State v. Petree

*448 HALL, Chief Justice

(dissenting):

I premise my dissent upon the following time-honored rule of appellate review:

It is the exclusive function of the jury to weigh the evidence and to determine the credibility of the witnesses, and it is not within the prerogative of this Court to substitute its judgment for that of the factfinder. 1 [Emphasis added.]

The main opinion reaches a conclusion contrary to that of the jury and trial court by substituting the judgment of this Court, as to the weight and sufficiency of the evidence for that of the jury, in direct contravention of the foregoing.

The standard of review to which this Court is bound when faced with insufficiency of evidence claims was very recently stated in State v. McCardell: 2

This Court will not lightly overturn the findings of a jury. We must view the evidence properly presented at trial in the light most favorable to the jury’s verdict, and will only interfere when the evidence is so lacking and insubstantial that a reasonable man would not possibly have reached a verdict beyond a reasonable doubt. We also view in a light most favorable to the jury’s verdict those facts which can be reasonably inferred from the evidence presented to it. “Thus, intent to commit [a crime] .. . may be found from proof of facts from which it reasonably could be believed that such was defendant’s intent.” [Citations omitted.]

This Court also adheres to the general appellate rule that a trial court’s judgment has a presumption of validity in an appellate court. We held in Burton v. Zions Cooperative Mercantile Institution: 3

There is a presumption that the judgment of the trial court was correct, and every reasonable intendment must be indulged in favor of it; the burden of affirmatively showing error is on the party complaining thereof.

I have no quarrel with the proposition that this Court has the prerogative to determine the sufficiency of the evidence. However, in doing so, the main opinion fails to follow the more fundamental rule that requires us to view the evidence and all inferences to be drawn therefrom in a light most favorable to the jury verdict. Rather, it assumes the role of fact-finder, surveying the evidence in the record and drawing therefrom independent conclusions as to its weight, sufficiency and effect. Such is not the role of this Court.

The main opinion concludes that a relationship did not exist between defendant and the victim by reason of the fact that defendant had visited the victim’s home on only one occasion prior to December 12, 1977. This conclusion does not reflect a view of the evidence in the light most favorable to the jury’s verdict. The fact that defendant’s “one” visit occurred the very day before, the victim disappeared could reasonably have prompted the jury to infer that some form of relationship was developing or had developed between defendant and the victim.

In an attempt to cast doubt as to defendant’s being the perpetrator of the offense, the defense presented evidence that Miss Ady’s plans on the evening of her disappearance included a visit to one Ken Perkins. The defense intended thereby to implicate Ken Perkins as the person described by defendant as having long, blonde hair, with whom the victim allegedly left on the eve of her disappearance.

The testimony regarding Ken Perkins was shown to be unreliable and inconsequential, and therefore apparently disbelieved by the jury. 4 Inasmuch as this was *449 the only evidence presented by the defense of an alternative suspect, and it failed, defendant, being the last person positively seen with the victim, was left as the only possible and viable suspect. Therefore, contrary to the conclusion reached in the main opinion, the failure of defendant’s evidence to implicate Perkins does add strength to the evidence against defendant as the perpetrator of the crime.

The State’s evidence showed that defendant abruptly left town the very day the victim was reported missing. According to the record, defendant called his sister in Las Vegas, Nevada, on the night of December 12, 1977, at approximately 8:00 p.m. (only two hours after he had been seen with the victim), and again on the following morning. He told her of his distressful situation at home and at school and asked her if she would come at once and get him. She drove from Las Vegas that very day (December 13), and took defendant back to her home, where he remained until he was returned to Cedar City by his older brother four days later.

The unexplained and undisputed evidence of defendant’s departure from Cedar City immediately following the victim’s disappearance gives rise to an inference of his guilt. 5 This Court has held:

Flight and concealment immediately following the commission of a crime are both elements which may be considered as evidence of implication in that crime. 6

The jury could therefore draw an inference of guilt from defendant’s abrupt departure from the state.

The main opinion draws the conclusion that defendant’s statements to his relatives concerning the content and cause of his nightmares were not actual admissions, but rather were mere accounts of dreams bearing insufficient weight to support an inference of defendant’s guilt. However, it is not this Court’s prerogative to draw such conclusions and thereby substitute its judgment as to the weight and sufficiency of evidence for that of the jury. The jury, upon weighing the testimony regarding defendant’s statements in conjunction with the other evidence, deemed the statements to be supportive of the inference of guilt. Furthermore, the conclusion that defendant’s statements were mere accounts of dreams, rather than of an actual occurrence, is not supported by the record, nor does it reflect a review of the facts in “a light most supportive of the findings of the trier of fact.” Also, the main opinion assumes that the accounts of his dreams could not, under any circumstances, give rise to an inference of guilt. Here again, it is not for this Court to make such an assumption. Particularly is this so under the facts and circumstances of this case.

