State v. Owens

BAKES, Justice.

Defendant appellant Dianne Owens ran a cattle ranch in 1974 and 1975 in the Upper Ford Creek Road area of Clearwater County,. near Orofino, Idaho. In 1974 Mike and Jeannine Martin leased 160 acres of grazing land on Upper Ford Creek Road about 0.8 miles below Owens’ ranch. In late October, 1974, the Martins brought their animals out of pasture from their Upper Ford Creek pasturage and discovered that a white faced, horned, brindle colored heifer cow with their brand lightly applied was missing from the herd. Owens was subsequently charged with theft of the heifer and convicted at a jury trial. She brings this appeal from the judgment of conviction for grand larceny entered following the trial. We affirm.

Defendant Owens raises numerous issues on appeal. Her primary contention is that the state’s evidence was insufficient to prove the corpus delicti, i. e., that the crime charged — grand larceny — actually occurred. She argues that as a result of the state’s failure to introduce evidence sufficient to support a finding that the heifer in question was the subject of a larcenous taking it was error for the trial court (1) to deny her motion for acquittal made at the close of . the state’s case in chief, and (2) to instruct the jury that an unexplained possession of recently stolen property by the defendant permits the jury to infer that the theft was committed by the defendant.

The defendant’s plea of not guilty placed in issue every material allegation made in the indictment. I.C. § 19-1715; State v. Cutler, 94 Idaho 295, 486 P.2d 1008 (1971). One of the material allegations placed in issue by a plea of not guilty is that of the corpus delicti of the crime. State v. Cutler, supra. In a larceny charge, the elements which must be proven include the taking, carrying, driving or leading away, without *635permission, of personal property of another, with the intent to permanently deprive the owner thereof. I.C. § 18-4601; State v. Jesser, 95 Idaho 43, 501 P.2d 727 (1972). Direct or circumstantial evidence which satisfies the factfinder beyond a reasonable doubt that the crime charged has been committed establishes the corpus delicti. State v. Johnson, 96 Idaho 727, 536 P.2d 295 (1975); State v. Kombol, 81 Idaho 530, 347 P.2d 117 (1969).

The evidence presented by the state in its case in chief tending to prove that the heifer was larcenously taken by Owens was as follows. Mike and Jeannine Martin, the animal’s owners, testified that they put the heifer out to summer pasture on their Upper Ford Creek Road land the first week in May of 1974 subsequent to their repairing the pasture’s fences, as required by their lease agreement. Mike Martin testified that the last time he saw the animal was in the second week of October, 1974, when he visited the pasture to check his herd. When the Martins removed their animals from pasture in the last week of October they were unable to find the heifer. The Martins testified that they checked their fences at that time and found them to be in good condition. They stated that they searched their pasture and neighboring lands and made inquiry of ranchers in the area, but were unable to locate the animal. The animal was reported as lost to local law enforcement agencies in early November.

Brady Jones, a 16 year old youth who occasionally worked for defendant Owens, testified for the state in its case in chief that while working for defendant Owens she and one Rick Pederson told Jones that they had discovered a cow alongside Ford Creek Road and had loaded it onto Owens’ pickup truck. Jones further testified that the defendant Owens and Rick Pederson had taken the cow to the ranch of one David Hueth in Weippe, Idaho. Jones testified that he was told the animal was pregnant and that Owens was to receive the calf from Hueth when it was born.

David Hueth testified for the state on direct examination that he received the cow from defendant Owens in late 1974 or early 1975 in exchange for some work he had done for the defendant. A bill of sale from the defendant to Hueth representing sale of the animal to Hueth was admitted into evidence. Hueth testified that the animal was with calf when he received it and that he agreed to give Owens the calf when it was born. Investigation revealed that the animal Hueth received from Owens bore a lightly applied brand registered to the Martins. The Martins identified photographs of the animal Owens sold Hueth as being their animal they had reported missing.

