State v. Chevalier, WD

• Decision Date: 22 September 1981
• Docket Number: No. WD,WD
• Citation: 623 S.W.2d 42
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Daniel J. CHEVALIER, Defendant-Appellant. 31923.
• Court: Missouri Court of Appeals

Page 42

623 S.W.2d 42

STATE of Missouri, Plaintiff-Respondent, v. Daniel J. CHEVALIER, Defendant-Appellant.

No. WD 31923.

Missouri Court of Appeals, Western District.

Sept. 22, 1981.

Willard B. Bunch, John Edward Cash, Kansas City, for defendant-appellant.

John Ashcroft, Atty. Gen., Suzanne M. Boersig, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Before SOMERVILLE, C. J., KENNEDY, P. J., and SHANGLER, J.

SOMERVILLE, Chief Judge.

Defendant was charged with stealing property having a value in excess of $150.00, a class C felony. Section 570.030, RSMo 1978. A jury found defendant guilty as charged and assessed his punishment at thirty days imprisonment in the Cass County jail. Judgment entered and sentence imposed accordingly.

Defendant confines himself on appeal to two points of error, both of which may be sharply drawn in form of questions. Did the trial court err in refusing to give Instruction No. 12 (MAI-CR 2d 3:30, Alibi) requested by defendant? Did the trial court err in failing to give of its own volition an instruction adapted from MAI-CR 2.37.1(4) by reason of defendant's purported injection of evidence of a "special negative defense"? The significance of the legal issues on appeal is noticeably disproportionate to the sentence handed down.

As the sufficiency of the evidence to support the guilty verdict stands unchallenged, the following compilation of the evidence will focus principally upon the precise issues raised on appeal.

According to the state's evidence, the Kansas City Southern Railroad, on September 5, 1979, was the owner of approximately 3500 railroad ties stored on its right-of-way along a mile and three-quarters stretch of its track running south of the "Jaudon Store" in Cass County, Missouri. This stretch of Kansas City Southern Railroad track paralleled Holmes Road and lay approximately four miles southwest of Belton, Missouri.

On September 10, 1979, at a point one-half mile south of the "Jaudon Store", approximately 176 railroad ties were discovered missing from where they had been stored on the railroad right-of-way. ¹ The missing railroad ties were readily identifiable as they were new and had "KCS-79" stamped on one end and "127" stamped on the other end. They were valued at $17.00 per tie.

On September 10, 1979, defendant contacted a man in Belton, Missouri, and sold him some of the missing ties with which to build a "retaining wall". Defendant, during the course of doing so, told the man he had approximately 160 ties "which had never been run over by a train."

Following an investigation by the Cass County Sheriff's Office and a special agent of the railroad, 28 of the missing ties were found at and removed from defendant's home in Belton, Missouri.

A single witness was presented by defendant. This witness testified that he was a friend of long-standing of defendant and was with him from approximately 9:00 P.M. on the evening of September 9, 1979, to approximately 2:30-3:00 A.M. on the morning of September 10, 1979. The two spent part of this time in a cocktail lounge. They left the cocktail lounge at approximately 12:30 A.M. on September 10, 1979, in defendant's "short bed" truck. While proceeding along Holmes Road they noticed some railroad ties partially on the travel portion of the road and partially in a ditch along the side of the road. They stopped to remove the railroad ties from the travel portion of the road. The railroad ties appeared to be new and unused. It was then decided to take the railroad ties to defendant's home because defendant "figured he could use them ... over at his house." Three trips, carrying nine or ten railroad ties per trip, were made to defendant's home. Defendant's friend was dropped off at his home at approximately 2:30-3:00 A.M. on September 10, 1979.

Defendant's two points on appeal appear to be theoretically incompatible. On the one hand, defendant claims the trial court erred in not giving his requested alibi instruction, and, on the other hand, claims the trial court erred in failing to give of its own volition MAI-CR 2d 2.37.1(4) by reason of defendant's injection of purported evidence of a "special negative defense". Defendant, without reservation or mention of any distinguishing characteristics, relies on his friend's testimony in toto to support both points.

In theory, the defense of alibi rests on the proposition that if the nature of an offense is such as to require an accused's presence at the scene of the crime he cannot be found guilty if he was in fact elsewhere at the time. Conversely, if the state fails to prove that the accused was present at the scene of the charged offense at the time of its occurrence, when, without accused's presence, it would be impossible to find him guilty of the charged offense, the state has failed to prove an essential element of its case. State v. Hubbard, 351 Mo. 143, 171 S.W.2d 701 (1943). The burden rests on the state, under circumstances just described, to affirmatively prove an accused's presence at the scene of the charged offense; hence, no burden rests on an accused to prove an alibi defense. State v. Reece, 324 S.W.2d 656, 661 (Mo.1959).

By way of contrast, defendant's second claim of error, predicated on the trial court's failure to instruct the jury in conformity with MAI-CR 2d 2.37.1(4), ostensibly proceeds on the theory that although defendant took the railroad ties, albeit from a location different from that shown by the state's evidence, he did so under circumstances which negated the requisite intent to steal.

In summation, the defense of alibi in a pure theoretical sense, addressed with reference to larceny, disclaims any taking of property as the accused was allegedly not present at the time and place the offense occurred, while a special negative defense in a pure theoretical sense, addressed with reference to larceny, assumes an accused's presence at the time and place the offense occurred under circumstances which allegedly negate the requisite intent to steal.

Taking cognizance that the two points of error advanced by defendant rest on separate and distinct theories, defendant's first point lends itself to being disposed of on the ground that the evidence relied upon was theoretically inconsistent with the defense of alibi and, at best, merely purported to explain the whereabouts of the railroad ties when defendant took possession of them. See State v. Dale-Williams, 17 N.C.App. 121, 193 S.E.2d 306 (N.C.App.1972).

Even if the evidence relied on by defendant was not theoretically inconsistent with the defense of alibi, it accounted for defendant's presence for only a part of the time during which the larceny in question was alleged to have been committed. The information charged that the offense occurred "on or about September 10, 1979". The evidence failed to account for defendant's whereabouts after 2:30-3:00 A.M. on the morning of September 10, 1979. Evidence which accounts for an accused's presence for only a part of the time during which a criminal offense could have been committed will not support an alibi defense. State v. McLane, 55 S.W.2d 956, 958 (Mo.1932); State v. Floyd, 598 S.W.2d 517, 519 (Mo.App.1980); and State v. Franklin, 591 S.W.2d 12, 14 (Mo.App.1979).

Having concluded that the evidence, for any one of several reasons, did not support defendant's alibi defense, the trial court did not err in refusing to give defendant's requested alibi instruction. State v. McLane, supra; State v. Floyd, supra; and State v. Franklin, supra.

Whether or not the trial court erred in not giving MAI-CR 2d 2.37.1(4) also turns on the evidence. Defendant, in an argument notable for its brevity and sweeping generalities, appears to contend that the evidence he presented afforded a basis from which the jury could find that he believed that...