State v. Crow, 11394

• Decision Date: 07 May 1980
• Docket Number: No. 11394,11394
• Citation: 600 S.W.2d 162
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Glen Eugene CROW and Roy Maggard, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 162

600 S.W.2d 162

STATE of Missouri, Plaintiff-Respondent, v. Glen Eugene CROW and Roy Maggard, Defendants-Appellants.

No. 11394.

Missouri Court of Appeals, Southern District, Division Four.

May 7, 1980.

Motion for Rehearing or to Transfer Denied May 28, 1980.

Application to Transfer Denied July 15, 1980.

David Robards, Public Defender, Joplin, for defendants-appellants.

John Ashcroft, Atty. Gen., Kathleen Mills, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

MAUS, Judge.

The defendants were separately charged under the Second Offender Act with the second degree burglary of a supermarket. By agreement, they were jointly tried. Each was found guilty by the jury and sentenced by the court to ten years' imprisonment. They filed a joint notice of appeal to the Supreme Court asserting that court had jurisdiction because of constitutional implications of the Second Offender Act (former § 556.280 RSMo) and its repeal. The Supreme Court transferred the appeals to this court "in which jurisdiction is vested". Nevertheless, the defendants urge this court to return the appeals to the Supreme Court. This court declines to do so.

The defendants contend the evidence is insufficient to support their convictions. This requires a review of the evidence. In such review "(t)he facts in evidence and all favorable inferences reasonably to be drawn therefrom must be considered in the light most favorable to the state and all evidence and inferences to the contrary must be disregarded". State v. Franco, 544 S.W.2d 533, 534 (Mo. banc 1976), cert. den. 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977). So reviewed, the following is a brief summary of the facts.

The store was closed by the assistant manager at the close of business on Wednesday, November 22, 1978. It was closed Thursday, which was Thanksgiving. At approximately 3:00 a. m. on Friday, as the result of a phone call, several units of the Joplin Police Department were dispatched to the scene. The first officers to arrive checked all of the doors, found them locked, and kept the premises under surveillance. There had been no entry through the roof. While the officers were waiting for a key, two men were seen running inside the store from a stock room on the north side toward the rear wall. While the officers could not from this observation identify the defendants, as no one entered or left the building except the defendants when they were captured, it is apparent these two men were the defendants. After the assistant manager arrived with a key the officers began a search from the front to the rear. As they approached the rear they saw a hole in the concrete or cinder block wall. The hole was behind shelves along the rear wall on which wine was displayed and opened into the motor room at the rear of the building. The motor room housed the motors for the air conditioning and refrigeration equipment. It was a small room constructed by using the rear wall of the display area as one wall of the motor room. The wall was solid between the two areas. The only normal access to the motor room was through a door which opened to the outside. From the outside the lock on this door opened by a key but from the inside by flipping. There were pry marks on the outside of that door although no one could pinpoint when the damage occurred. The four shelves in front of the hole were about 18 inches wide and about 18 inches apart. The shelves were normally backed with a particle or fiberboard. The bottles of wine in front of the hole had been removed or pushed to the side. The backing in front of the hole had been torn from the shelves and had slipped down between the shelves and the wall.

Upon reaching the rear wall, one officer knelt by the hole and shouted the ambiguous command "freeze and come out". The officer stationed outside heard a clicking, the motor room door opened, the defendants emerged and were promptly arrest. They were wearing gloves. There was a light amount of block debris on the floor in front of the shelves. There was a heavy amount of debris in the motor room along with several bottles of wine, a sledgehammer, a hammer, brace and bit, screwdriver and a punch. There were no fingerprints.

The defendants' attack upon the sufficiency of the evidence is based upon the proposition the state's case is based upon circumstantial evidence and the facts and circumstances must exclude every reasonable hypothesis of their innocence. They correctly assert that breaking out is not burglary, State v. Ewing, 298 S.W.2d 439 (Mo.1957), and argue that the evidence is as consistent with the hole having been made to break out as to break in. They point to the fact no bottles of wine were broken, some were pushed aside in front of the hole, and there was block debris on the floor in front of the wine shelves. They emphasize the shelves were backed with "steel or some other sturdy material."