A thorough and exacting review of the record, in a light most favorable to the jury verdict, reveals certain inconsistencies and inaccuracies in the analysis of the evidence in the main opinion regarding defendant’s statements. The first witness to testify of defendant’s confessions was James Back-stoce, the defendant’s brother-in-law. 7 The *450 main opinion quotes Mr. Backstoce’s testimony and states that it “clearly refers solely to the defendant’s explanation of the dream that had awakened him.” This statement is not accurate. Mr. Backstoce indicated that defendant, himself and his wife (defendant’s sister) had a discussion concerning the missing girl (Phyllis Ady) after being awakened by one of defendant’s nightmares. In the context of that discussion, i.e., regarding Phyllis Ady, Mr. Back-stoce testified that defendant related to them the following condemning statement: “Well, John [defendant] said that he was walking the girl home and the girl slapped him and that was the last thing he remembered till he woke up taking a bath in the tub.” Contrary to the conclusion reached in the main opinion, no mention at all was made of dreams. The statements in the conversation refer to an actual occurrence, and Phyllis Ady is definitely the subject of the conversation.

The next witness called by the State to testify concerning defendant’s statements was Alisa Backstoce, defendant’s sister. 8 Although the main opinion concludes that her testimony refers entirely to the content of the defendant’s dreams, it admits that part of her testimony could be interpreted to refer to an actual occurrence. Mrs. Backstoce’s testimony regarding the conversation between herself, her husband and defendant at the kitchen table after his second nightmare, is for the most part consistent with that of her husband. However, unlike her husband’s testimony, she refers to the matter as a dream. It is noted, also, that her testimony includes an additional part of the dream that Mr. Backstoce did not mention: the girl’s folks had come to defendant’s house searching for her. This correlates with the fact that Mrs. Westman went to the defendant’s house on the eve of December 12 in search of Phyllis Ady.

Perhaps the most important part of Mrs. Backstoce’s testimony is that part which the main opinion regards as being subject to interpretation that it refers to an actual occurrence. After her account of her brother’s statements concerning his nightmares, Mrs. Backstoce was asked if the defendant said anything else about the girl. Her answer was: “Later he said he thought he had hurt or killed a girl, but he wasn’t sure.” (Emphasis added.) This statement, when considered in light of Mr. Backstoce’s testimony that the conversation at the kitchen table involved the “missing girl,” could reasonably and justifiably be interpreted as referring to an actual occurrence involving the victim. Notwithstanding this interpretation is most consistent with the jury’s verdict, and furthermore is acknowledged by the main opinion, it is rejected by the Court.

The third witness to testify regarding the alleged admissions was the defendant’s brother, Robert Petree. Robert Petree, who was living in California at the time of the incident, was contacted by the Cedar City Police and questioned as to the whereabouts of his brother, the defendant. He was informed that his brother was being sought out for questioning regarding the disappearance of Phyllis Ady, and he pledged his assistance in finding his brother and returning him to Cedar City.

*451 He eventually found his brother at his sister’s house in Las Vegas, Nevada. Upon confronting defendant, he told him that the police were searching for him in connection with the Phyllis Ady disappearance and that he was going to have to return to Cedar City. Defendant expressed his unwillingness to return.

In defendant’s presence, his sister told Robert Petree about the nightmares. A conversation then ensued between defendant and Robert. Robert did not ask him specifically about the dreams; . he rather asked him what was bothering him. (Keep in mind that Robert had just informed defendant that the police were searching for him in connection with the Phyllis Ady matter.) Defendant’s response, as Robert relates it, was not in reference to a dream at this point in the conversation. 9 Walking through the field, being slapped and blacking out appear to be the facts. After these facts are stated, the account of the dreams begins. 10 The account is incoherent and consequently very difficult to interpret. 11 It is not clear whether defendant blacked out in his dream or blacked out and then began to dream. The State argued that the black out occurred at the time defendant killed Phyllis Ady, and that the dreams that he had hurt or possibly killed her were mere fill-ins of the actual event. This reasoning is conceivable, especially in light of the testimony given by Debra Wilson concerning a later statement made by defendant, which was totally unrelated to the dreams, infra.

