State v. Greathouse, 13201

• Decision Date: 23 July 1985
• Docket Number: No. 13201,13201
• Citation: 694 S.W.2d 903
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Arlis GREATHOUSE, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 903

694 S.W.2d 903

STATE of Missouri, Plaintiff-Respondent, v. Arlis GREATHOUSE, Defendant-Appellant.

No. 13201.

Missouri Court of Appeals,

Southern District,

Division Three.

July 23, 1985.

Motion for Rehearing or Transfer Denied

Aug. 12, 1985.

Application to Transfer Denied

Sept. 10, 1985.

David E. Woods, Public Defender, Poplar Bluff, for defendant-appellant.

John Ashcroft, Atty. Gen., Richard Baugh, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

HOGAN, Judge.

In separate informations, defendant Arlis Greathouse was charged with burglary as defined and denounced by § 569.170, RSMo 1978, ¹ and stealing without consent, as defined and denounced by §§ 570.030.1 and 570.030.2(1). Venue of the cause was changed from Carter to Oregon County. A jury found defendant guilty of burglary and by separate verdict found him guilty of stealing. Defendant's sentence was enhanced on both convictions upon the court's finding that he was a persistent offender. His punishment was assessed at imprisonment for a term of 15 years for each offense, the terms to run consecutively.

Kendall Combs owned and operated a general store known as the Van Dyke Store in Ellsinore, a community of about 362 people located in Carter County. Combs sold groceries, hardware and sporting goods, including guns. The dimensions and location of the building are difficult to articulate because we have no exhibits before us, but Combs testified that the premises were illuminated at night by some "Ozark border lights" and a 300-watt bulb "right on the edge of the store building." Combs worked at the store on Saturday, May 1, 1982. He closed the business about 6 p.m. The several entrances to the store were carefully locked.

Combs had decided to go turkey hunting on Sunday, May 2, as that was the last day of the season. He arose about 5 or 5:30 a.m. A friend, Donald Hampton, came to Combs' residence and picked him up. Hampton was driving a truck. Combs sat "on the passenger [side] right by the door." Hampton got gas, and the two men decided on a place to hunt. They "decided to go back out A Highway, so [they] had to go back through town." Their route took them past the Van Dyke Store.

Some distance from the store, Combs noticed a car parked by a loading dock at the back door of his store. He asked Hampton to drive around to the back of the premises. Hampton did so, and Combs found a "car ... parked right at the very side of the store, right toward the back with the trunk open." Attempting to be more specific, Combs testified there was a 4' X 7' loading dock "[r]ight at the side of the store at the very back"; the automobile was parked "right beside [the dock] with the trunk open" parallel to the steps which led from the ground to the top of the dock.

Combs saw a man come around the side of the car; the man got in the car "behind the steering wheel." At this point, Combs was "about 20 feet" from the man who got in the car. Over the defendant's strenuous (and misplaced) objection, Combs identified the defendant as the man who came around the car and got in the driver's seat.

As Hampton drove past the car, another man came out of the store. Combs then "jumped out of the truck" and a third man came out of the store. This third man "had some guns in his hands." Combs, shotgun in hand, "hollered for him to halt." This third man looked at Combs and jumped in the car. The automobile "started to leave" so Combs "shot at it three times." He "got some of the taillight [sic] and the trunk lid and knocked the back glass out of it." Combs and his companion pursued the burglars, but lost them after the burglars turned on to Highway 60. The vehicle was described as a "silver color Ford, about a '79 or '80. Like a Galaxie or LTD, something like that."

The defendant and his accomplices were apprehended and taken in custody in Reynolds County. The property which they had managed to remove was seen by Combs at the sheriff's office in Centerville. Combs also took an inventory of the items which were taken--16 guns and some watches and knives and ammunition. There was other merchandise which the burglars had been unable to remove from the premises. Combs estimated the value of the property taken at $3,000 to $3,500.

