State v. Davison
| Decision Date | 10 April 2001 |
| Parties | (Mo.App. S.D. 2001) State of Missouri, Respondent v. Jeff Davison, Appellant. WD58231 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Nodaway County, Hon. John C. Andrews
Opinion Summary: Defendant-Appellant Jeff Davison appeals the circuit court's judgment convicting him of seven counts of receiving stolen property in violation of § 570.080 RSMo 1994.
REVERSED AND REMANDED.
Division Two holds: The court erred in instructing the jury in the disjunctive -- i.e., that Mr. Davison should be found guilty if it found that he either "retained or disposed of" the stolen property -- in that the evidence was insufficient to support a jury conclusion that Mr. Davison had "disposed of" any property. This error resulted in prejudice to Mr. Davison.
Although the State's evidence was sufficient to prove that the seven pieces of property retained by Mr. Davison on a single occasion were stolen from different owners at different times, it was not sufficient under Section 570.080 to show that he received the property at different times or to show seven separate acts of retention.
Furthermore, the evidence was insufficient to support his conviction on Count 2A, because the State adduced no evidence from which a juror could reasonably have concluded that the toolbox, which was the subject of Count 2A, was the toolbox that was, in fact, recovered from the storage unit rented by Mr. Davison.
As to Counts 5, 6 and 7, however, this Court disagrees that the "doctrine of destructive contradictions" renders insufficient the evidence underlying Mr. Davison's convictions on those counts.
As to Mr. Davison's fourth point, he can on remand admit an interest in the storage locker for the limited purposes of his motion to suppress, and thus this Court does not reach the issue of standing here. Concerning the sufficiency of the affidavit underlying the warrant to search Mr. Davison's storage units, the factual basis supplied by officers in the affidavit was more than sufficient to provide probable cause.
Defendant-Appellant Jeff Davison appeals the circuit court's judgment convicting him of seven counts of receiving stolen property in violation of Section 570.080 RSMo 19941. Mr. Davison raises four points on appeal. In Point I, he claims that the trial court erred in instructing the jury that it should convict him if it determined that he either "retained or disposed of" the property in question, in that there was no evidence to support the alternative submission that he had "disposed of" any of the property. We conclude that the court below erred in instructing the jury in the disjunctive -- i.e., that Mr. Davison should be found guilty if it found that he either "retained or disposed of" the stolen property -- in that the evidence was insufficient to support a jury conclusion that Mr. Davison had "disposed of" any property, and that this error resulted in prejudice to Mr. Davison. We therefore reverse and remand for a new trial on this basis. Because, however, Mr. Davison's other contentions may arise again on remand, we address them as well.
Mr. Davison argues in Point II that the trial court violated his right to be free from double jeopardy when it sentenced him for multiple counts of receiving stolen property, because the State's evidence proved no more than a single act of "retaining" stolen property. We agree, holding that although the State's evidence was sufficient to prove that the seven pieces of property retained by Mr. Davison on a single occasion were stolen from different owners at different times, it was not sufficient under Section 570.080 to show that he received the property at different times or to show seven separate acts of retention.
Mr. Davison claims in Point III that the trial court erred in overruling his motion for judgment of acquittal at the close of the evidence as to Counts 2A, 5, 6 and 7, because the evidence was insufficient to support his conviction on those counts. We agree with Mr. Davison that the evidence was insufficient to support his conviction on Count 2A, because the State adduced no evidence from which a juror could reasonably have concluded that the toolbox that was the subject of Count 2A was the toolbox that was, in fact, recovered from the storage unit rented by Mr. Davison. As to Counts 5, 6 and 7, however, we disagree that the "doctrine of destructive contradictions" renders insufficient the evidence underlying Mr. Davison's convictions on those counts.
Mr. Davison claims that the trial court erred in ruling that he had no standing to challenge the admission of evidence seized from his rented storage units and from his grandmother's home. Because, however, Mr. Davison can on remand admit an interest in the storage locker for the limited purposes of his motion to suppress, we do not reach the issue of standing here. Mr. Davison further challenges the sufficiency of the affidavit supplied by Sheriff's deputies to secure the search warrant, claiming that it did not state adequate facts to demonstrate probable cause. For the reasons discussed herein, we disagree.
Reversed and remanded.