The main opinion emphasizes the fact that on. cross-examination, Robert Petree told defense counsel that his testimony was the account of a dream that defendant had. However, the foregoing analysis of his testimony, being an analysis favoring the jury’s verdict, reveals that only a part of his answers actually referred to the defendant’s dreams; the remainder were clearly outside the dream context.

Also proffered by the State as an admission of defendant’s guilt was a statement he made to Debra Wilson. 12 Miss Wilson had dated defendant in 1979 and 1980 while he was living in California. She testified that he told her he had gotten into a fight with a girl in Utah, and that he had gone home afterwards and could not remember anything. No mention was made of any dreams. Defendant simply related the incident as an actual occurrence.

The main opinion considers Debra Wilson’s testimony to be inconsequential, and furthermore, determines that it “adds nothing of substance on this issue.” I cannot agree. When considered along with the testimony of Mr. and Mrs. Backstoce and Robert Petree, and when viewed in a light most favorable to the jury’s verdict, it reasonably supports an inference of defendant’s guilt. Because there was no doubt that defendant was relating an actual occurrence to Debra Wilson, it would have been reasonable for the jury to conclude that defendant’s statements to the other three witnesses concerning an altercation with a female and a black out, or lapse of *452 memory, were not mere products of his imagination derived from dreams, but rather actual admissions of definite occurrences. To sustain such a conclusion would certainly not require undue stretching of the eviden-tiary fabric.

Although it is not absolutely clear from the record that all of defendant’s statements referred to an actual occurrence, it was clear beyond a reasonable doubt to the jury, as they sat and listened first hand to the witnesses, that these statements, be they accounts of dreams, actual occurrences or a mixture of both, implicated deféndant as the perpetrator of the homicide. This Court has noted that:

[I]t is not the function of an appellate court to make findings of fact because it does not have the advantage of seeing and bearing the witnesses testify. 13 [Emphasis added.]

Accordingly, this Court should adopt an interpretation of these statements consistent with the jury’s findings and ultimate verdict.

A fact wholly ignored by the main opinion, yet one which definitely lends credence to the trial court’s judgment, is that defendant was known to have an explosive temper. Mr. Paul Jeffries, a tenant at defendant’s home, gave testimony of this fact on behalf of the State. This fact, coupled with the foregoing admissions, permits an inference that when defendant was slapped by the victim he lost his temper, reacted violently and took the victim’s life.

In conclusion, the main opinion suggests that even if the evidence were sufficient to prove that defendant caused Phyllis Ady’s death, it is not sufficient to prove that he did so “intentionally or knowingly,” as required for a conviction of second degree murder.

This Court recognizes the elementary principle of criminal law that specific intent may and ordinarily must, be proven by circumstantial evidence. 14 An appropriate and recent articulation of this rule is:

[Ijntent may be proven and often must be proven in criminal prosecution by circumstantial evidence and the reasonable inferences to be drawn therefrom. The weight to be ascribed to such evidence is a determination within the province of the jury. 15

This is not a case of first impression in this jurisdiction. 16 The law in Utah, as well as in most jurisdictions, clearly permits a conviction of second degree murder and proof of the elements thereof based on inferences drawn from surrounding circumstances. 17 The issue is simply whether the facts surrounding this case and the evidence proffered by the State provided the jury with a reasonable basis from which to draw such inferences.

In the instant case, the State showed that Phyllis'Ady’s body was forced into the carrot pit in a reverse fetal position and partially buried to avoid detection. These facts certainly permit a reasonable inference that defendant’s conduct was animated by the specific intent necessary for second degree murder. Furthermore, Paul Jeffries, a tenant at defendant’s home, testified that defendant had an explosive temper. This fact, coupled with defendant’s admissions in which a girl had slapped him, would support a reasonable inference that at the moment he was slapped, and in his anger, he formed the intent to kill Phyllis Ady or knew that his subsequent conduct would result in her death. Viewing the evidence and reasonable inferences there *453 from, as well as the inference that an actor generally intends the ultimate consequences of his acts, 18 in a light favorable to the jury verdict, defendant has simply failed to show that the evidence was “so inconclusive or insubstantial that a reasonable person must have entertained a reasonable doubt” that the State proved intent for second degree murder. Therefore, the jury verdict and the judgment rendered thereupon should be left undisturbed.