There was substantial evidence presented by the state in its case in chief which, if believed by the jury, would support a finding that the Martin heifer was taken by the defendant Owens without the Martins’ permission and with an intent to permanently deprive the Martins of possession of it. In Idaho, theft of a cow constitutes grand larceny. I.C. § 18-4604(3); State v. Harrington, 92 Idaho 317, 442 P.2d 453 (1968). The trial court’s denial of defendant’s motion for judgment of acquittal made at the close of the state’s case in chief was not error.

Likewise, Owens’ argument that the trial court erred in instructing the jury that the defendant’s unexplained possession of recently stolen property may raise an inference that the defendant committed the larceny is without merit. Once the state submitted evidence which would support a finding that the heifer was stolen, it was not error for the trial court to give the instruction. State v. Ponthier, 92 Idaho 704, 449 P.2d 364 (1969); State v. Haggard, 89 Idaho 217, 404 P.2d 580 (1965); see State v. Sullivan, 34 Idaho 68, 199 P. 647 (1921). The defendant’s participation in a theft may be inferred from the defendant’s unexplained possession of recently stolen property. United States v. Trice, 476 F.2d 89 (9th Cir. 1973); United States v. Martin, 459 F.2d 1009 (9th Cir. 1972), cert. denied 409 U.S. 864, 93 S.Ct. 155, 34 L.Ed.2d 111 (1972). Cf. Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973) (where evidence established that defendant *636charged with receiving stolen property possessed recently stolen Treasury checks payable to persons he did not know and there was no plausible explanation for such possession consistent with innocence, traditional common law inferences arising from possession of recently stolen goods satisfied reasonable doubt standard and comported with due process).

Defendant Owens also assigns as error several rulings by the magistrate made in binding Owens over to district court for trial. She argues that the magistrate erred in failing to dismiss the criminal complaint filed against her. She argues that the complaint failed to adequately describe the animal in question (“one horned, brindle, heifer cow, being the property of Jeannine Martin”) and to properly specify the time that the larceny occurred (“between the middle of October, 1974, and the end of February, 1975”).

A legally sufficient complaint need only be a simple and concise statement of the essential facts constituting the offense charged. I.C.R. 3. I.C. § 19-3901 provides that the criminal complaint must specify “such particulars of time, place, person and property as to enable the defendant to understand distinctly the character of the offense complained of, and to answer the complaint.” However, it is not necessary that the complaint contain a formal or detailed description of the offense charged. “[A]ll that is required is a general description or designation of the offense so that the defendant may be given a fair opportunity to know, by proffered preliminary examination, the general character and outline of the offense for which he is to have an examination.” State v. McKeehan, 91 Idaho 808, 818, 430 P.2d 886, 896 (1967); State v. Woodward, 41 Idaho 353, 238 P. 525 (1925); State v. McGreevey, 17 Idaho 453, 105 P. 1047 (1909). The complaint filed against Owens satisfies that standard.

Owens also argues that the state’s evidence presented at the preliminary hearing did not demonstrate probable cause that a larceny had been committed. It is argued that the state’s evidence showed merely that the defendant possessed a heifer belonging to Mike and Jeannine Martin, but did not prove that Owens participated in the theft as charged.

At the preliminary hearing the state is not required to prove the accused’s guilt beyond reasonable doubt; it need only prove that a crime was committed and that there is probable cause to believe the accused committed it. O’Neill v. State, 92 Idaho 885, 452 P.2d 989 (1969); I.C. §§ 19-804 and -815. The decision of a magistrate that there exists probable cause to bind a defendant over to district court for trial on the charges should be overturned only on a showing that the committing magistrate abused his discretion. State v. O’Mealey, 95 Idaho 202, 506 P.2d 99 (1973); Carey v. State, 91 Idaho 706, 429 P.2d 836 (1967).