This court cannot agree that the state's case was based upon circumstantial evidence. Two men, obviously the defendants, wearing gloves, were seen in the store, which had a hole knocked in the back wall. State v. Stead, 473 S.W.2d 714 (Mo.1971). Those circumstances alone support the verdicts. State v. Hawkins, 491 S.W.2d 342 (Mo.1973); State v. Brewer, 549 S.W.2d 642 (Mo.App.1977). However, giving the defendants the benefit of this assertion, as the trial court did in giving MAI-CR 3.42, the case will be considered on that basis. The record does not support their statement the shelves were backed with steel or some sturdy material. The testimony was it some type of particle board. The pictures introduced by defendants establish it was not of sturdy quality and that portions had been broken from the shelves and slipped down between the shelves and the wall. The jury could have reasonably found a hole was made from the motor room big enough to break the backing and allow the broken portion to slip down, remove some bottles of wine from the shelves and push others aside, and then complete the hole. This would account for the bottles of wine in the motor room as well as the heavy debris in the motor room and light debris on the floor in front of the shelves. The circumstances demonstrating the gossamer qualities, if not impossibility, of defendants' hypothesis are many. Prominent is the absence of any other point of entry. If it is defendants' theory they entered during business hours and concealed themselves until after closing, it seems most remote they could have entered unnoticed carrying a sledgehammer, hammer, brace and bit, screwdriver and a punch. Had the hole been made from the inside, why were the bottles of wine placed on the floor of the motor room rather than the display area. The defendants' hypothesis is virtually destroyed by the well-nigh impossibility the defendants could wield their implements through the wide shelves in such a manner as to knock a hole in a solid concrete block wall without damaging those shelves or breaking the bottles of wine pushed aside. The facts and circumstances need not exclude every hypothesis of innocence, only a reasonable hypothesis. State v. Franco, supra. The defendants' hypothesis is not of that quality. The evidence was sufficient to support the convictions. State v. Schneider, 585 S.W.2d 114 (Mo.App.1979); State v. Anderson, 555 S.W.2d 362 (Mo.App.1977).

Another point of the defendants is that a new trial should have been granted because the informations were uncertain as to whether the offense charged concerned the motor room or supermarket building so that the convictions fail to bar a further prosecution. To support this point they argue there were two buildings, the store building and motor room, and in so doing with remarkable forensic agility state "the evidence showed that there were actually forceable break ins with regard to separate buildings". (emphasis added) They then argue that breaking into the motor room was not with the requisite intent to constitute that breaking and entering a burglary, citing State v. Watson, 383 S.W.2d 753 (Mo.1964). That case is not controlling for it involved two separate but adjoining buildings occupied by separate businesses owned by different proprietors. In this case the motor room was an integral part of one building. The two areas were one building by function and occupancy. It was not necessary that there be direct access by a door between the two areas. Compare State v. Parker, 501 S.W.2d 3 (Mo.1973); State v. Hutchinson, 111 Mo. 257, 20 S.W. 34 (1892). The breaking of the inner wall was sufficient to constitute burglary. State v. Burke, 462 S.W.2d 701 (Mo.1971). The defendants' assertion that because of the uncertainty of the information they were handicapped in preparing their defense is belied by their statement "the theory of defense posited at trial" was that the hole in the wall was to break out rather than break in. Their argument under this point, which point does not mention instructions, that the verdict directing instructions did not sufficiently direct the jury's attention to that breaking has not been preserved for review. That issue does not follow the point relied on, State v. Flynn, 541 S.W.2d 344 (Mo.App.1976), and the instructions referred to are not set forth as required by Rule 84.04(e). State v. Hoelting, 562 S.W.2d 703 (Mo.App.1978). The informations referring to a store at a given address, the property of a designated company, were sufficient. State v. Rist, 456 S.W.2d 13 (Mo.1970); State v. Ball, 432 S.W.2d 265 (Mo.1968).

The defendants' next two points concern the effect of the adoption of the new criminal code, effective January 1, 1979, and the resulting repeal of the applicable prior laws. The offense in question took place November 24, 1978. The trial was held on January 29, 1979. The defendants assert that under the prior law the maximum punishment for second degree burglary was 10 years' imprisonment, but that under the new code the maximum...