I would affirm the judgment and sentence of the trial court.

DURHAM, J., concurs in the dissenting opinion of HALL, C.J.

. State v. Lamm, Utah, 606 P.2d 229, 231 (1980).

. Utah, 652 P.2d 942 (1982). See also State v. Romero, Utah, 554 P.2d 216 (1976); State v. Lamm, supra n. 1 .

. 122 Utah 360 , 259 P.2d 514 , 518 (1952). See also People v. Miller, 78 Cal.Rptr. 449 , 78 Cal.Rptr. 449 , 455 P.2d 377 (1969).

. Christa Allred’s testimony, being the only testimony regarding Miss Ady’s acquaintance with Ken Perkins, was countered by the following: The State showed that the house where *449 Perkins had resided had been torn down since early August, 1977, and that Perkins had left Cedar City sometime prior to that date. The State also introduced into evidence a mug shot of Perkins, which was identified by the Cedar City Police Chief. Miss Allred, having been called to the witness stand once and having then testified that she knew who Perkins was and what he looked like, was called back to the stand and asked if she could identify the person in the mug shot. She could not. Her failure to identify the individual as Perkins cast a shade of unreliability on her information and testimony regarding him. Furthermore, the mug shot revealed Perkins’ hair color to be black, thus precluding an inference that Perkins was the same person described by defendant as the one with whom he last saw the victim.

. See State v. Hardison, N.M.App., 467 P.2d 1002 (1970); State v. McCormick, 28 Or.App. 821 , 561 P.2d 665 (1977).

. State v. Simpson, 120 Utah 596 , 236 P.2d 1077, 1079 (1951). See also State v. Marasco, 81 Utah 325 , 17 P.2d 919 (1933).

. The pertinent part of Mr. Backstoce’s testimony reads as follows:

Q. Mr. Backstoce, again, what was said and by whom at this conversation?

A. The things we were discussing with Johnny and, of course, the girl that was missing. And during the discussion—

*450 Q. Okay, would you please tell us who said what.

A. Well, John said that he was walking the girl home and the girl slapped him and that was the last thing he remembered till he woke up taking a bath in the tub. [Emphasis added.]

. Mrs. Backstoce’s testimony, in pertinent part, reads:

Q. Mrs. Backstoce, can you tell me in substance and effect what was said and by whom in this conversation around your kitchen table?

A. We asked Johnny what his nightmares was about. He said he was having a nightmare about walking with a girl and she slapped him and that’s all he remembered, and then waking up taking a bath and her folks, the girl’s folks pounding on the door wanting to know where she was.

Q. All right. Did he say anything else about the girl, other than just what you’ve told us? A. Later he said he thought he had hurt or killed a girl, but he wasn’t sure. [Emphasis added.]

. “Well, he proceeded to tell me that he was walking through a field with — I took it as a young girl. He didn’t say what girl or who it was, but she slapped him. He blacked out. And then he goes on from there to say about the dreams.”

. “And then he goes on from there to say about the dreams.” (Emphasis added.)

. “What he told me about the dream, that when he blacked out and he started to dream that he — his words were he thought he hurt her. He thought he might have killed her.” (Emphasis added.)

.The relevant portion of Miss Wilson’s testimony is as follows:

Q. Again, Miss Wilson, can you tell me in substance and effect what was said and by whom in this conversation ....

A. He had told me that he had gotten in a fight with a girl in Utah. He didn’t mention any names. And he came home and he couldn’t remember nothing afterwards.

Q. All right, did he say anything else about what condition he was in when he came home?

A. Just that he remembered getting in a fight and I guess he had blood on his shirt; that was what was mentioned, and he couldn’t remember nothing. [Emphasis added.]

. Rucker v. Dalton, Utah, 598 P.2d 1336, 1338 (1979). See also Mendelson v. Roland, 66 Utah 487 , 243 P. 798 (1926).

. See State v. Murphy, Utah, 617 P.2d 399 (1980); State v. Kennedy, Utah, 616 P.2d 594 (1980); State v. Cooley, Utah, 603 P.2d 800 (1979).

. State v. Wilkins, 1 Hawaii App. 546 , 622 P.2d 620, 624 (1981).

. State v. Canfield, 18 Utah 2d 292 , 422 P.2d 196 (1967).

. Id. See also State v. Wilkins, supra n. 16; State v. Woods, 222 Kan. 179 , 563 P.2d 1061 (1977).

. State v. Walton, Utah, 646 P.2d 689 (1982).