Bongfeldt v. State, CACR

• Decision Date: 15 September 1982
• Docket Number: No. CACR,CACR
• Citation: 6 Ark.App. 102,639 S.W.2d 70
• Parties: Christopher Riley BONGFELDT, Appellant, v. STATE of Arkansas, Appellee. 82-51.
• Court: Arkansas Court of Appeals

Page 70

639 S.W.2d 70

6 Ark.App. 102

Christopher Riley BONGFELDT, Appellant, v.STATE of Arkansas, Appellee.

No. CACR 82-51.

Court of Appeals of Arkansas.

Sept. 15, 1982.

Thompson, O'Bryan, & Martin by Joseph H. O'Bryan, Cabot, for appellant.

Steve Clark, Atty. Gen. by Victra L. Fewell, Asst. Atty. Gen., Little Rock, for appellee.

CRACRAFT, Judge.

Christopher Riley Bongfeldt was charged with the crime of burglary.He was found guilty of the lesser included offense of breaking and entering and appeals from that conviction.He contends the trial court erred both in refusing to suppress evidence of his confession and physical evidence which he contends was seized by warrantless search and also in not dismissing the charge for lack of speedy trial.We find no merit in these contentions.We agree, however, that the court committed prejudicial error in failing to instruct the jury on the lesser included offense of criminal trespass and in not excluding evidence of guilt of other offenses.As some of those points in which we find no error are likely to be raised at retrial of the casewe address them, as well.

On the morning of May 12, 1981 the proprietor of Cook's Flying Service observed a siphon hose hanging from the gas tank of his pickup truck in front of the building.He discovered that a rear window had been broken and that a window through a partition to his private office had also been broken.Tools, which were used in gaining entry to that area, had been removed from the rear of the building into the front office.He found nothing else missing other than a bottle of acid which had been emptied outside the building onto the concrete, turning it white.He later found that a fuel tank containing gasoline was missing and called the police.

The police found footprints where the acid had been poured.The footprints which were of a white powdery appearance led to the truck and through the building and office.The prints were made by a tennis shoe with a distinctive tread.They learned that the appellant had lost his job at the hangar the day before the burglary occurred.

The officers went to appellant's apartment where they found these same white footprints leading from his car up a stairwell and into his apartment.The officers identified themselves and their purpose for being there and appellant invited them in stating that he saw no reason why he should not talk to them.The officers informed him of the burglary and of the footprints connecting him to it.While in the apartment they observed a pair of red tennis shoes in plain view.After examining the sole and detecting the odor of acid, they placed appellant under arrest and retained the shoes.

At the police station an officer read and explained appellant's Miranda rights.Appellant stated that he understood those rights, but he declined to make a statement at that time.A short time later he elected to waive his rights and gave a written statement in which he admitted breaking into the building to get keys to the truck from which he wished to siphon gasoline.He stated that he gained entrance to the hangar by breaking a window, admitting that he took tools from the back of the building and used them to break the lock on a sliding glass door.He found the truck keys and a short piece of hose.He stated that he emptied the bottle of acid on the concrete, intending to put siphoned gas in it.He placed the hose in the tank of the truck but was unable to siphon gas, so he left the hose there.He later found a gas tank in a boat stored in the hangar, removed it from the building and poured this gas into the tank of his car.He stated that he threw the empty tank into a ditch near the edge of the airport.The police found the gas tank where he said in his statement it would be found.

We first address those arguments concerning errors on which we base our decision to reverse and remand.While not questioning the court's instruction on breaking and entering, appellant contends that the trial court erred in refusing to give also an instruction on criminal trespass as a lesser included offense of burglary.We agree.

Ark.Stat.Ann. § 41-105(2)(Repl.1977) defines lesser included offense as one which is established by proof of the same or less than all of the elements required to establish the offense charged.Appellant was charged with burglary under Ark.Stat.Ann. § 41-2002(1)(Repl.1977) which provides that one commits the felony of burglary by entering or remaining unlawfully in an occupiable structure with the purpose of committing any offense punishable by imprisonment.Ark.Stat.Ann. § 41-2004(Repl.1977) provides that one commits criminal trespass, a misdemeanor, by purposely entering or remaining unlawfully on the premises of another.The crime is complete upon finding that there has been an unlawful entry.No intent to engage in further unlawful conduct is necessary.The punishment is enhanced if the premises is an occupiable structure.The two offenses differ only as to the requirement of criminal intent at the time of the unlawful entry.Criminal trespass meets all of the requirements of being a lesser included offense of burglary.The Supreme Court held so expressly in Grays v. State, 264 Ark. 564, 572 S.W.2d 847(1978).

It is reversible error to refuse to give a correct instruction on a lesser included offense and its punishment when there is testimony furnishing a reasonable basis on which the accused may be found guilty of the lesser offense.Caton & Headley v. State, 252 Ark. 420, 479 S.W.2d 537(1972);Glover v. State, 273 Ark. 376, 619 S.W.2d 629(1981).Where there is no evidence tending to disprove one of the elements of the larger offense the court is not required to instruct on the lesser one because absent such evidence there is no reasonable basis for finding an accused guilty of the lesser offense.In this type of case the jury must find the defendant guilty either of the offense charged or of nothing.Grays v. State, supra;Barksdale v. State, 262 Ark. 271, 555 S.W.2d 948(1977);Lovelace v. State, 276 Ark. 463, 637 S.W.2d 548(1982);Fisk v. State, 5 Ark.App. 5, 631 S.W.2d 626(1982).Where, however, there is the slightest evidence tending to disprove one of the elements of the larger offense, it is error to refuse to give an instruction on the lesser included one.Brewer v. State, 271 Ark. 254, 608 S.W.2d 363(1980).

In this case there was evidence presented on which the jury might have found appellant's entry was without the criminal intent required for conviction of the larger offense.While he made no mention of it in his in-custody statement, appellant testified at trial that he entered the building intending to borrow the gasoline and to pay the owner for it the next morning.While it appears most unlikely, the jury could have believed that testimony and could have found that the criminal intent required for conviction of the larger offense was lacking.In other words, it was not impossible for the jury to have found appellant guilty only of criminal trespass.Where one takes the property of another without his permission but with the present intention of returning it or of paying the owner for it later, he is not guilty of theft.Mason v. State, 32 Ark. 238(1877);Haywood v. State, 143 Ark. 576, 219 S.W. 750(1920);52A C.J.S.Larceny§ 25a, 448.Of course this rule is restricted to the borrowing of such items as are readily replaceable by a person who has the power to restore or replace them.The items taken by this appellant were of such a character.We conclude that it was prejudicial error of the court to fail to give the proffered instruction on criminal trespass.

The appellant also contends that the trial court erred in permitting the prosecuting attorney to inquire of appellant if he had previously entered guilty pleas on two felony charges pending against him in the White County Circuit Court.Appellant's objection on grounds of relevance and motion for a mistrial were overruled.Appellant then responded that he had entered the two guilty pleas.We agree that the question was improper in that form and that it was error to admit the evidence.

Rule 609(a) Arkansas Rules of Evidence, subject to certain limitations not argued here, permits the impeachment of a witness's credibility by proof of conviction of crimes punishable by imprisonment of more than one year or which involve dishonesty.This rule permits evidence of conviction of certain crimes for that purpose.It does not deal...