State v. Bailey, WD

• Decision Date: 04 January 1983
• Docket Number: No. WD,WD
• Citation: 645 S.W.2d 211
• Parties: STATE of Missouri, Respondent, v. Claybourn Ray BAILEY, Appellant. 32774.
• Court: Missouri Court of Appeals

Page 211

645 S.W.2d 211

STATE of Missouri, Respondent, v. Claybourn Ray BAILEY, Appellant.

No. WD 32774.

Missouri Court of Appeals,

Western District.

Jan. 4, 1983.

Robert Beaird, William Maness, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Kelly Klopfenstein, Div., Asst. Atty. Gen., Jefferson City, for respondent.

Before SOMERVILLE, C.J., and SHANGLER, PRITCHARD, DIXON, CLARK, MANFORD and KENNEDY, JJ.

CLARK, Judge.

Claybourn Ray Bailey was jury tried and convicted of the offenses of intentional burning, burglary and stealing and he was sentenced in accordance with the recommendation of the jury to terms of five years, two years and seven years. The court directed that the first and third sentences be served consecutively and that the second sentence run concurrently with the others, the result being an aggregate term of imprisonment of twelve years. This appeal from the judgment and sentence followed disposition of Bailey's new trial motion, the irregularity of which requires comment.

The verdict was returned January 22, 1981. On that date, the court recorded in its minutes the following: "At request of defendant, time for filing motion for new trial extended 30 days in addition to 10 days allowed by rule." The court apparently was applying former Rule 27.20, but that rule was repealed June 13, 1979 and Rule 29.11(b) governing the time for filing new trial motions was adopted effective January 1, 1980. Under the rule in effect as of the date the verdict was returned against Bailey, the motion was due to be filed within 15 days. For good cause, a maximum extension of 10 days could have been granted. When filed on February 27, 1981, Bailey's motion for new trial was within the time allowed by the trial court, but was 11 days out of time as provided in Rule 29.11(b).

A trial court is not empowered to waive or extend the requirements of the rules as to the filing of a new trial motion and a motion filed beyond the time which the rules allow preserves nothing for appellate review. State v. Brown, 615 S.W.2d 626 (Mo.App.1981). The points which Bailey now presents, although set out in his motion for new trial, must be considered only if it be concluded that manifest injustice or miscarriage of justice requires application of the plain error doctrine set out in Rule 29.12(b).

Among the points raised, Bailey challenges the sufficiency of the state's evidence to take the case to the jury. In any criminal case, the accused has a constitutional due process right to require that the state present evidence from which any rational trier of the fact could find the essential elements of the crime beyond a reasonable doubt. State v. Kimball, 613 S.W.2d 932, 934 (Mo.App.1981). Thus, a failure to present sufficient evidence involves substantial rights and if the evidence be found deficient, relief is appropriately considered under the aegis of the plain error rule. Of course, the evidence is considered in the light most favorable to the state, as the jury verdict requires.

Proceeding then to a review under the foregoing strictures, the following facts appear in the record. The events in question occurred during the early morning hours of June 27, 1980. At approximately 2:00 a.m. a city police officer in Brookfield responded to a fire call and found a Missouri Highway Patrol motorcycle in the street ablaze. Some distance down that street was the residence of a highway patrolman who, when awakened by the police officer, came out and identified the motorcycle as a vehicle in his custody. The highway patrolman had last seen the motorcycle in an open garage at the rear of his home the previous evening. He had heard or seen nothing and did not know how the motorcycle came to be in the street some four residence lots from his home.

Further investigation revealed that four young men had seen Bailey that evening. Christo Riley, Roger Farris, Ronald Farris and George Dick had been in a Brookfield city park drinking when Bailey drove up and asked their aid in loading a motorcycle. The motorcycle was not to be seen at the time. Bailey was driving a Ford Pinto and no explanation was offered as to how or where Bailey proposed to load the motorcycle. After several entreaties by Bailey for assistance were refused by the group in the park, Bailey stated he would burn the motorcycle if he could not load it and a fire whistle would be heard. The fire alarm did thereafter sound. The group from the park went in search of the fire and found the patrol vehicle burning and the fire department at hand to extinguish the blaze. Bailey was seen driving his automobile past the onlookers who had gathered at the location of the burning motorcycle.

