State v. Boyd, 43781

• Decision Date: 13 October 1981
• Docket Number: No. 43781,43781
• Citation: 629 S.W.2d 434
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Renaldo BOYD, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 434

629 S.W.2d 434

STATE of Missouri, Plaintiff-Respondent, v. Renaldo BOYD, Defendant-Appellant.

No. 43781.

Missouri Court of Appeals, Eastern District, Division Three.

Oct. 13, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Nov. 20, 1981.

Application to Transfer Denied Jan. 18, 1982.

Mary C. Dames, Asst. Public Defender, Clayton, for defendant-appellant.

John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

SNYDER, Judge.

Appellant appeals from a conviction of burglary in the second degree, § 569.170, RSMo 1978. He was sentenced to twelve years in the Missouri Department of Corrections. The judgment is affirmed.

Appellant raises two points on appeal. First, appellant asserts that the evidence was insufficient to sustain the verdict. Second, appellant claims that the trial court erred in refusing to give appellant's offered instruction on trespass in the first degree as a lesser included offense of burglary in the second degree.

In determining the sufficiency of the evidence this court considers as true the evidence most favorable to the state and all favorable inferences to be drawn therefrom and disregards all evidence to the contrary. State v. Alexander, 581 S.W.2d 389, 390(1) (Mo.App.1979).

The state's evidence in this case is entirely circumstantial. On February 12, 1980 at approximately 7:30 p. m. a black man came up to the door of Mary Jane Peters' home in Creve Coeur, St. Louis County, Missouri. Mrs. Peters later identified that man as the appellant. Mrs. Peters lived roughly three-fourths of a mile from the site of the burglary. The appellant came up to Mrs. Peters' door and asked for the names of her various neighbors, explaining that he and his companion were invited to a party but could not remember the name of the host or his address. Mrs. Peters gave him the name of one of her next-door neighbors and then directed him to that neighbor's house. Appellant told her he would go there. Instead appellant drove his automobile in the opposite direction. Becoming suspicious, Mrs. Peters called the police and reported the incident.

Shortly after Mrs. Peters' call, Officer Glenn Eidman of the Creve Coeur police patrolled the streets near Mrs. Peters' home. During this patrol he saw a vehicle in front of the residence located at 11528 Lakeshore Drive. Officer Eidman turned his spotlight on the car and took down the license plate number. The car turned out to be registered to appellant's brother.

About the time of Officer Eidman's investigation Richard Dear, a guest at the residence located at 229 New Salem, saw two black men running across some common ground located between the rear of the 11528 Lakeshore Drive residence and the rear of 229 New Salem. The two men came within 10 to 15 yards of Dear. One of the men fit appellant's description. The two men split up. One ran down the driveway at 229 New Salem, and across the street. Dear called the police. Dear testified that there was eight inches of snow on the ground that night.

Officer Michael Molitor responded to Dear's call. Dear showed Officer Molitor where the man's footprints in the snow started across from 229 New Salem. The only other set of footprints across the street were roughly 10 to 15 feet from the set Dear pointed out. Officer Molitor followed those footprints to a wooded area where he found appellant lying in some bushes. Officer Molitor testified that there were no other footprints in the wooded area. When asked what he was doing there appellant told Officer Molitor that he had been visiting a girlfriend whose name and address he could not remember and that he had been robbed and then left in the woods. Later appellant told the police he had been hunting.

Officer Molitor, after turning custody of appellant over to another officer, returned to 229 New Salem. He backtracked the footprints of the men that ran past Dear. They were the only sets of footprints in the snow. The tracks led to the patio door of the 11528 Lakeshore Drive residence. The door had been broken into; water and snow were on the floor inside of the door. The house had been vacant for two weeks. Upon inspecting the house the officer found that it had been ransacked. In the bedroom he found jewelry stuffed into pillow cases. Officer Molitor also found footprints leading from the patio door back to the car parked in front of 11528 Lakeshore Drive. When the owner of the house returned he reported that nothing was missing. The owner had not given appellant permission to enter his house.

Appellant offered no evidence in his defense.

Appellant's first point on appeal is that the evidence is insufficient to sustain a guilty verdict. The point is ruled against appellant.

A submissible case may be made out based solely on circumstantial evidence if the facts and circumstances are consistent with each other, consistent with the hypothesis of the appellant's guilt, inconsistent with the hypothesis of innocence, and clearly point to the accused's guilt so as to preclude any reasonable hypothesis of innocence. However, the facts and circumstances do not have to conclusively prove guilt or totally eliminate the possibility of innocence. State v. Lenza, 582 S.W.2d 703, 707(1) (Mo.App.1979) cert. denied 444 U.S. 1021, 100 S.Ct. 678, 62 L.Ed.2d 652 (1980); State v. Alexander, 581 S.W.2d 389, 390(2, 3) (Mo.App.1979). This court's review on this issue is limited to whether substantial evidence supports the jury's verdict. This court does not substitute its judgment for that of the jury; nor does this court weigh the evidence. State v. Clark, 596 S.W.2d 747, 749(1-4) (Mo.App.1980).

This court finds substantial evidence to support the jury's verdict. There clearly is evidence of a burglary. The footprints led directly from the car in front of the burglarized house to the point of entry into the house and then to the spot in the woods where the officer found appellant. Appellant also had no reasonable explanation for why he was in the woods. Possible hypotheses of innocence must posit that appellant just happened to be at the end of the trail in the woods without making any other trail of his own in the snow. He could not have been in the woods before it snowed because he was at Mrs. Peters' door just a few minutes earlier. Other hypotheses of innocence must posit that another burglar broke into the house and half-robbed it, that appellant just happened to stop at the burglarized, half-robbed house, that he just happened to walk directly to the same door that the earlier burglar broke into, that he ran away and lay down in some bushes for some reason other than consciousness of guilt, and that he told two inconsistent and implausible stories to the police for some reason other than to avoid punishment. Neither alternative hypothesis of innocence is reasonable.

Appellant argues the footprints are of no probative value because the officer failed to measure and compare the footprints to appellant's shoe. Appellant cites State v. Murphy, 356 Mo. 110, 201 S.W.2d 280 (banc 1947) to support this...