State v. Cox

• Decision Date: 02 September 1975
• Docket Number: No. 36686,36686
• Citation: 527 S.W.2d 448
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Raymond COX, Defendant-Appellant. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 448

527 S.W.2d 448

STATE of Missouri, Plaintiff-Respondent, v. Raymond COX, Defendant-Appellant.

No. 36686.

Missouri Court of Appeals, St. Louis District, Division Three.

Sept. 2, 1975.

Thomas J. Nold, Asst. Public Defender, St. Louis, for defendant-appellant.

John C. Danforth, Atty. Gen., Timothy J. Verhagen, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for plaintiff-respondent.

SIMEONE, Presiding Judge.

Defendant-appellant Raymond Cox, was charged, tried and found guilty by a jury of the offense of burglary, second degree. § 560.045, RSMo 1969. In accordance with the jury verdict, the court, after overruling appellant's motion for new trial, granting allocution and finding him to be a second offender, sentenced him to ten years in the department of corrections. He appeals. We affirm.

On this appeal, defendant-appellant raises two points: (1) 'The trial court erred in denying defendant's motion for judgment of acquittal at the close of all the evidence, because the evidence adduced failed to prove the necessary element of an intent to steal,' and (2) '(t)he trial court erred in overruling the defendant's objection to the admissability (sic) of . . . the defendant's bib overalls (because they) had little probative value and had a highly prejudicial effect on the jury.'

Appellant's first point is that the evidence is insufficient to make a submissible case. Resolution of the defendant's appeal compels us to review the evidence in the light most favorable to the state considering as true all the evidence favorable to the state, direct and circumstantial, and all reasonable inferences deducible therefrom, and we disregard all evidence and inferences unfavorable to the state. Our function is not to substitute our judgment for that of the jury, but we determine only whether the evidence favorable to the state is sufficient to make a submissible case. State v. Cain, 507 S.W.2d 437, 438 (Mo.App.1974); see also State v. Brunson, 516 S.W.2d 799, 801 (Mo.App.1974).

At the time of the alleged burglary, July 17, 1974, Mr. John Neal owned a two-story house in the 1300 block of Warren Avenue in the City of St. Louis. He lived in the upstairs portion of the house (1307a Warren) with four of his children. His stepdaughter also lived in the upstairs portion in another 'apartment.' To get to the Neal living quarters it is necessary to pass through a gangway leading to the back of the house and then up a flight of steps to a porch. There are two doors that lead from the porch to Mr. Neal's 'apartment.' The 'one on the side' was permanently nailed shut by Mr. Neal. The door that is always used can only be locked by the use of a hook on the inside. These two doors provide the only means of egress and ingress to the Neal 'apartment.'

On the morning of July 17, 1974, John Neal left for work at the American Foundry Manufacturing Company at about 7:20 a.m. He left his son Larry, age ten, home alone. ¹ Sometime that day, Larry went outside to play with his friend David Kessinger. As he left the apartment, he shut the door behind him. Later in the day, the two boys started to go back into the Neal apartment. From the porch Larry saw a man 'looking out' the kitchen window. David entered the apartment. The man did not talk to Larry, but Larry stated that '(h)e asked my friend did he want to use the bathroom.' Both boys then ran. Larry 'ran' down the stairs and to the American Foundry to get his father. ² He told his father that he saw somebody in the house. Mr. Neal and Larry then returned to the house. Mr. Neal started to enter the house but saw a bag with 'blue clothes in it' sitting by the door and decided 'I better not go in, and I better go down and call the police. And I called the police.' Mr. Neal and Larry then waited outside for the police to arrive.

At about 4:16 p.m., Police Officer Kurt Shrum and his partner, Harold Nester, received a radio call to proceed to 1307a Warren. When they arrived, they found Mr. Neal and Larry waiting outside. Several other police officers arrived at about the same time. ³ The police then proceeded up the steps leading to Neal's apartment. Both doors were secured from the inside. One of the doors 'appeared to be opened or forced open in some manner. There were force marks on the door, but I had to reach inside and remove a nail that was secured.' Officer Shrum also testified that he found a bent 'bracing bit' lying on the porch. The police entered the apartment and found the defendant standing in the kitchen. He had a mustache and was wearing a black nylon jacket and blue bib overalls.

