State v. Bird

• Decision Date: 07 September 1999
• Citation: 1 S.W.3d 62
• Parties: (Mo.App. E.D. 1999) . State of Missouri, Respondent, v. Benjamin Bird, Appellant. Case Number: 74827 Missouri Court of Appeals Eastern District Handdown Date: 0
• Court: Missouri Court of Appeals

1 S.W.3d 62 (Mo.App. E.D. 1999)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

State of Missouri, Respondent, v. Benjamin Bird, Appellant.

Case Number: 74827

Missouri Court of Appeals Eastern District

Handdown Date: 09/07/99

Appeal From: Circuit Court of Cape Girardeau County, Hon. William L. Syler

Counsel for Appellant: Nancy A. McKerrow

Counsel for Respondent: Barbara K. Chesser

Opinion Summary: Defendant Benjamin Bird appeals convictions and sentences on unrelated charges of receiving stolen property and two charges of burglary in the second degree and possession of burglary tools.

RECEIVING STOLEN PROPERTY CONVICTION AND SENTENCE REVERSED. BURGLARY AND BURLARY TOOLS CONVICTIONS AND SENTENCES REVERSED AND REMANDED.

Division Four holds: (1) The conviction and sentence on receiving stolen property is reversed for lack of sufficient evidence to make a submissible case. There was no evidence to connect Bird with the burglary in which the rifle was stolen and no evidence regarding the circumstances in which Bird obtained the rifle or when. Thus, there is no unexplained possession of recently stolen property.

(2) The burglary tools charges were unlawfully joined in error with the stolen property charge. The joinder is presumptively prejudicial and not rebutted. The burglary charges are reversed and remanded for a new trial.

Opinion Author: Kent E. Karohl, Judge

Opinion Vote: Crandall, Jr., P.J. and Hoff, J. concur.

Opinion:

Defendant appeals convictions and consecutive sentences on three felonies filed in one information: (1) Count I charged receiving stolen property in that, between December 10, 1996 and March 15, 1997, he "retained" a Winchester 30-30 rifle "knowing or believing that it had been stolen;" (2) Count IV charged burglary in the second degree committed on November 1, 1997; and, (3) Count V charged possession of burglar's tools on November 1, 1997. The information also charged defendant in Count II with burglary second degree and Count III with possession of burglary tools both occurring on March 17, 1997. The jury found defendant not guilty of Counts II and III.

Defendant's first point contends the court erred in not granting a motion for judgment of acquittal on Count I. In order to support the charge of receiving stolen property, the state bears the burden of proving beyond a reasonable doubt that: (1) defendant retained a 30-30 Winchester rifle that was in fact stolen; (2) defendant exercised dominion over the rifle by receiving, retaining or disposing of it; (3) defendant knew or believed the rifle had been stolen; and, (4) defendant intended to deprive the owner of a lawful interest in the property. State v. Taylor, 691 S.W.2d 379, 381-82 (Mo. App. 1985). On this point we review the evidence in the light most favorable to the verdict, "including all favorable inferences drawn from the evidence and disregard[s] all evidence and inferences to the contrary." State v. Grimm, 854 S.W.2d 403, 405 (Mo. banc 1993) cert. denied, 510 U.S. 997 (1993).

Defendant's principal challenge is to the third element of the offense, knowledge or belief. There is no dispute that the weapon was stolen on December 10, 1996 in a burglary of the home of Kody Newkirk. Newkirk paid around $300.00 for the rifle. After the burglary, Newkirk first saw his rifle on August 14, 1997 at PHD Sporting Goods. A second weapon stolen in the December 1996 burglary was subsequently found in the possession of a person other than defendant.

Sometime in "January and February 1997," Keith Long put two axles on an automobile of defendant's wife. At some unidentified time thereafter, Long went to defendant's home for payment for the automobile repairs. Long agreed to accept the 30-30 Winchester as compensation for his work. There is no evidence to support a finding of the value of the repairs or that the rifle was worth more than the repair charges. Long did not know the rifle was stolen. He subsequently traded the rifle at PHD Sporting Goods for another gun.

Rodney Phegley, co-owner of PHD Sporting Goods, did not know the rifle was stolen. He testified that the rifle had a retail value of about $225.00. The serial number on the rifle was untouched. He had no way of knowing that the rifle had been stolen because Newkirk made no record of the serial number, and the number was unavailable after the burglary.

