State v. Houle

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 88-082

                              JUNE TERM, 1991


State of Vermont                  }          APPEALED FROM:
                                  }
                                  }
     v.                           }          District Court of Vermont,
                                  }          Unit No. 2, Chittenden Circuit
                                  }
Thomas J. Houle                   }
                                  }          DOCKET NOS. 360/61-1-87CnCr


             In the above entitled cause the Clerk will enter:

     Defendant appeals from a conviction after jury trial for attempted
grand larceny, 13 V.S.A. {{ 9, 2501.  We affirm.

     Defendant was charged with breaking into a car on a Burlington street
after being apprehended while attempting to flee with an attache case that
he had allegedly removed from the car.  In the attache case was a necklace
valued at $1,200.  He was convicted, and the present appeal followed.

     Defendant argues first that the court erred in failing to instruct the
jury that since the charge was attempted grand larceny, the State had to
prove that defendant intended to steal something valued at more than $500.

     The State responds that the under the larceny and attempt statutes,
taken together, the State need not prove intent to steal an article of a
particular value, but rather must simply prove an intent to steal.  The
classification, under this theory, results from the value in fact of the
objects stolen, just as with the completed crime of larceny.

     The State's argument is correct.  "A person steals if he takes property
from one in lawful possession without right, with the intention to keep it
wrongfully."  State v. Reed, 127 Vt. 532, 538, 253 A.2d 227, 231 (1969).
The intent to commit grand larceny is not conditioned on a showing that the
defendant was specifically aware of the value of the object stolen, and
this defendant suggests no rationale why the rule should be different where
the crime is not completed and the resultant charge is attempted grand
larceny.  The question has not yet arisen in Vermont, but the result is
clear in jurisdictions that have considered the issue.  See State v.
Delmarter, 94 Wash. 2d 634, 618 P.2d 99 (1980) (en banc), where the court
held:

            Initially, defendant contends that to be convicted of
          attempted first-degree theft, the state must prove he
          knew the property he attempted to steal had a value in
          excess of $1,500.  Defendant confuses knowledge with
          intent.  [The Washington first-degree theft statute]
          does not include as an element of the crime that
          defendant must have knowledge of the value of the
          property.

Id. at 637, 618 P.2d  at 101; see also State v. Redding, 213 Neb. 887, 892-
93, 331 N.W.2d 811, 814 (1983) (affirmance of conviction for attempted theft
of property of the value of more than $1,000, where the jury determined that
there was an attempted theft, and evidence indicated that the object was
worth $12,000). (FN1)

     Defendant also argues that the State made untimely disclosure of
information furnished to the State by a co-defendant, Erick Wallace, in
violation of V.R.Cr.P. 16(b)(2).  When he was arrested, Wallace made a
statement implicating defendant, which was supplied to defendant, who did
not then depose Wallace.  Wallace was called as a witness late in the
State's case, and when he testified to a complete memory loss, the State
advised defendant for the first time that a week earlier, Wallace had made
statements exculpating defendant.  Wallace also told an investigator that
he had made similar exculpatory statements when he pled guilty to charges
arising out of the same events.

     After defendant objected and moved for a mistrial, the court gave
defendant an opportunity to depose Wallace, and he did so.  In the
deposition Wallace repeated the exculpatory statements.  The court granted
defendant a recess to evaluate the deposition, and after a 25-minute recess
and a further motion for mistrial, which was denied, defendant opened his
case-in-chief.  When defendant called Wallace as a witness, he reverted to
his initial statement to the police implicating defendant, and defense
counsel sought to impeach him with his inconsistent statements.

     The State concedes the late disclosure under Rule 16(b)(2), but relies
on State v. Sird, 148 Vt. 35, 528 A.2d 1114 (1987), where we held that
"[a]lthough a prosecutor has an obligation to disclose to a defendant a
wide range of material and information, the mere fact that a violation of
this duty has occurred is not dispositive.  A violation of the rule must be
coupled with a showing of prejudice in order to produce reversible error."
Id. at 39, 528 A.2d  at 1116 (citations omitted).

     Defendant in the present case has not demonstrated prejudice.  He was
able to depose Wallace, to examine him as a witness, and to expose to the
jury the several twists and turns in his account of the events in question.
Defendant speculates that "[h]ad Appellant been provided with the statement
[of Wallace] prior to trial, and therefore taken the opportunity to depose
Mr. Wallace, there is more than a reasonable probability that Mr. Wallace
would have testified favorably for Appellant."  Wallace testified
unfavorably for defendant almost immediately after offering a contrary, and
more favorable, version of events during the mid-trial deposition.  Defend-
ant offers no reason why Wallace would have been more faithful to a
deposition given before trial.

     We are more troubled by defendant's argument that he might have
conducted a more effective cross-examination of the State's witness with
Wallace's deposition in hand, but defendant does not explain how that cross-
examination might have impeached the testimony of any of the State's
witnesses.  At most it would have offered an account of the facts based on
Wallace's deposition, countering the statement Wallace made when he was
arrested.  With or without cross-examination, the jury was fully aware of
Wallace's inconsistent statements, and a review of the record does not
indicate that defendant was prejudiced by the time and manner in which this
evidence was elicited.

     Finally, defendant argues that the trial court omitted from the jury
charge any reference to the value of the goods taken.  A review of the
record reflects that defendant never requested such an instruction, and it
may not be raised for the first time on appeal.  Moreover, the evidence on
the value of the pearls was not contested at trial, and the trial court
might well have concluded that defendant had conceded their value -- a fair
inference from the record as a whole.  Any omission from the instruction
concerning the value of the pearls was, at most, harmless error.

     Affirmed.






                                   BY THE COURT:



                                   Frederic W. Allen, Chief Justice


                                   Ernest W. Gibson III, Associate Justice


[ ]  Publish                       Denise R. Johnson, Associate Justice

[ ]  Do Not Publish




FN1.    The instant case does not present the question of what degree of
attempted larceny may be charged where the attempt is thwarted before the
identity of the specific property which is the subject of the attempted
larceny becomes clear, but where the information otherwise alleges all of
the elements required to charge the crime of larceny in some degree.