Mr. Neal and Larry followed the police into the apartment. Upon searching the apartment, Mr. Neal discovered that the chest in which he keeps his clothes had been tampered with. The chain lock which secures the chest was broken. It had been secured when he left for work that morning. Mr. Neal also noticed that an extension cord that he kept in a closet next to the chest was missing. A radio that had been on a chair when he left for work was moved to the kitchen table. ⁴ Nothing else was missing.

Officer Shrum arrested Cox for burglary, handcuffed him, conducted a cursory weapon search and took him to the police station. ⁵ At the station, the police searched the defendant and took his clothes, except underwear. Officer Shrum noted that the overalls that the defendant was wearing were peculiarly constructed--'inside of each lower pants leg is another piece of material that looks like part of another trouser leg, and it's sown (sic) to the inside. Then there's a shoestring drawn through each, so that when it's on the legs, the inside part can be drawn shut and tied.' At trial, out of the hearing of the jury, defendant objected to the introduction of the overalls as being prejudicial and of no probative value. The court overruled the objection, and the overalls were admitted.

Officer Shrum found an electric extension cord in one of the inside lower leg 'pockets.' ⁶ He initialed it and placed the department serial number on the plug. Later that evening, one of the officers took the cord to Mr. Neal for identification. Neal indentified the cord as the one missing from his closet. ⁷

At the close of the state's case, the defendant moved for judgment of acquittal on the ground that the state failed to prove the crime charged. The motion was overruled. The defendant offered no evidence, and at the close of all of the evidence the defendant again moved for judgment of acquittal which was again overruled. The court instructed the jury. The jury returned a verdict of guilty. Thereafter, on October 29, 1974, the court, having found from the evidence and the record that defendant had been convicted of a felony in Missouri, assessed punishment at imprisonment in the department of corrections for a period of ten years.

On November 21, 1974, the court overruled defendant's motion for new trial, and on the same day, allocution having been granted, the court rendered judgment and pronounced sentence in accordance with the jury verdict.

As stated, defendant contends that the evidence is insufficient to make a submissible case.

The state's case is based on both direct and circumstantial evidence. In order to make a submissible case based upon circumstantial evidence, however, the facts and circumstances must (1) be consistent with each other, (2) be consistent with the hypothesis of the guilt of the accused, (3) be inconsistent with innocence, and (4) point so clearly to guilt as to exclude every reasonable hypothesis of innocence. State v. Cain, supra, 507 S.W.2d at 441; State v. Gamache, 519 S.W.2d 34, 40 (Mo.App.1975). ⁸

The elements of the offense of burglary second degree are the breaking and entering with the intent to commit a felony or to steal therein. § 560.045; State v. Little, 501 S.W.2d 562, 563 (Mo.App.1973). To constitute a breaking, the force necessary need be no more than the pushing open of a door which has been shut. State v. Bradley, 485 S.W.2d 408, 412 (Mo.1972). And it has been said that the opening of an unlocked door constitutes a forcible breaking within the meaning of the second degree burglary statutes. State v. Fritz, 379 S.W.2d 589, 590 (Mo.1964).

The requisite intent to steal accompanying a charge of burglary can, of course, be proved from the circumstances of the case, and even where no stealing is shown, the intent to steal may be shown by circumstantial evidence. State v. Fritz, supra, 379 S.W.2d at 590; State v. Faber, 499 S.W.2d 790, 794 (Mo.1973); State v. Beckemeyer, 423 S.W.2d 687, 688 (Mo.1968). Intent is generally not susceptible of direct proof and may therefore be established by the circumstances of the case. State v. McCreary, 504 S.W.2d 132, 135 (Mo.App.1973); State v. Mills, 495 S.W.2d 715, 716 (Mo.App.1973).

Tested by these legal principles, we hold that the evidence when viewed in the light most favorable to the state is sufficient to make a submissible case. We have the following: A man was seen inside the Neal apartment by Neal's son, Larry. Larry had shut the door when he went out to play. When the police arrived, they found both doors to the apartment secured. They found the defendant inside the apartment. One of the doors had 'force marks' on it. The lock on Mr. Neal's clothes chest had been tampered with, and his radio had been moved from a chair to the kitchen table. An electric extension cord was missing. The defendant was arrested and taken to the police station for processing. At the station, he was searched. It was discovered there that his overalls had 'pockets' sewn on the inside lower legs. Inside one of these 'pockets' the police found an electric extension cord which was later that evening identified by Mr. Neal as the one stolen from his apartment.

This evidence is consistent with the state's hypothesis that defendant broke into and entered Neal's apartment intending to steal and is sufficient to submit the...