A jury convicted defendant of second degree murder of a fifteen-year-old girl who was his high school classmate. He was sentenced to five years to life, and entered upon service of his sentence. On this appeal, he urges that the evidence was insufficient to show that the crime was committed or that he committed it. The prosecution's evidence was essentially undisputed. The parties disagree on the inferences to be drawn from it. The facts are unique.
Phyllis Ady, age 15, was reported missing at 1:00 a.m. on December 13, 1977, just over two and one-half years before the skeleton was discovered. At that time, she was residing with her aunt and uncle, the Westmans, who lived approximately one block from where the body was found. Mrs. Westman and Betty Ady, the victim's mother, identified the ring, jacket, sweater, and pin found with the skeleton as Phyllis's. On the basis of that identification and their testimony that Phyllis was 15 years of age, 5 feet 4 inches in height, had no dental work, but had earlier suffered a fracture of the left forearm that had healed, the jury had ample evidence to conclude that the skeletal remains were those of Phyllis Ady.
The evidence summarized above also met the requirement of corpus delicti, which, we have said, "requires only that the State present evidence  that the injury specified in the crime occurred, and  that such injury was caused by someone's criminal conduct." State v. Knoefler, Utah, 563 P.2d 175, 176 (1977). Accord: State v. Kimbel, Utah, 620 P.2d 515, 517 (1980); State v. Cazier, Utah, 521 P.2d 554, 555 (1974). In this case, the "injury" in the first part of the definition is the death of a human being. As for the second requirement, it is unnecessary to show cause of death or to provide evidence on the specific degree of homicide. The State need only present evidence that the death resulted from criminal conduct rather than by accident or from natural causes. "The criminal agency causing death may be proved by circumstantial evidence and the reasonable inferences to be drawn therefrom." People v. Miller, 71 Cal.2d 459, 78 Cal.Rptr. 449, 459, 455 P.2d 377, 387 (1969). That was done in this case. The concealment of the skeletal remains and the unnatural position of the body provided sufficient evidence from which the jury could conclude that Phyllis Ady died from criminal activity.
This appeal turns on whether there was sufficient evidence for the jury to convict defendant of the crime of second degree murder for "intentionally or knowingly" causing the death of Phyllis Ady. In considering that question, we review the evidence and all inferences which may reasonably be drawn from it in the light most favorable to the verdict of the jury. We reverse a jury conviction for insufficient evidence only when the evidence, so viewed, is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he was convicted. State v. Kerekes, Utah, 622 P.2d 1161, 1168 (1980); State v. Lamm, Utah, 606 P.2d 229, 231 (1980); State v. Gorlick, Utah, 605 P.2d 761, 762 (1979); State v. Daniels, Utah, 584 P.2d 880, 882-83 (1978); State v. Romero, Utah, 554 P.2d 216, 219 (1976).
In view of what is said in the dissent on this subject, we deem it desirable to emphasize that notwithstanding the presumptions in favor of the jury's decision this Court still has the right to review the sufficiency of the evidence to support the verdict. The fabric of evidence against the defendant must cover the gap between the
Viewed in the light most favorable to the jury's verdict, the evidence against the defendant was as follows. At the time Phyllis disappeared, she and defendant were both 15 years of age. They lived about a half block apart on 900 West in Cedar City, she with the Westmans and he with his mother. They attended the same school, but they apparently did not have a dating relationship. Phyllis's aunt testified that before December 12, 1977, defendant had been to their home on only one occasion, the day before, when he merely came to the door to inquire if Phyllis was home.
As she was driven past defendant's house at about 6:00 p.m. on December 12, Phyllis asked to be let off. Mrs. Westman observed defendant, who had been sitting on his porch, walk out to meet Phyllis in the road. Mrs. Westman never saw Phyllis again. When Phyllis had not come home at about 9:00 or 9:30 that evening, Mrs. Westman went to defendant's home but found no one there. Sometime between 10:30 p.m. and midnight, she returned and, when defendant answered the door, asked about Phyllis's whereabouts.