Three points of trial error are asserted by Bailey two of which challenge the sufficiency of the evidence to sustain the state's burden of proof. In a third point, Bailey contends the trial court erred in failing to grant a new trial on account of newly discovered evidence. This latter point may be ruled with a minimum of discussion before moving to the central issue of the case, the sufficiency of the evidence.

Bailey's theory of defense was that other men were involved in an attempted theft of the motorcycle and that he was an unwitting dupe in their efforts to load the machine on some other vehicle. In his new trial motion, Bailey contended a witness not available at trial would confirm the presence of two other individuals and a truck in the vicinity of the crimes on the night in question. That witness was called and testified in support of the new trial motion. Bailey contends a new trial should have been ordered to permit a jury to consider the additional evidence corroborative of his defense.

It is doubtful that error based on a claim of newly discovered evidence rises to the status of manifest injustice involving, as it does, the exercise of discretion by the trial court. The trial court has broad discretion in ruling on a new trial motion based on newly discovered evidence and that ruling will be left undisturbed, particularly if it appears the new evidence is not so material as to be likely to produce a different result. State v. Tyler, 587 S.W.2d 918, 928 (Mo.App.1979). Here, the trial judge heard the testimony and observed the demeanor of the witness and found the evidence not to be of critical value. After reviewing the facts which this witness related concerning two individuals and a truck observed in an alley, we cannot conclude that the trial court abused its discretion in refusing to grant a new trial for receipt of that evidence.

In the primary points questioning the sufficiency of the state's case, Bailey argues first that the proof as to all three charges failed to connect him with the crimes and, at best, engendered no more than a suspicion that it was he who entered the garage, removed the motorcycle and later set it on fire. Secondly, Bailey contends he could not be convicted of burglary in any event because the highway patrolman's garage was not a building or inhabitable structure as defined in the burglary statute, § 569.170, RSMo 1978.

In his attack on the sufficiency of the state's evidence, Bailey generally argues that direct proof of his guilt was minimal, the case resting almost entirely on circumstantial evidence. He cites State v. Siraguso, 610 S.W.2d 338 (Mo.App.1980) for the proposition that a conviction must rest on something more than guess, suspicion or even probability of guilt. The evidence here, he says, was not substantial.

State v. Siraguso, supra, instructs, as do numerous other decisions, that proof of a crime by circumstantial evidence alone requires a symphysis of circumstances consistent with the hypothesis of guilt, inconsistent with innocence and exclusive of any reasonable hypothesis that the accused was innocent. As to the charge that it was Bailey who burned the motorcycle, the state's evidence was conjunctively direct and circumstantial. Bailey's assertion that he intended to burn a police motorcycle constituted direct evidence of the contemplated crime to which the final links were forged by the circumstances of Bailey's presence near the scene and the discovery of the burning motorcycle. His arguments as to the absence of sufficient evidence for submission of the intentional burning charge fail on two accounts. First, there was direct evidence from Bailey's own statement that he contemplated commission of the offense. Second, even were the case to depend entirely upon inference, the only hypothesis supported by the circumstances points to Bailey as the guilty instrument responsible for the burning. The evidence is susceptible of no reasonable construction pointing to Bailey's innocence. The trial court correctly submitted the charge of intentional burning for decision by the jury.

Evidence supporting the charges of burglary and stealing, however, was of an entirely different character and was readily conformable to an alternate hypothesis that some other party entered the garage and removed the motorcycle. This follows because no evidence whatever placed Bailey at or near the location of the garage and his possession of the motorcycle at the scene of the burning was deduced only by inference from his statement of an intention to set a motorcycle on fire to remove his fingerprints. The inferential possession of stolen property was some distance from the highway patrolman's garage and several hours after the motorcycle had last been seen there. As to the charges of burglary and stealing, the state's case was devoid of any direct evidence. It depended entirely upon the inference that if Bailey set the motorcycle on fire, he must have been the culprit who had earlier entered the garage and stolen it.

But the inference Bailey burglarized the garage is not the only inference, or even the more reasonable one, to be drawn from Bailey's implication in the burning of the motorcycle. An equally plausible conclusion from Bailey's request...