We find that the evidence presented by the state at the preliminary hearing supports the magistrate’s decision that the Martin heifer was the subject of a theft and that there was probable cause to believe that defendant committed that crime. The state showed that the heifer reported lost by the Martins was the same animal as that received by David Hueth from defendant Owens in exchange for labor on the Owens ranch. Wade Ralston of the Clearwater County sheriff’s office testified that in the course of his investigation of the loss of the Martin’s heifer, he learned that defendant Owens had taken the animal and sold it to Hueth. Ralston’s examination of the animal sold to Hueth revealed that the animal bore the Martins’ brand. Hueth testified that he had purchased the animal from Owens and produced a bill of sale for the animal made out by Owens. The magistrate was free to disbelieve the explanation presented by Owens in her defense and accept the state’s witnesses’ testimony which supports a finding that the heifer had been stolen and that there was probable cause to believe that the defendant Owens had stolen it.

Owens maintains that the information filed in the district court in this matter *637subsequent to the preliminary hearing and the magistrate’s decision to bind the defendant over for trial should have been dismissed upon her motion. She asserts that the information failed to properly describe the heifer allegedly stolen and the date of the alleged larceny. The information filed in the district court reiterates the allegations set out above which were presented to the magistrate in the complaint at the preliminary hearing.

A legally sufficient information, like a criminal complaint, is a plain, concise and definite written statement of the essential facts constituting • the offense charged. I.C.R. 7(b). A legally sufficient information or indictment must contain “[a] statement of the acts constituting the offense in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.” I.C. § 19-1409(2); I.C. §§ 19-1411 and -1418; In re Winn, 28 Idaho 461, 154 P. 497 (1916).

With respect to defendant’s claim that the time of the alleged offense was not stated in the information with adequate specificity, I.C. § 19-1414 provides that:

“The precise time at which the offense was committed need not be stated in the indictment; but it may be alleged to have been committed at any time before the finding thereof, except where the time is a material ingredient in the offense.”

An information need not contain the precise time at which a crime is alleged to have been committed where time is not a material element of the crime charged. State v. Oldham, 92 Idaho 124, 438 P.2d 275 (1968); State v. Larsen, 76 Idaho 528, 286 P.2d 646 (1955); State v. Rogers, 48 Idaho 567, 283 P. 44 (1929); I.C. § 19-1414. See generally 41 Am.Jur.2d, Indictments and Informations, §§ 115-17 (1968).

The time period in which the state alleged that Owens stole the heifer is in this case four and one half months long. The information alleged that the offense occurred before the running of the statute of limitations; the time of the offense is not a material element of the larceny charge; and the nature of the charged offense, theft of an ambulatory stock animal from summer pasture, is such that the exact date of a larcenous taking would likely not be discovered by the animal’s owners or investigating authorities absent confession by the guilty party. The information filed against Owens in this case was adequate with respect to the time the crime charged was alleged to have occurred.

The physical description of the heifer alleged to have been stolen by Owens is also satisfactory for purposes of the information filed in this case. The purpose of the requirement that an information inform the defendant of the nature of the charges against him is to enable the accused to prepare a proper defense to the charge and to protect himself against a subsequent prosecution based on commission of the same acts. State v. McKeehan, supra; Mollendorf v. State, 67 Idaho 151, 173 P.2d 519 (1946). The information filed against defendant Owens in district court adequately sets out the nature and circumstances of the offense charged and a sufficient description of the animal alleged to have been taken to enable a person of ordinary understanding to adequately know the details of the crime the state charged and intended to prove at trial.

Owens asserts that the state denied her constitutional and statutory right to a preliminary hearing by filing an amended information prior to trial but subsequent to the preliminary hearing and filing of the original information. She argues that it was error for the district court to deny her a preliminary hearing on the amended information. The amended information added one witness to those listed in the initial information and supplemented the description of the heifer defendant was charged with taking by referring to its brand. The criminal charge, the parties, and the property in question were not altered. I.C.R. 7(d) authorizes amendment of an information at any time before verdict “if no additional or different offense is charged and if substantial rights of the defendant are not preju*638diced.” In absence of a showing of prejudice arising from the amendments, defendant’s argument is wholly without merit.

