State v. Bowman, No. WD 70366 (Mo. App. 3/23/2010)
| Decision Date | 23 March 2010 |
| Docket Number | No. WD 70366.,WD 70366. |
| Parties | STATE OF MISSOURI, Respondent, v. TONY M. BOWMAN, Appellant. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Jackson County, Missouri The Honorable Kathleen A. Forsyth, Judge.
Before Division III: James Edward Welsh, Presiding Judge, and Mark D. Pfeiffer and Karen King Mitchell, Judges.
Tony M. Bowman (Bowman) appeals the trial court's judgment convicting him, after a jury trial, of one count of first-degree burglary in violation of section 569.160.1 On appeal, he presents two points in which he challenges the sufficiency of the evidence and the trial court's verdict director. We affirm.
Jerry Morris (Morris) and his wife, Achiella Morris (Achiella), purchased a duplex at 3925 Troost in Kansas City, Missouri. The duplex consists of a downstairs and upstairs apartment. At the front of the duplex is a door leading to a small common area hallway. The hallway contains two doors, which lead to the two apartment units. The two apartments also share a common backdoor area.
Morris and Achiella purchased the duplex with the intent of renovating it so they could rent it. In May 2007, Morris and Achiella were still in the process of renovating the duplex and neither apartment unit was occupied by a tenant. In order to prevent entry into the duplex during the ongoing renovation, Morris secured two-by-four boards across the front door.
On May 7, 2007, Bowman and his accomplice went to the duplex at 3925 Troost. They tore down the two-by-four boards and entered the small hallway. They pried a panel off the downstairs apartment's door and entered the downstairs apartment. While they were in the downstairs apartment, they stole some of Morris's tools. After taking these tools, Bowman and his accomplice went back to the small hallway and then went to the upstairs apartment. Bowman and his accomplice stole copper piping from the upstairs apartment.
While they were in the upstairs apartment, Morris and Achiella returned to the duplex. As they approached the duplex, they realized that someone had removed the two-by-four boards from the front door. Morris and Achiella went to the downstairs apartment. At this time, they heard people in the upstairs apartment. Achiella called the police. Morris went back to the common area hallway. At this time, Bowman and his accomplice tried to exit the upstairs apartment by going through the front door but Morris held the door shut. Bowman and his accomplice then tried to exit the upstairs apartment through the common backdoor area. The back door was locked so Bowman and his accomplice entered the downstairs apartment from the backdoor area. They ran through the downstairs apartment to its front door. At this time, Bowman's accomplice struck Achiella. Bowman and his accomplice exited through the downstairs apartment's front door and passed Morris on their way out of the common area entry way.
The police eventually apprehended both Bowman and his accomplice. The State charged Bowman with, among other things, one count of burglary in the first degree in violation of section 569.160. The State's information charged that Bowman "knowingly entered unlawfully in a building, located at 3925 Troost, Kansas City, MO" while "present in such building Jerry Morris, a person who was not a participant in the crime." After the presentation of evidence, the trial court submitted Instruction No. 8 to the jury, which instructed the jury that Bowman was guilty of first-degree burglary if, among other things, the jury found that Bowman "knowingly entered unlawfully in a building, located at 3925 Troost" while "Jerry Morris was present in the building." Bowman did not object to this instruction. The jury returned a verdict finding Bowman guilty of first-degree burglary. The trial court entered judgment against him and sentenced him to a ten-year term in the Missouri Department of Corrections. This appeal follows.
In his first point on appeal, Bowman claims that the trial court erred in overruling his motion for judgment of acquittal on the charge of first-degree burglary because the State failed to present evidence on one of its proof elements: that a person who was not participating in the crime was present in the structure. Bowman concedes that Morris was present in the downstairs apartment and in the common area hallway when Bowman was in the upstairs apartment. Bowman maintains, however, that the downstairs and upstairs apartments are separate buildings for the purpose of section 569.160 and that the common area hallway is not part of either building. Thus, Bowman claims that, because Morris never entered either apartment at the same time he was committing the robberies therein, Morris was not "present in the structure."
