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State v. Owens4/10/2002
death. See People v. Memro, 905 P2d 1305, 1347 (Cal 1995), cert. denied sub nom Memro v. California, 519 US 834, 117 SCt 106, 136 LE2d 60 (1996) (method of killing alone can sometimes support a conclusion that the evidence sufficed for a finding of premeditated murder). The record finally reflects that the body was left in a position that indicated an attempt to conceal it. Attempts to conceal or dispose of evidence may also support an implicit finding of premeditation. Helmer, 1996 SD 31, , 545 NW2d at 478. We find that there was sufficient circumstantial evidence of premeditation to submit this case to the jury.
[ .] Owens also argues that the evidence was insufficient to establish the felony murder (robbery) charge. However, recent possession of stolen property (the rings) is competent and relevant evidence upon the issue of guilt. State v. Brown, 285 NW2d 848, 851 (SD 1979). In fact, mere possession of stolen property is sufficient to sustain a robbery conviction. State v. Patman, 189 NW2d 620, 622 (Iowa 1971); People v. Gordon, 231 NW2d 409, 412 (Mich 1975). Here, Owens was in possession of Ross' rings, and there was an abrasion on one of her fingers from which a ring was taken. This evidence, together with Ross' death, was sufficient to permit the jury to consider the charge of robbery by the threat of force or fear of immediate injury.
[ .] Owens finally argues that there was insufficient evidence to submit the charge of felony murder (in the course of rape or attempted rape). However, the victim was naked from the waist down and there was evidence of abrasions on each side of the entrance to her vagina. Although the abrasion testimony was disputed, Owens admitted having sexual intercourse with Ross. The physical evidence, along with Owens' admissions, were sufficient to submit this charge to the jury.
[ .] 11. Whether the trial court should have granted Owens' motion for a mistrial.
[ .] The trial court's denial of a motion for mistrial is reviewed under the abuse of discretion standard. State v. Winkler, 260 NW2d 356, 368 (SD 1977).
[ .] Owens argues that the prosecutor acted improperly by using the word "murder" while questioning a witness. Owens also objected to testimony that the videotapes had been edited. Owens contends these two occurrences, together with the pre-trial publicity and the trial court's other rulings, called into question the fundamental fairness of the proceedings. We disagree.
[ .] During the trial, one of the state's attorneys asked a detective whether he was familiar with the scene "where the murder occurred." The trial court found that the reference to "murder" was just a passing comment. In addition, the trial court gave the jury a cautionary instruction. In its admonition, the trial court reiterated its preliminary instructions that the lawyers' questions were not evidence; that the jury should not consider anything that the lawyers said as evidence; that the lawyers could not express opinions; and that the comments of the deputy state's attorney should be disregarded. This cautionary instruction was clearly adequate to cure any possible prejudice that may have resulted.
[ .] The evidence of tape editing was introduced to explain why there was a "flick" of no tape when the videotape was played. A detective explained that either the VCR had to be stopped or there were edits in the video. After reviewing the video testimony, the trial court observed that there was no unfair prejudice to Owens. The trial court noted that most people would probably "figure out" that there was some editing of the tapes just by watching them. We find that the trial court was correct in its assessment and that no p
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