We conclude that the evidence viewed in light of the verdict is insufficient to support the verdict. There is no evidence to support a finding connecting defendant with the December 10, 1996 burglary during which the rifle was stolen. There is no evidence to support a finding regarding the circumstances in which defendant obtained the rifle. Particularly, there is no evidence to support finding when defendant acquired the rifle. Thus, there is no unexplained possession by defendant of recently stolen property. The jury may consider this circumstance when determining whether defendant knew or believed the stolen nature of the property. State v. Taylor, 691 S.W.2d 379, 382 (Mo. App. 1985) citing State v. Sours, 633 S.W.2d 255, 258 (Mo. App. 1982). However, there must also be evidence to support finding "recent." The state relies on State v. Lindsey, 868 S.W.2d 114, 117 (Mo. App. W.D. 1993) and State v. Morgan, 861 S.W.2d 221, 222 (Mo. App. E.D. 1993), which both involve "recently" stolen property as the basis for an inference that defendants knew they possessed stolen property. However, these cases are inapposite.

In Morgan, defendant was charged with stealing a johnboat in June 1990. State v. Morgan, 861 S.W.2d 221, 222 (Mo. App. E.D. 1993). In July 1990 it was found at his home with the serial number tags removed. Id. Defendant told the police he paid $150.00 for the boat from an unidentified person. Id. There was evidence the boat had a value of $600.00. Id. We affirmed the conviction relying on evidence of a recent theft, defendant's possession of the boat with serial numbers removed and the apparent fabricated story of purchase. Id. In the present case there is no evidence to support a finding that defendant acquired the rifle near to the time it was stolen; no evidence to support a finding that anything connected to the rifle would suggest that it was stolen; and, no statement of the defendant which would infer knowledge. Defendant did not testify.

In Lindsey the defendant was found in the backyard of a home, which had been burglarized shortly before. State v. Lindsey, 868 S.W.2d 114, 116 (Mo. App. W.D. 1993). A witness observed a man, not the defendant, carry a television from the home and saw a man return to the house. Id. at 117. He called the police. Id. When a police officer caught defendant in the backyard a "short time later" defendant had in his possession a television antenna and remote controls for a television of the make or model stolen. Id. Further, the police located the television and its connection to the burglary by following tracks in the snow. Id. at 116. There was direct evidence of: (1) a theft immediately before the arrest; (2) defendant's possession of recently stolen property; and, (3) possession of equipment related to the television. Id. at 117. This constituted substantial evidence to support inferences defendant knew or believed that he received stolen property. Id. There is no such evidence in the present case. The conviction and sentence on the charge in Count I, receiving stolen property, is reversed for lack of sufficient evidence to make a submissible case.

Defendant's second point argues the court erred in failing to sustain his timely motion for a severance because joinder was improper. On December 31, 1997 the state filed an information charging five felonies. Defendant filed a motion for severance on March 2, 1998. He alleged, inter alia:

3. Severance of offenses should be granted if their joinder for trial would result in substantial prejudice to the accused. Section 545.885 RSMo. (1994)

4. Joinder of these offenses would result in substantial prejudice to defendant because the jury would likely consider evidence of guilt on one charge as evidence of guilt on another charge.

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6. Count I allegedly occurred between December 10, 1996 and March 15, 1997; Counts II and III allegedly occurred on March 17, 1997; Counts IV and V allegedly occurred on November 1, 1997.

7. Although the five charges involve three separate incidents, allegedly occurring at very different points in time, the five charges were all filed together by the Prosecuting Attorney on November 2, 1997.

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9. Denial of defendant's motion will violate his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, Article I, Section 10 and 18(a) of the Missouri Constitution and the laws of Missouri.

The prosecuting attorney resisted the motion for severance on the basis of the "similar nature of these particular crimes and the close proximity to which they were committed." He told the court all the crimes "were committed in the same proximity to each other, both in time and location, and the methods used in this modus operandi, if you will, is similar in all cases which makes this a continuing act." He argued that the three cases stemmed from burglaries where a tire tool and some sort of gloves were used. Further, they were done in a similar neighborhood, approximately six to eight blocks in area, all done about the same time of night, and the method of entry, prying a door open in an unlit area, was the same in each case. He also argued "the defendant is not prejudiced in this case. He can take the stand and testify concerning each of these." Defendant argued...