This court's review of whether or not the trial court erred in overruling Bowman's motion for judgment of acquittal is limited to determining whether or not the evidence was sufficient to persuade a reasonable juror, beyond a reasonable doubt, of each of the crime's elements. State v. Moran, 297 S.W.3d 100, 102 (Mo. App. W.D. 2009). In conducting this review, we do not weigh the evidence. Id. Rather, we review the evidence and the reasonable inferences from that evidence in a light most favorable to the jury's verdict and disregard all contrary evidence. Id.
The Due Process Clause requires the State to prove every element of the crime charged beyond a reasonable doubt. Id. In this case, the State charged Bowman with, among other things, one count of the class B felony of first-degree burglary in violation of section 569.160. Section 569.160 states that:
A person commits the crime of burglary in the first degree if he knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein, and when in effecting entry or while in the building or inhabitable structure or in immediate flight therefrom, he or another participant in the crime:
(1) Is armed with explosives or a deadly weapon; or
(2) Causes or threatens immediate physical injury to any person who is not a participant in the crime; or
(3) There is present in the structure another person who is not a participant in the crime.
In its information in lieu of an indictment, the State alleged that:
[I]n that on or about 7th day of May, 2007, in the County of Jackson, State of Missouri, the defendant, either acting alone or purposefully in concert with another, knowingly entered unlawfully in a building, located at 3925 Troost, Kansas City, MO and owned by Jerry Morris, for the purpose of committing stealing therein, and while in such building there was present in such building Jerry Morris, a person who was not a participant in the crime.
Thus, given the law of section 569.160 and the State's information, to prove its case, the State was required to present evidence establishing that (1) Bowman knowingly entered a building located at 3925 Troost Avenue unlawfully, (2) Bowman did so with the purpose of committing the crime of stealing, and (3) Morris was present in the building while Bowman was committing the crime. MAI-CR3d 323.52; Huntley v. State, 204 S.W.3d 668, 673 (Mo. App. S.D. 2006).
Section 569.010 lists the definitions for section 569.160. It does not define the term "building." State v. Washington, 92 S.W.3d 205, 208 (Mo. App. W.D. 2002). Section 569.010(4), however, does state that "[i]f a building or structure is divided into separately occupied units, any unit not occupied by the actor is an `inhabitable structure of another[.]'" (Emphasis added.) Thus, if the apartment units in question were "occupied" at the time of Bowman's crime, there would be no question that each apartment unit would be deemed a separate "inhabitable structure," and the State would be required to prove that the elements of the charged criminal offense occurred in one or the other duplex apartment unit, rather than the overall duplex. But, in the present instance, both of the units were undergoing renovation and neither was "occupied." Thus, we question whether Bowman can successfully argue that section 569.010(4) requires that a vacant building with two unoccupied apartment units must be treated as two separate "inhabitable structures" for the purpose of the burglary statute that he was charged with.
Having said the above, the Eastern District of this court has interpreted section 569.010(4) to mean that each apartment in a multi-unit building is a separate inhabitable structure, even where one of the units is unoccupied. State v. Harris, 873 S.W.2d 887, 888-89 (Mo. App. E.D. 1994). While such an interpretation ignores the "occupancy" precondition in section 569.010(4), we stop short of refusing to follow the precedent of Harris as the facts of the present case are factually distinguishable, rendering the "one building" versus "two apartment units" debate moot.
In the case at hand, the evidence established that Morris was in the common area hallway when Bowman robbed the upstairs apartment and attempted flight from the duplex. Bowman himself concedes in his brief that, if the duplex common area was part of the upstairs apartment, then Morris was present in the structure and the State presented sufficient evidence of his guilt of the charged criminal offense.
Neither section 569.010 nor section 569.160 explains whether or not the hallways or common areas outside an apartment unit in a multi-unit building constitute part of the apartment unit for the purposes of section 569.160. Our research has disclosed no cases in Missouri addressing the issue. Thus, we must interpret the term "building" in a manner designed to give effect to the intent of the General Assembly as to whether or not the legislature intended for the interpretation of "building" to include common area hallways of a multi-unit building. State ex rel. Burns...
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