The State also had the evidence of Jimmy Dwayne Beck, who was married to defendant's stepdaughter Debra. On May 1 and 2, 1982, Beck and his family lived with the defendant and his family at the defendant's residence in Doniphan. Beck retired about 11 p.m. on Saturday, May 1. About 2 a.m., he was awakened by the defendant. The defendant "wanted to go for a ride." Beck agreed. The defendant, Beck and one Kenneth Todd thereupon drove from Doniphan to Ellsinore. When they arrived at Ellsinore, the defendant started "circling around" the Van Dyke Store. The defendant then told his two companions that he wanted them to break in the store and steal " 'knives, watches, guns, and shells' " because "that's what ... sold the best." There is no mistaking the store about which Beck was testifying; he was shown State's Exhibit 4, a photograph of the loading dock at the Van Dyke Store and immediately stated "Van Dyke Store."

Beck and Todd got out of the car, walked around the store and decided to break in through a "little small window" next to the loading dock. Beck was not a very skillful burglar; there was a metal bar across the window which Beck was unable to cut with a hacksaw. Beck and Todd informed the defendant they were unable to break in. The three men went back to Doniphan.

Presently, the defendant told Beck "we was going to go try it again." The three men returned to Ellsinore--"Back to the Van Dyke Store." This time, Beck managed to get the window bar cut. He crawled in the store, got a crowbar and pried the lock off the sliding door which opened onto the loading dock. Todd "went to get [the defendant]" so the men could carry off what they could steal. There was a "[p]retty bright" light at the place where defendant parked his vehicle, and Beck was able to see without further illumination. The defendant got out of his car, came in the building and made two or three trips carrying property out of the store. Beck was shown stolen merchandise assembled on a table in the courtroom and marked as State's Exhibit 14. This property had been identified by Combs as property taken from his store. Beck recognized it as "being the stuff [he] took out."

This witness was specifically asked: "Q. All right. You actually saw Arlis Greathouse inside the store building? A. Yes. Q. Saw him carrying guns out? A. Yes." Beck recalled Combs' attempt to stop the burglars, adding that as soon as Combs began shooting, defendant "[t]ook off." Defendant planned to drive his vehicle to Lebanon to have it repaired. Defendant, Beck and Todd "got to Reynolds County and then that's where [they] got caught." Such is the substance of the State's case. Other evidence will be specifically noted as material.

The defendant has briefed twelve assignments of error. Points VII and XI deal with the sufficiency of the evidence to support the verdicts. Point XI consists wholly and solely of an assertion that the evidence does not support the verdict; Point VII is, in substance, a specific assignment that the ownership of the goods stolen was not proved.

All that need be said about Point XI is that in assessing the sufficiency of the evidence, this court must accept as true all evidence and inferences which tend to support the verdict and disregard all evidence and inferences to the contrary. The question is always whether the evidence, viewed in a light most favorable to the State, is sufficient to support the verdict. State v. Brown, 660 S.W.2d 694, 698-699[9-10] (Mo. banc 1983); State v. Story, 646 S.W.2d 68, 72 (Mo. banc 1983). We have considered the evidence in that light and find there is ample evidence to support both judgments of conviction.

Point VII is a particular complaint that the ownership of the stolen property was not established. We are cited only to the statute, § 570.030.1.

The phrase "property of another" as used in § 570.030.1 must be construed by reference to § 570.010(9) which defines the scope of the words "of another" by stating that "property or services is that 'of another' if any natural person, corporation, partnership, association, governmental subdivision or instrumentality, other than the actor, has a possessory or proprietary interest therein." The evidence was that the property stolen by the defendant was held for sale by corporations which Combs either owned or controlled. ² Lawful custody and control of property is a sufficient attribute of ownership to support an averment and proof of ownership against one charged with stealing goods which are "property belonging to another." State v. Hill, 528 S.W.2d 798, 801 (Mo.App.1975). There was substantial evidence that the property stolen was the "property of another" within the scope of § 570.030.1.

Defendant contends that Kendall Combs should not have been permitted to identify the defendant as the driver of the car Combs found parked beside the Van Dyke Store at the time the burglary was taking place "because there was no independent basis for Combs [sic] identification in determining the reliability of his identification under the totality of the circumstances." As authority for this contention defendant cites State v. Story, 646 S.W.2d 68 (Mo. banc 1983).

In Story, the court discussed the criteria of reliability to be applied when an in-court identification is attacked on the ground that pretrial identification procedures violate the due process right established by Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The defendant's argument is difficult to follow. There was no corporeal lineup nor any photographic display. There was no compelled confrontation of any kind. The only encounter between Combs and the defendant after the burglary and prior to the trial...