On the evening of December 12, before 8:00, defendant telephoned his sister in Las Vegas. He told her that "he was getting a hassle at home and in school and he wanted to come down." He phoned again the next morning. His sister then drove to Cedar City, picked him up about noon, and drove him back to Las Vegas. Defendant then stayed with his sister and her husband in Las Vegas for about four days.
Aside from whatever inference might be drawn from the fact that defendant was the last person seen with Phyllis before she disappeared and the fact that he left Cedar City the day after she disappeared, the only evidence of defendant's guilt of murder in the second degree were statements he made to three family members during his visit in Las Vegas and a statement he made to a girl friend two years later. There was no other evidence of admissions, no physical evidence, and no motive for the homicide.
All of defendant's statements to family members concerned an experience he had during his four-day visit to Las Vegas. His sister and her husband heard him screaming in the night, before midnight. Concluding that he was having a nightmare, they took him into the kitchen to talk about it. The various witnesses' accounts of what was said are critical, and are therefore quoted here in their entirety.
Alisa Backstoce, defendant's sister, testified as follows:
In context, and by its literal terms, this testimony clearly referred to the content of Johnny's (defendant's) dream, although the last quoted answer might be subject to the interpretation that it referred to an actual occurrence.
The testimony of James Backstoce, which is quoted in the footnote,
Robert Petree, defendant's brother, testified that he went to the home in Las Vegas during his brother's four-day visit to tell him that the Cedar City Police were looking for him to question him about the disappearance of a young girl. Robert told his brother he was going to return him to Cedar City. The testimony continued as follows:
In context, it is clear that the statements related in Robert's testimony were entirely concerned with defendant's dream and not with actual events.
The only other evidence of defendant's guilt came in the testimony of Debra Wilson, a girl who had dated defendant in Las Vegas or California in the winter of 1980,
In response, the defense entered a stipulation that none of the "items" recovered from the clothing in the pit or from a nearby shed matched the hair samples taken from the defendant. A girl friend of Phyllis's testified that when Phyllis left her at about 6:00 on the evening of December 12 she said she was on her way to meet a Ken Perkins, with whom the witness was casually acquainted as a person who lived nearby who wanted to date Phyllis.
The verdict of guilty of murder in the second degree rests entirely on testimony of defendant's meeting Phyllis on the street on the evening she disappeared, his trip to Las Vegas on the day following, and on three witnesses' testimony of defendant's statements to them in Las Vegas. Interpreted most favorably to the prosecution, those statements refer entirely or almost entirely to defendant's descriptions of his strange dream. The testimony that he told a date two years later that he once had a fight with a girl in Utah adds nothing of substance on this issue.
While the evidence was sufficient for the jury to conclude that the death of Phyllis Ady involved criminal activity (the corpus delicti), the evidence was not sufficient to prove, beyond a reasonable doubt, that defendant caused Phyllis Ady's death. Even if the evidence proved that defendant caused her death, it was manifestly insufficient to prove that he did so "intentionally or knowingly," as was charged in this complaint for murder in the second degree. U.C.A., 1953, § 76-5-203(1)(a).
The conviction is reversed and the defendant is ordered discharged from custody.
STEWART and HOWE, JJ., concur.
I premise my dissent upon the following time-honored rule of appellate review:
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.
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.
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.
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.
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 Backstoce, the defendant's brother-in-law.
The next witness called by the State to testify concerning defendant's statements was Alisa Backstoce, defendant's sister.
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.
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.
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.
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
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 defendant as the perpetrator of the homicide. This Court has noted that:
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.
This is not a case of first impression in this jurisdiction.
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 therefrom,
I would affirm the judgment and sentence of the trial court.
DURHAM, J., concurs in the dissenting opinion of HALL, C.J.
Contrary to the interpretation in the dissent, the first answer quoted here makes clear that the entire testimony related to the content of defendant's dream.