State v. O'Connell, 68668

Decision Date17 March 1987
Docket NumberNo. 68668,68668
PartiesSTATE of Missouri, Respondent, v. Thomas O'CONNELL, Appellant.
CourtMissouri Supreme Court

Donald L. Wolff, Clayton, for appellant.

William L. Webster, Atty. Gen., Kevin B. Behrndt, Asst. Atty. Gen., Jefferson City, for respondent.

ROBERTSON, Judge.

Appellant, Thomas F. O'Connell, was convicted in a jury-waived trial, Cause No. 491084, of one count of stealing $150 or more by deceit in violation of § 570.030, RSMo Cum.Supp.1984, for which he received a two-year sentence. Subsequently, appellant waived jury trials in three additional causes, Nos. 493426, 497928, and 511542, involving a total of 28 counts of stealing by deceit from other victims. 1 The parties stipulated that the evidence for these causes would be the same as that presented to the court in Cause No. 491084. Appellant was found guilty on all counts and sentenced to two years confinement in each of the three causes. His appeal from this and the first judgment and sentence were consolidated for disposition in the Court of Appeals for the Eastern District.

On appeal, appellant contends, among other things, that the information charging him with stealing by deceit was insufficient because it failed to state all of the essential facts necessary to comprise the offense. The Eastern District noted a conflict between its case, State v. Doering, 708 S.W.2d 792 (Mo.App.1986), and the Southern District's State v. Voyles, 691 S.W.2d 452 (Mo.App.1985). Based on this conflict, the Eastern District transferred the case to us. Rule 83.02. We affirm the judgment in Cause No. 491084 and dismiss and remand Cause Nos. 493426, 497928, and 511542 with directions.

I.

In two of his four points on appeal, appellant contends that the trial court erred in overruling his motion for judgment of acquittal for the reason that the State failed to make a submissible case of stealing by deceit.

When a criminal defendant waives trial by jury, the findings of the court have the force and effect of a jury verdict. Rule 27.02(b); State v. Ruff, 618 S.W.2d 722, 723 (Mo.App.1981). On review, we accept as true the evidence supporting the verdict, together with all reasonable inferences therefrom and ignore evidence and inferences to the contrary. State v. Williams, 623 S.W.2d 552, 553 (Mo.1981); Ruff, 618 S.W.2d at 723. Under this standard, we conclude that the State made a submissible case.

The evidence presented in Cause No. 491084 showed the following: On September 20, 1982, appellant purchased a 1980 brown two-door Ford Mustang Ghia from Norbert Ruch, co-owner of Midwest South County Auto Sales in St. Louis. At the time of the sale, a title and odometer statement were prepared. Mr. Ruch testified that he was well acquainted with appellant from previous business transactions, and that appellant signed the odometer statement in his presence. The odometer statement listed the Mustang's mileage as 58,750.

On December 16, 1982, Mr. Jack Carlson, responding to a newspaper advertisement, visited appellant's residence in Kirkwood, Missouri, to look at the 1980 Ford Mustang Ghia. Appellant was not home, and Carlson spoke to Mrs. O'Connell, who told him that the Mustang had belonged to her father in Indiana and was obtained from an estate sale after his death. Shortly thereafter, appellant arrived in the Mustang. The car bore Indiana license plates. Carlson test drove the Mustang for 10-15 minutes and noticed that the odometer registered approximately 31,000 miles. After discussing the price, Carlson paid appellant $4,575 for the car and drove it off. Carlson experienced trouble with the Mustang immediately and subsequently spent approximately $1,000 on repairs.

The State introduced certified copies of Indiana and Missouri title histories of the Mustang. 2 The Indiana history included an application for certificate of title in Indiana, showing the applicant's name to be Tom O'Connell, with a Carmel, Indiana address; the lien owner to be Tom O'Connell of Kirkwood, Missouri; and the seller to be South County Auto of St. Louis. The application indicated that the Mustang had been inspected by a Patrolman Dierdorf, of the Terre Haute, Indiana Police Department on September 20, 1982. Patrolman Dierdorf testified, however, that he never inspected the Mustang, that he did not sign a certificate of title for appellant, and that the signature on the title application was not his. The odometer reading was stated on the application as 31,543. The Indiana history was accompanied by a Reassignment by Registered Dealer form, showing that on the date of sale from South County Auto, the odometer reading was listed as 58,713 miles.

