State v. Ahart

• Decision Date: 20 October 2020
• Docket Number: No. ED 108016,ED 108016
• Citation: 609 S.W.3d 512
• Parties: STATE of Missouri, Respondent, v. Harley J. AHART, Jr., Appellant.
• Court: Missouri Court of Appeals

609 S.W.3d 512

STATE of Missouri, Respondent,

v.Harley J. AHART, Jr., Appellant.

No. ED 108016

Missouri Court of Appeals, Eastern District, DIVISION TWO.

FILED: October 20, 2020

Jedd C. Schneider, 1000 West Nifong Blvd., Building 7, Suite 1000, Columbia, MO 65203, for appellant.

Alex G. Ellison, 115 West Main Street, Bowling Green, MO 63334, for respondent.

Opinion

Robin Ransom, Presiding Judge

Harley J. Ahart, Jr. ("Ahart") appeals from the judgment and sentence of conviction after a bench trial finding him guilty of one count of tampering in the second degree. In his sole point on appeal, Ahart challenges the sufficiency of the evidence underlying his conviction. We reverse his conviction, enter a conviction for the lesser-included offense of attempted tampering in the second degree, and remand for sentencing on this Class B misdemeanor conviction.

Factual and Procedural Background ¹

The State charged Ahart with one count of tampering in the second degree in violation of Section 569.090,² a Class A misdemeanor, arising from the following events.

On August 15, 2018, Ahart's former spouse, Jennifer Ahart ("Victim"), and her current partner, James Turner ("Turner"), were eating at a restaurant in Bowling Green, Missouri. At the time of the offense, Ahart lived in Louisiana, Missouri, and Victim lived in Bowling Green. Victim and Turner were sitting by the window when they observed Ahart drive into the parking lot of the restaurant. Turner called the police when he saw Ahart arrive. Victim and Turner watched Ahart exit the truck he was driving, walk around and look at Victim's parked vehicle, retrieve a soda can from the bed of his truck, and place the soda can underneath Victim's vehicle in line with her tire(s). The soda can appeared to Victim to be "crunched-up." Ahart returned to the truck and drove away.

When law enforcement arrived at the restaurant in response to Turner's call, an officer retrieved the soda can from in front of the rear driver's side tire of Victim's vehicle. The soda can was a crushed twelve-ounce can with three one-and-a-half-inch nails protruding from it. Turner testified that no one else approached Victim's vehicle between the times Ahart and law enforcement arrived. Turner also testified that the soda can was not on the ground in the parking lot when he and Victim arrived at the restaurant. No evidence was adduced that Ahart or the soda can made contact with or damaged Victim's vehicle.

At the close of the State's evidence and at the close of all the evidence, Ahart made an oral motion for judgment of acquittal, which the trial court denied. The trial court took the matter under advisement and requested post-trial briefing from the parties on two specific questions: (1) does second-degree tampering necessitate damage to the vehicle; and (2) may the trial court find the defendant guilty of the lesser-included offense of attempted tampering rather than the State-submitted charge of second-degree tampering. After the bench trial and submission of the parties’ post-trial briefs, the trial court found Ahart guilty of the Class A misdemeanor of tampering in the second degree and sentenced him to fifteen (15) days in jail, with credit for the thirteen days he had served. This appeal follows.

Standard of Review

We review a challenge to the sufficiency of the evidence supporting a criminal conviction for whether there was sufficient evidence from which a reasonable trier of fact could have found the defendant guilty of the elements of the offense beyond a reasonable doubt. State v. Conner , 583 S.W.3d 102, 107 (Mo. App. E.D. 2019) ; State v. Ransburg , 504 S.W.3d 721, 722 (Mo. banc 2016) (applying standard of review in court-tried case). We consider all the evidence and reasonable inferences therefrom in the light most favorable to the verdict, and disregard contrary evidence and inferences. State v. Lammers , 479 S.W.3d 624, 632 (Mo. banc 2016). However, we will not supply missing evidence or grant the State any unreasonable, speculative, or forced inferences. Id.