Considered in the light most favorable to the verdict below, the evidence at Mr. Davison's trial was as follows:
On November 1, 1998, Mr. Davison paid cash for a six-month rental of unit 18 of a storage lot owned by Dale Wray, ostensibly to store a bass boat owned by him and a Mr. Dennis Schmidt. A few days later, Mr. Davison returned to the storage lot and asked Mr. Wray to change the name on the lease of unit 18 to that of Dennis Schmidt, so that Mr. Schmidt could be reimbursed in part by his bass club for the storage of his boat. Mr. Wray agreed to tear up the original contract signed by Mr. Davison and to execute a new lease. The lease was executed in the name of Dennis Schmidt, and Mr. Davison signed Mr. Schmidt's name on the contract. Mr. Wray testified at trial that he never met Dennis Schmidt. Mr. Schmidt also testified that he had never been to Nodaway County and had never asked Mr. Davison to rent a storage unit for him. Later in the month of November, Mr. Davison returned to the lot, and rented unit 16 in his own name.
On March 10, 1999, Nodaway County Sheriff's deputies contacted Mr. Wray, and inquired as to whether Mr. Davison was currently leasing any of Mr. Wray's storage facilities. Subsequently, on March 11, 1999, Mr. Wray checked the storage lot to see whether there was space available for a potential customer. While doing so, he drove past unit 18. He saw that the storage unit door was slightly ajar and that Mr. Davison was outside the unit. Mr. Wray could see a "four-wheeler" inside the unit. Mr. Davison shut the storage unit door upon noticing Mr. Wray's presence. Mr. Wray then called the Nodaway County Sheriff's Department and informed Deputy Steve Whittington that he had seen a four-wheeler in the interior of storage unit 18, and that Mr. Davison had shut the storage unit door upon noticing his presence.
The Sheriff's Department (the Department) had already been investigating the theft of many tools, parts, and tool boxes from a Kawasaki plant in nearby Maryville, Missouri. The Department's investigations of these thefts revealed that Mr. Davison worked at this plant as a forklift driver, that Mr. Davison had several prior convictions for stealing, and that Mr. Davison had rented two storage units from Wray's storage -- one in his own name and one in the name of Dennis Schmidt. The police also discovered that two "four-wheelers" had been stolen from Flenties, a nearby farm equipment dealership. Using the information obtained from Mr. Wray and facts uncovered during the police investigation, Deputy Whittington secured a warrant to search storage units 16 and 18 in Mr. Wray's storage lot. The affidavit used by Deputy Whittington to secure the warrant did not expressly name Mr. Wray, stating only that a confidential informant had seen the four-wheeler in unit 18.
On March 12, 1999, Deputy Whittington and other law-enforcement officers executed the warrant to search storage units 16 and 18, and they questioned and arrested Mr. Davison. He admitted that he had rented storage unit 16 but disavowed any interest in unit 18, which the lease showed was rented by Dennis Schmidt. Deputy Randy Houston accompanied Mr. Davison to his grandmother's home at 618 S. Mulberry Street in Maryville to retrieve a key to the padlock on storage unit 16. The deputies had to use bolt-cutters to cut the padlock on storage unit 18.
According to the deputies, when they searched unit 18, they found two Kawasaki "all terrain vehicles" (ATV's or four-wheelers), a Polaris ATV, a Craftsman roll-away tool chest with tools, a John Deere riding lawnmower, and assorted tools and parts from the Kawasaki plant. Photographs taken at the time of the search, depicting storage unit 18 and its contents as they appeared later on the day that Deputy Whittington gained entry, show a single ATV in unit 18. Other photographs taken at the time depict other allegedly stolen items, including another ATV, the tool boxes and the lawn mowers, sitting on a flat-bed truck outside the storage locker. In unit 16, the deputies found and seized an open package of padlocks. The deputies then obtained a warrant to search the residence at 618 S. Mulberry Street for keys matching the padlocks in storage unit 16.
Mr. Davison was charged as a prior and persistent offender with three counts of stealing in violation of Section 570.030 RSMo Cum. Supp. 1998, and, in the alternative, with seven counts of receiving stolen property in violation of Section 570.080 RSMo 19942. Before trial, Mr. Davison moved to suppress the evidence seized from the storage units. The State argued that Mr. Davison had no standing to challenge the search with...
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