State v. Asberry

• Decision Date: 08 December 1977
• Docket Number: No. 10465,10465
• Citation: 559 S.W.2d 764
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Gary Michael ASBERRY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 764

559 S.W.2d 764

STATE of Missouri, Plaintiff-Respondent, v. Gary Michael ASBERRY, Defendant-Appellant.

No. 10465.

Missouri Court of Appeals, Springfield District.

Dec. 8, 1977.

John D. Ashcroft, Atty. Gen., Walter O. Theiss, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

David G. Neal, Eminence, for defendant-appellant.

TITUS, Judge.

Per information filed in the Circuit Court of Reynolds County, defendant was charged with having committed first degree burglary as denounced by § 560.040, V. A.M.S. ¹ A jury found him guilty and fixed the minimum punishment, i. e., five years' imprisonment. § 560.095, V.A.M.S.

The pertinent portions of the information alleged that on August 3, 1975 (a Sunday), defendant did "(w)ilfully, intentionally, unlawfully and feloniously, break and enter the occupied dwelling house of another, namely Gerald Massie, in which there were at the time several human beings, with the intent then and there to commit a felony therein, namely, rape." On appeal, defendant's first Point Relied On is that the information was not sufficient to sustain a conviction of burglary in the first degree. We agree.

Citing and quoting State v. Wilson, 225 Mo. 503, 513, 125 S.W. 479, 482 (1910) and State v. Tutt, 63 Mo. 595, 601 (1876), it was said in State v. Young, 345 Mo. 407, 410, 133 S.W.2d 404, 406(4) (1939); " 'An indictment (or information) for burglary in the first degree . . . must state, not only the breaking and entering into a dwelling house in which at the time there was a human being, with intent to commit some felony or (stealing), but that such breaking and entering was effected in one of the modes specified in that section. The manner of breaking into a dwelling house is one of the ingredients of burglary in the first degree.' " State v. Faber, 499 S.W.2d 790, 792 (Mo.1973); State v. Johnson, 454 S.W.2d 27, 29(1) (Mo.1970); State v. Zammar, 305 S.W.2d 441, 443(4) (Mo.1957); State of O'Brien, 249 S.W.2d 433, 434(1) (Mo.1952), cert. den. 344 U.S. 859, 73 S.Ct. 100, 97 L.Ed. 667; cf. State v. Johnson, 537 S.W.2d 816, 818(1) (Mo.App.1976).

Although the information, supra, charged that there was a felonious breaking and entering of an occupied house of another with the intent to commit a felony, "(i)t does not charge a forcible bursting or breaking of the door or the lock or bolt thereof, under the first subdivision of the section; (nor a breaking, being armed with some dangerous weapon or with the assistance of a present confederate, under the second subdivision); nor an unlocking of the door by means of false keys or by picking the lock, under the third subdivision. While the information may be sufficient to charge burglary in the second degree, we are forced to hold it is fatally defective as a charge of burglary in the first degree." State v. Young, supra, 133 S.W.2d at 406-407(5).

Defendant next challenges the sufficiency of the evidence to sustain a conviction of burglary in the first degree. We shall see.

In the early morning hours of the date in question, i. e., 12:30 a. m. to 2 a. m. depending on whose testimony is accepted, Gerald and Virginia Massie (husband and wife), Jim Massie (Gerald's son by a prior marriage) and Suzette Howard (Virginia's 16-year-old daughter by a previous marriage) were abed in the Massie home situate in Ellington. Suzette was asleep in a basement bedroom located in the southeast portion of the dwelling. The bedroom had two windows of unknown size. The south window, covered by a screen, was open. When Jim was preparing for bed, he saw a Chevrolet automobile parked in the driveway leading from the house to "North-south Road." The car's parking lights were burning and its "motor was running." Jim heard "some voices coming from there." Although who owned the automobile was never proved, the questions asked and the answers given at trial assumed that defendant owned the vehicle. Nevertheless, defendant denied he had been in the car at any pertinent time.

Suzette was awakened by "a scraping or ripping noise at the (south) window." She "sat up in bed and listened(,) asked who was there (and) they (sic) said it was a friend." According to Suzette, the voice was that of a "male." The speaking person "said something to someone else later (and) I think I saw another person behind him, I'm not sure." After "(t)wo or three minutes," during which time Suzette had some unremembered conversation with the person or persons outside the window, she saw a naked foot sticking some six or eight inches through the window screen into the basement bedroom via an "L-shape (cut in the screen) about eight inches one direction, and about six the other." She could not "tell whether it was a male or female foot." After observing the naked foot, Suzette "ran out of the room and screamed." Suzette could not identify anyone who may have been outside of the opened window.

Responding to Suzette's scream, Gerald and Jim went to the basement and were given a curt critique of the foregoing. They went outside the house but found no one. Gerald found "one pair of (men's) pants (and) two boots . . . on a concrete slab at the north end of the house underneath the porch."

After dressing, Jim drove the Chevrolet up by the house, locked it and took the keys. Subsequently, Jim heard a noise 300 to 400 yards south of the house. Arming himself with a "piece of pipe," he went to investigate. About 100 yards south of the house, Jim encountered defendant at an "apartment building." Defendant, "naked and intoxicated, . . . was carrying a small pillow (and) was rather incoherent." Over numerous objections, Jim testified that when he asked defendant "if he tried to enter the house and why," the defendant "(i)n substance" responded "that he had committed the act and his tone was apologetic (or) something in the nature he hadn't meant anything by it and he was sorry."

Directing defendant to stay where he was, Jim returned to the house and retrieved the trousers found there. Jim and his father returned to where defendant waited. With considerable difficulty, defendant donned the pants, wrong side out and backwards.

Six or seven years previously, Suzette (then nine or ten years old) had casually known defendant (age never shown) when he mowed the lawn for her (presumably) natural parents. Suzette had never "dated" defendant. Neither had she "ever associate(d) with him socially." She testified she had not seen defendant "that night." Subsequent night and daylight searches of defendant and the involved areas by various individuals failed to discover any "dangerous weapon" or any instrumentality which might have been employed to cut the screen, etc. We deem it reasonable to conclude, as defendant's and others' testimony indicated, that defendant was exorbitantly intoxicated at the times in question.

The presence of any part of an alleged burglar's body within the premises is enough entry to prove one essential element of a charge of burglary. State v. Maddox, 465 S.W.2d 607, 609(1) (Mo.1971); State v. Watson, 383 S.W.2d 753, 756(4) (Mo.1964); State v. Tierney, 371 S.W.2d 321, 323(3) (Mo.1963). Although there was no evidence of the size of the basement window opening or proof to indicate that the opening minus the screen was sufficiently large to admit defendant into the house, nevertheless, based on the just-cited authorities, if we accept the jury's apparent finding that the naked foot stuck through the L-shaped cut in the screen was that of the defendant, we are constrained to the conclusion that there was proof of an entry.

However, mere entry does not itself constitute burglary. In this case it was necessary to prove that the entry was made to commit the felony of rape. To sustain such a charge, the proof must show beyond a reasonable doubt that defendant intended not merely to have sexual intercourse with the girl but also to use whatever force was necessary to overcome her...