State v. Davis, 40040
| Decision Date | 28 November 1978 |
| Docket Number | No. 40040,40040 |
| Citation | 574 S.W.2d 940 |
| Parties | STATE of Missouri, Respondent, v. Wiley DAVIS, Appellant. . Louis District, Division Three |
| Court | Missouri Court of Appeals |
Christelle Adelman-Adler, Asst. Public Defender, 22nd Judicial Circuit, St. Louis, for appellant.
John D. Ashcroft, Atty. Gen., John M. Morris, III, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant was convicted of second degree burglary and sentenced under the Second Offender Act to five years imprisonment. On appeal defendant contends that the trial court erred in refusing to give a lesser and included offense instruction on malicious destruction of property. We affirm.
At about 5:30 A. M. Scott Rooks went to his place of business a barber and beauty shop in St. Louis to open for his day's business activities. As he approached the premises, he noted that the glass door to the beauty shop was broken and the door open. Mr. Rooks entered, called the police, and to defendant's discomfiture, discovered defendant inside the barber shop with a screwdriver in hand. When asked his uninvited purpose inside the building, defendant responded that he was merely investigating who had broken the window but fled when confronted by Mr. Rooks' pistol. After a short chase defendant was captured by Mr. Rooks and a friend and held for police and his ultimate arrest.
On appeal, defendant contends only that the evidence supports the submission of an instruction for the lesser and included offense of malicious destruction of property. He argues that the only evidence adduced was the breaking of the front door glass. No items of personal property within the premises were taken or even moved. He maintains that if evidence exists supporting both burglary and malicious destruction of property an instruction on the latter is mandatory.
It is clear that the evidence supports defendant's conviction of second degree burglary. His uninvited presence within the building which had been broken into where goods, merchandise or items of value were kept is sufficient inference of defendant's intent to burglarize the premises regardless of the fact that nothing had been stolen. State v. Lawrence, 566 S.W.2d 243 (Mo.App.1978); State v. Arnold, 534 S.W.2d 836 (Mo.App.1976); State v. Smith, 521 S.W.2d 38 (Mo.App.1975); State v. Carson, 501 S.W.2d 503 (Mo.App.1973). Here, the proof sustains the charge of burglary in the second degree. Therefore, as stated in State v. Hernandez, 462 S.W.2d...
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State v. Crow, 11394
...not a lesser included offense. State v. Hernandez, 462 S.W.2d 790 (Mo.1971); State v. Hadley, 364 S.W.2d 514 (Mo.1963); State v. Davis, 574 S.W.2d 940 (Mo.App.1978). The defendants' next point is that the trial court erred in failing to give MAI-CR 2.72. However, this point has not been pre......
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State v. Jenkins, 52575
...and conviction regardless of the fact that nothing was stolen. State v. McBurnett, 694 S.W.2d 769, 773 (Mo.App.1985); State v. Davis, 574 S.W.2d 940, 941 (Mo.App.1978). Police testimony established that the fingerprints removed from the interior window were those of the defendant. Fingerpri......
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State v. Milligan, WD
...into a building where goods, merchandise, or items of value are located is sufficient to prove an intent to steal. State v. Davis, 574 S.W.2d 940, 941 (Mo.App.1978) and State v. Lawrence, 566 S.W.2d 243, 246-47 (Mo.App.1978). Appellant, however, argues that "in all of these cases, it was ev......