The Missouri title history showed that the Indiana certificate of title was assigned from a Tom O'Connell to a Jack R. and/or Virginia Carlson on December 16, 1982. The odometer reading on the assignment papers was 31,543 miles.

Appellant argues that the evidence was insufficient in that the State failed to prove: 1) that appellant knew or should have known that the mileage on the Mustang was incorrect; 2) that appellant made a representation to Jack Carlson concerning the mileage; and 3) that appellant appropriated currency of $150 or more as a result of any misrepresentation.

Appellant relied on the testimony of Gordon Pleus, Administrative Systems Manager for the Federal Bureau of Prisons at the U.S. Penitentiary in Terre Haute, Indiana, to show that appellant was in federal custody from June 30, 1982, until November 18, 1982, and therefore could not have been in St. Louis to purchase the Mustang from Norbert Ruch, to sign the odometer statement, or to make out the application for title in Indiana on September 20, 1982.

Accepting the State's evidence as true, appellant's signature on the odometer statement raises a strong inference that he knew the actual mileage of the Mustang was 58,750. As to the Indiana title application, Patrolman Dierdorf testified that if his signature for an inspection was forged, an Indiana certificate of title could be obtained through the mail without ever transferring the car itself to Indiana. This evidence indicates that whether appellant was actually in federal custody or not is irrelevant to the fact that he signed an application for and received an Indiana certificate of title showing an odometer reading of 31,543 miles for the same car he had just purchased which he knew registered 58,750 miles. Further, the evidence showed that appellant was present when Carlson purchased the Mustang, and that the assignment papers signed by appellant indicated the mileage to be 31,543. The knowledge element was established.

Appellant contends that the evidence was insufficient to prove that he made a representation to Jack Carlson concerning the mileage on the Mustang because again, he did not know that the mileage had been altered, and because he did not discuss mileage with Carlson. We have found the evidence sufficient to prove appellant's knowledge. Jack Carlson testified that while he did not remember whether the advertisement indicated the mileage on the Mustang, he did remember discussing the subject while at appellant's residence. Even assuming that appellant did not directly state to Carlson that the car had only 31,000 miles on it, he did not reveal to him that the car actually registered 58,750 miles when he bought it from South County Auto months before. He did, in fact, sell a vehicle registering a mileage that was incorrect. The evidence is sufficient to prove that a representation was made.

On the issue of the amount appropriated by appellant from Carlson, the State relied on testimony from Carlson, Ruch, and Detective Donald Hearst. Ruch and Hearst were both experienced in determining the value of used cars. Ruch testified that a Mustang Ghia would be worth $1,000 less with 58,000 miles as opposed to 31,000. Detective Hearst also indicated $1,000 as the price difference. Accepting this evidence as true, the court could find that appellant appropriated at least $150 from Carlson.

II.

Appellant next challenges the sufficiency of the State's information charging him with stealing by deceit under § 570.030.

The information upon which appellant was tried 3 read as follows:

The Grand Jurors of the County of St. Louis, State of Missouri, charges [sic] that the defendant in violation of Section 570.030, R.S.Mo., acting with others, committed the class C Felony of stealing, punishable upon conviction under Sections 558.011.1(5) and 560.016, RSMo in that, on or about December 16, 1982, at approximately 12:00 noon, at 447 Windsor Spring, Kirkwood, in the County of St. Louis, State of Missouri, the defendant appropriated U.S. Currency, which said property was in the possession of Jack Carlson, and defendant appropriated such property from Jack Carlson and with the purpose to deprive victim thereof by deceit, to wit: in that the defendant and another made a material representation to said victim, to wit: that an automobile had mileage of 31,543 when in fact this was not true, and in reliance thereon, said victim purchased said automobile from defendant and others.

Appellant contends that the information is inadequate to charge him with stealing by deceit under § 570.030 because it contains no specific allegation that he did not believe the mileage shown on the odometer to be true, 4 and thus failed to state all the essential facts necessary to comprise the offense. Appellant relies on State v. Kesterson, 403 S.W.2d 606 (Mo.1966), to support his argument. The issue presented to this Court on transfer is whether the Kesterson requirement that all elements of "deceit" be specifically charged is still controlling in light of the fact that the term "deceit" is now statutorily defined. We hold that it is not.

The purpose of an indictment or information is to inform the accused of charges against him so that he may prepare an adequate defense...

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