Discussion

In his sole point on appeal, Ahart argues the trial court erred in overruling his motion for judgment of acquittal because there was insufficient evidence to find him guilty of tampering in the second degree. Ahart contends that he did not complete any act of tampering and that, at most, he can be found guilty of attempted second-degree tampering. We agree.

a. Tampering in the second degree

Section 569.090 provides, in relevant part, that an individual commits the offense of tampering in the second degree if he or she "[t]ampers with property of another for the purpose of causing substantial inconvenience to that person or to another." Section 569.090.1(1).³ Thus, to find an individual guilty of second-degree tampering, the evidence must show two essential elements: that he or she (1) tampered with another's property and (2) did so for the purpose of causing substantial inconvenience. Section 569.090.1(1); see also McKee v. State , 336 S.W.3d 151, 154 (Mo. App. E.D. 2011). As defined in the statute, "[t]o tamper" means "to interfere with something improperly, to meddle with it, displace it, make unwarranted alterations in its existing condition, or to deprive, temporarily, the owner or possessor of that thing." Section 569.010(3). To act with purpose means it is the defendant's "conscious object to engage in that conduct or to cause that result." Section 562.016.2. "[I]ntent is rarely susceptible to proof by direct evidence and is most often inferred circumstantially," including from the defendant's conduct before the act and from the act itself. Ransburg , 504 S.W.3d at 724 (citation omitted).

Here, we find that a reasonable trier of fact could have found from the evidence that Ahart acted for the purpose of causing substantial inconvenience to Victim. The evidence adduced showed that Ahart drove from another town to the town where Victim lived, approached Victim's vehicle and closely observed it, retrieved a soda can—which had been altered so that nails protruded from it—from his truck, and placed the altered soda can underneath Victim's vehicle in the path of its tire(s). It is a reasonable inference from this evidence that Ahart intended to improperly interfere with Victim's vehicle, including causing the altered soda can to puncture her tires. See State v. O'Brien , 857 S.W.2d 212, 218 (Mo. banc 1993) (person presumed to intend "natural and probable consequences" of his or her acts). It is further reasonable to infer that, through this action, Ahart sought to cause substantial inconvenience to Victim by impeding the normal use of her vehicle or through another adverse impact the soda can could cause. See Kelly v. Bass Pro Outdoor World, LLC , 245 S.W.3d 841, 849 n.4 (Mo. App. E.D. 2007) (stating evidence defendant damaged vehicle "with his prolonged use of the slim jim and his kicking the door shut" could support substantial inconvenience element of second-degree tampering).

Given our conclusion that a reasonable trier of fact could find from the evidence that Ahart acted with the requisite intent, the issue here is whether Ahart's act of placing the altered soda can underneath Victim's vehicle constituted "tampering" with her property.

Under the statutory definition, "tampering" means "to interfere with something improperly, to meddle with it, displace it, make unwarranted alterations in its existing condition, or to deprive, temporarily, the owner or possessor of that thing." Section 569.010(3). In this case, there is no tenable allegation that Ahart's conduct displaced Victim's vehicle, made unwarranted alterations to Victim's vehicle, or temporarily deprived Victim of her vehicle. As such, the question becomes whether Ahart's conduct improperly interfered or meddled with Victim's property. See Section 569.010(3). Webster's Dictionary defines "meddle" as "to interest oneself in what is not one's concern: interfere without right or propriety." Meddle , Webster's Dictionary (3d ed. 2002). Webster's Dictionary defines "interfere" as "to enter into or take a part in the concerns of others ... to interpose in a way that hinders or impedes: come into collision or be in opposition...." Interfere , Webster's Dictionary (3d ed. 2002); accord Bennett v. St. Louis Cty., Mo. , 542 S.W.3d 392, 401 (Mo. App. E.D. 2017) (citing definition of interfere).

The Missouri Supreme Court has previously noted that "[t]o tamper with a motor vehicle may be many things. Some may be serious, some clearly not serious; some major and some minor." State v. Hale , 463 S.W.2d 869, 872 (Mo. 1971) (internal quotations and citation omitted). Prior cases finding a conviction for tampering in relation to a motor vehicle under Missouri statutes⁴ have all included contact with or resulted in an effect on the condition or use of the vehicle, however minimal. See, e.g. , id. at 872–73 (attaching cable to vehicle in attempt to haul vehicle away without owner's consent); State v. McLarty , 414 S.W.2d 315, 318–19 (Mo. 1967) (partially disconnecting air conditioner); State v. Wood , 266 S.W.2d 632, 635 (Mo. 1954) (removing gasoline and license plate tab); State v. Ridinger , 364 Mo. 684, 266 S.W.2d 626, 631 (1954) (removing wheel and tire); State v. Tate , 509 S.W.2d 800, 801 (Mo. App. 1974) (inserting pick into ignition system of vehicle).

Guided by the above definitions and Missouri precedent, we conclude that tampering with property requires some contact with the property, initiated by the defendant, or some effect on the condition or use of the property, however minimal. This is not to say that damage must occur to the property, as this Court has previously noted that "one can tamper with another's property without damaging it."⁵ State v. Orton , 178 S.W.3d 589, 592 (Mo. App. E.D. 2005). However, to constitute tampering, there must be some contact having as its likely result an effect on the property or its use. Indeed, we have found no cases—and the State has...