Owens next asserts that the trial court’s failure to grant two of her pretrial motions for disclosure and production of statements made by the state’s witnesses denied her rights to due process and constituted reversible error. Owens argues that she was unaware until trial of the substance of the testimony of Brady Jones and of one Margaret Hepburn and that, as a result, she was unable to properly prepare for the trial.

The district court granted two pretrial discovery motions filed by the defendant. The court on December 9, 1975, granted defendant’s “Motion for Discovery and Inspection Pursuant to I.C.R. 16(a)” and her “Motion Pursuant to I.C.R. 12(d)(2).” These two motions required the prosecutor to make a disclosure of the evidence to which the defendant was entitled under I.C.R. 16. No contention is made by the defendant that the state failed to properly comply with these two discovery orders.

Owens made two other discovery motions which were not granted by the trial court. On November 18, 1975, she filed a “Motion for Disclosure” in which she sought to learn “if any of the state’s witnesses have given testimony contradictory or materially different from that contained in any oral or written statements made by said witnesses and known to the prosecution without regard to whom said statements were made, whether said statements are contained in the prosecution’s or police files or not.” On November 21, 1975, the defendant filed an “Amended Motion for Production of Statements” in which she moved for “an order directing the prosecuting attorney to deliver as soon as reasonably practicable to counsel for the defendant copies of all material and relevant statements (written or otherwise recorded) pertaining to the testimony to be given herein by witnesses to be called by the prosecution at trial.” Neither of these two motions were granted by the trial court, and Owens argues that denial of the motions constituted reversible error.

I.C.R. 16(a) governs generally the discovery rights of a criminal defendant in Idaho. I.C.R. 16(a)(1) enumerates certain types of information to which a defendant is entitled. I.C.R. 16(a)(2)(ii) then provides:

“Except as authorized in this subsection, this rule does not authorize the discovery of statements made by the prosecution witnesses or prospective prosecution witnesses to agents of the prosecuting attorney or to any official involved in the investigatory process of the case.”

Defendant Owens does not argue, nor does it appear to us, that pretrial disclosure of any statements made by the state’s witnesses Jones and Hepburn was required by I.C.R. 16.

The state also has a constitutional duty to disclose to a criminal defendant upon request any evidence exculpatory or favorable to a defendant which would be material to preparation of a defense. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); State v. Brown, 98 Idaho 209, 560 P.2d 880 (1977); State v. Harwood, 94 Idaho 615, 495 P.2d 160 (1972). “The suppression of . exculpatory evidence by a prosecutor [is] a denial of due process.” State v. Harwood, 94 Idaho at 617, 495 P.2d at 162. The defendant’s right to disclosure of evidence in possession of the state, however, extends to evidence tending to exculpate the defendant. “The heart of the holding in Brady, is the prosecution’s suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or punishment.” Moore v. Illinois, 408 U.S. at 795, 92 S.Ct. at 2568, 33 L.Ed.2d at 713.

Defendant Owens’ argument is that the motions for disclosure and for production of witness statements were “absolutely essential” to her defense. She does not assert that the prosecution failed to disclose evidence which was or might be exculpatory to her. The record indicates that the testimony of witnesses Jones and *639Hepburn was completely inconsistent with the defendant’s claim that she was innocent of the charge for which she was tried. Further, our examination of the record shows that the district court on November 25, 1975, granted defendant’s motion for a continuance of the trial. Defendant stated at the hearing held upon her motion for a continuance that her request was made because she believed that Margaret Hepburn would testify differently at the trial than she did at the preliminary hearing. Hepburn had testified on defendant’s behalf at the preliminary hearing, but testified on the state’s behalf against Owens at trial. Defendant’s motion for the continuance was made six weeks before the trial was actually held. The record indicates that she was aware at the time she made her motion for a continuance of Hepburn’s intent to change her testimony. Owens can hardly claim that she was surprised and prejudiced when the state called Hepburn as its witness at trial. Further, the substance of Brady Jones’ trial testimony was presented at the preliminary hearing through the testimony of Wade Ralston, deputy sheriff of Clearwater County. We do not perceive how Owens was prejudiced by the fact that she did not receive statements made by Jones to the prosecution prior to trial in view of Ralston’s disclosure at the preliminary hearing of the substance of Jones’ trial testimony. The trial court did not commit reversible error in denying defendant Owens’ discovery motions, nor was it reversible error for the prosecution to fail to disclose any statements by Hepburn and Jones it may have possessed, even absent a court order directing it to do so.

