be corroborated. All that is needed is other evidence corroborating one or more material details or facts which tend to connect the defendant with the crime.
It is not necessary that the corroborating evidence “be sufficient, in itself, to warrant a conviction or establish a prima facie case.” Anderson,
We agree that Hogie’s possession of the stolen vehicle in Kansas with plates stolen in South Dakota tended to connect him to the recent theft in North Dakota. It is well established and widely recognized that a jury may infer a defendant’s guilt of theft from his unexplained possession of recently stolen property. The United States Supreme Court described this permissible inference as “a traditional common-law inference deeply rooted in our law” and quoted James Thayer, writing in his Preliminary Treatise on Evidence (1898), who explained that the inference was “the descendant of a presumption ‘running through a dozen centuries.’ ” Barnes v. United States,
Examples are plentiful. In Brown v. State,
The presence of the accomplices in the stolen vehicle does not dispel the inference of complicity. The kind of possession which supports an inference of guilt may be joint. 50 Am.Jur.2d Larceny § 161 (1970); § 4 (“View That Possession May Be Joint”) and § 24 (“Theft of Motor Vehicle,” “Driven By Defendаnt”), Annotation, What Amounts To “Exclusive" Possession of Stolen Goods to Support Inference of Burglary or Other Felonious Taking,
This court has frequently held that a defendant’s unexplained possession of recently stolen property is incriminating. In State v. Rosencrans,
To warrant an inference of guilt from the possession of stolen property, the possession must be personal, recent, unexplained, and must involve a conscious exercise of dominion over the property.
Id. at 847. See also City of Dickinson v. Gresz,
This court has often recognized that incriminating possession of stolen property corroborated testimony of an accomplice. In State v. Smith,
Accordingly, we conclude that the trial court properly submitted all of the evidence to the jury, including the testimony of the accomplices, the corroborating testimony of the sheriff, and the consent-to-search form signed by Hogie. There was sufficient evidence to support the jury’s verdict of guilty. We affirm Hogie’s conviction for theft.
Hogie’s sentence on revocation of probation was concurrent with his sentence for theft, which we have affirmed. The theft conviction alone was sufficient to justify the revocation. Therefore, it is unnecessary for us to consider Hogie’s other arguments about the sufficiency of the evidence for revocation of probation.
We affirm.
Dissenting Opinion
dissenting.
I respectfully dissent.
Recent decisions of this Court, some of which I have authored, may appear to minimize the purpose of the requirement in NDCC § 29-21-14 that the testimony of an accomplice be corroborated in order to convict. But, simрly put, because accomplices are often given reduced sentences or other incentives to testify, the law looks with distrust on their testimony and will not allow a defendant to be convicted on that testimony unless it is corroborated. State v. Kent,
The majority opinion cites numerous authorities for the proposition that possession of stоlen property is sufficient to convict of theft and therefore most certainly must be sufficient corroborative evidence. Those authorities include annotations on subjects such as instructions allowing presumption or inference of guilt from possession of recently stolen property as a violation of a defendant’s privilege against self-incrimination and what constitutes recently stolen property for purpose of inferring guilt from unexplained possession of stolen motor vehicle which, as acknowledged in the majority opinion, involve issues other than that of corroborative evidence. In many instances in the authorities cited the defendant was in sole possession of the stolen property. Where that is the fact of the case, that fact alone may be sufficient corroborative evidence. I might reach that conclusion even in those instances in which the defendant is found in possession of the property with persons other than the accomplice-witnesses. Where, however, the defendant’s “possession” is shared with that of the alleged confessed or convicted accomplices it is too facile a rationale, for the defendant’s presence with the accomplices makes the defendant an easy victim upon which to place all or some of the blame for the crime.
I do not understand that the majority opinion relies upon guilt by association, i.e., that the fact the defendant is found in the company of the accomplices some days after the crime was committed and hundreds of miles away from the place of the crime is sufficient corroborative evidence. If that understanding is correct, then the defendant’s “possession” of the automobile as shared with those accomplices adds nothing of substance to the picture. For example, given the same time and distance as here, if the stolen property was a ring found in the pocket of an accomplice, would that constitute sufficient evidence of corroboration of the accomplice’s testimony that defendant had acted with that accomplice to steal the ring?
More specifically, in dealing with a motor vehicle, there are many ways in which a person can come into possession of the vehicle, some оf which involve innocence on the part of the possessor of the vehicle:
“The possession of an automobile which does not belong to the driver is not so strange, unusual, or unique that it points to guilty knowledge as more likely than innocent knowledge on the part of the driver. The borrowing or leasing of an automobile for temporary use is not an uncommon occurrence. If every person possessing an automobile which they did not own would be held accountable as having knowledge that the automobile was stolen, every person who borrowed a car would be in peril of a conviction for receiving stolen property.” Commonwealth v. Henderson,451 Pa. 452 , 457,304 A.2d 154 , 157 (1973).
That rationale is even more compelling where, as here, “possession” of the automobile is shared with accomplices who are the source of the only evidence that the defendant committed the theft of the automobile. Furthermore, as an annotation at 15 A.L.R.Fed. 856, 859 (1973) discusses, the inference of guilt flowing from possession of a recently stоlen motor vehicle grows weaker as the time of the possession recedes from the time of theft. Thus, if the defendant had been found in the vehicle with the accomplices within a few hours of the theft and not days later and hundreds of miles away from the place of the crime, I might agree that there was sufficient inference to permit the matter to go to the jury.
In State v. Haugen,
We reversed another burglary conviction, observing that:
“We have previously stated that evidence that defendant was in the company of accompliсes or was present at or near the place of the crime shortly before or after the crime was committed may be corroboration that tends to connect defendant with commission of the crime. [Citations omitted.] We do not have such evidence in this case. All we have is speculation as to Haugen’s presence. Speculation is not evidence tending to connect defendant with the commission of the crime.” Haugen, supra,449 N.W.2d at 789 .
In conclusion, I do not believe that the State entered sufficiеnt corroborative evidence to allow the court to submit the case to the jury. If § 29-21-14, NDCC, is to protect a defendant, more than coincidence and speculation are required. The State’s corroborative evidence was too remote in time and place to “tend to connect” Hogie to the theft in Jamestown. If the testimony of the accomplices is to be believed, it appears that the State had more persuasive corroborative evidence available to it which it did not offer into evidence. For example, the State could have entered into evidence the testimony of Dave Buckeye, Mark Buckeye’s brother, or the full-service gas
Because I do not believe there was sufficient corroborative evidence tending to connect Hogie to the crime to submit the case to the jury, I would reverse Hogie’s judgment of conviction for theft.
The second case in this consolidated appeal stems from the district court’s order revoking Hogie’s earlier probation. It is clear from the order that the court considered Hogie’s judgment of conviction for theft, two minor-in-possession convictions and testimony that Hogie had not paid court-ordered restitution which, at the time of the revocation hearing, was not yet due. However, the order did not specify which of the aforementioned grounds the cоurt utilized in revoking Hogie’s probation. Because I am unable to determine from the order whether the court based its decision to revoke the probation solely on the judgment of conviction for theft, solely on the minor-in-possession conviction, or on a combination of all the listed grounds, I would remand the order revoking probation to the district court for reconsideration and instruct the court to consider the grounds for revocation in light of the reversal of Ho-gie’s judgment of conviction for theft.
Notes
. Compare State v. Smith,