Defendant Owens argues that the trial court should have granted her motion for a mistrial because of prosecutorial misconduct resulting in prejudice to her. She claims that prejudicial inferences against her were planted when the prosecutor asked one of the defendant’s witnesses, Rick Pederson, whether he had ever stolen any cattle while working for the defendant.

In Idaho a witness cannot be questioned about his participation in wrongful acts having no connection with the matter on trial. State v. Dayley, 96 Idaho 527, 531 P.2d 1172 (1975); State v. Muguerza, 46 Idaho 456, 268 P. 1 (1928); I.R.C.P. 43(b)(6); see also I.C. § 9-1209 (repealed 1975). Hence, it was improper for the prosecution to inquire of witness Pederson about any wrongful conduct he may have participated in that did not culminate in a felony conviction admissible for impeachment purposes. The district court denied defendant’s motion for mistrial following the prosecutor’s alleged improper questioning of witness Pederson. The court ruled that because the witness did not answer the question, any prejudicial inferences resulting from the asking of the question could be cured by instructing the jury to disregard the question and to avoid speculating how the witness may have answered if allowed to do so.

The trial court is in the best position to judge the prejudicial effect caused by an improper but unanswered question. Our prior cases have held that it must be presumed that a jury obeyed the trial court’s instructions to disregard an improper question and to avoid speculation as to what the witness might have answered if permitted to do so. See State v. Rolfe, 92 Idaho 467, 444 P.2d 428 (1968); State v. Urie, 92 Idaho 71, 437 P.2d 24 (1968). A motion for mistrial is directed to the trial court’s sound discretion and the court’s ruling thereon will not be disturbed unless it is shown that the trial court abused its discretion and that, as a result, the defendant’s rights were prejudiced. State v. Ramsbottom, 89 Idaho 1, 402 P.2d 384 (1965). Where the witness was not allowed to answer the question and where the trial court, expressing its belief that an instruction would be sufficient to correct any prejudicial inferences which may have resulted from the question, instructed the jury to disregard the question, we do not find that the trial court’s denial of defendant’s motion for a mistrial constituted an abuse of its discretion.

Owens also alleges that her motion for mistrial should have been granted because the state called two witnesses in its *640case in chief who admitted to having perjured themselves in prior proceedings. However, the fact that the state’s case in chief may have consisted in part of testimony by witnesses who admitted to having testified falsely at the preliminary hearing did not compel the trial court to grant defendant’s motion for a mistrial. In Idaho the credibility of a witness is to be considered by the finder of fact in its determination of the weight to be given the testimony by the witness. The fact that a witness called by the state has admitted perjuring himself is certainly relevant to a determination of the credibility to be afforded that witness’s testimony. However, the witness’s testimony is admissible into evidence. I.C. §§ 9-201 to -203; Big Butte Ranch, Inc. v. Grasmick, 91 Idaho 6, 415 P.2d 48 (1966); State v. Orr, 53 Idaho 452, 24 P.2d 679 (1933).

We have examined appellant’s other assignments of error and have concluded that none of the trial court’s rulings concerning those assignments constituted error.

Judgment affirmed.

DONALDSON, C. J., and SHEPARD, McFADDEN and BISTLINE, JJ., concur.