State v. Feeler, 11707

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: PREWITT; MAUS; TITUS; BILLINGS, J., concurs in dissent of TITUS; HOGAN, J., dissents, joining in dissent of TITUS; TITUS; HOGAN; BILLINGS; HOGAN; PER CURIAM; MAUS; BILLINGS; BILLINGS; A defendant's possession of recently stolen property, explained or
• Citation: 634 S.W.2d 484
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Eddie S. FEELER, Defendant-Appellant.
• Docket Number: No. 11707,11707
• Decision Date: 18 May 1981

Page 484

634 S.W.2d 484 STATE of Missouri, Plaintiff-Respondent,
v.
Eddie S. FEELER, Defendant-Appellant. No. 11707. Missouri Court of Appeals, Southern District, En Banc. May 18, 1981.
Order On Rehearing June 15, 1981.
Transferred by Supreme Court June 15, 1981.
Retransferred July 6, 1982 as Improvidently Transferred.

Page 485

John D. Ashcroft, Atty. Gen., Henry T. Herschel, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Jerry W. Venters, Bartlett & Venters, P. C., Jefferson City, for defendant-appellant.

PREWITT, Judge.

A jury found defendant guilty of stealing two calves and set his punishment at confinement for one year. Defendant was charged as a "persistent offender" under § 558.016, RSMo 1978, and following a "sentencing hearing", § 558.021, RSMo 1978, the trial judge sentenced him to seven years imprisonment.

Page 486

Defendant's three points contend: (1) that the evidence was insufficient to sustain the conviction; (2) that the trial court erred in denying his motion for a bill of particulars; and (3) that the trial court erred in admitting into evidence at the sentencing hearing certain exhibits "not duly and properly certified and authenticated"; and the judge erred in sentencing defendant as a persistent offender without making "the findings required by Section 558.021 prior to sentencing".

We initially consider defendant's first point. Defendant did not contend at trial, nor does he here, that the calves were not stolen. Their owner testified that on February 21, 1979, he had twenty calves on his farm located in the northeastern part of Phelps County, Missouri, and on the morning of February 22, 1979, had only sixteen. On February 28, 1979, defendant delivered four calves to be sold at a livestock auction company a mile north of Montgomery City, Missouri. The calves were sold and defendant received payment for them that day. The four calves were later identified as being those missing from the Phelps County farm. There was no other evidence connecting defendant with the theft.

The defendant did not testify. His only witness was his wife. She said that on February 21, 1979, she and defendant were at their home in Vichy, Missouri, all that day and evening. They remained there until the morning of February 22, when they went to her uncle's home in DeSoto, Missouri. They stayed there until they returned home that evening. On February 28, 1979, Lewis Merhoff, her stepfather, and defendant left in defendant's truck to go to the Salem sale barn "to sell some items". They returned about 4:00 or 5:00 p. m. that day.

Defendant's counsel brought out in cross-examination during the state's case that before this trial Lewis Merhoff admitted in court that he stole the calves. How defendant came into possession of the calves was never explained.

Numerous Missouri cases state that "unexplained possession of recently stolen property is a sufficient circumstance to sustain a conviction of stealing the property". State v. Chase, 444 S.W.2d 398, 402-403 (Mo.banc 1969). See also State v. Arnold, 566 S.W.2d 185, 188 (Mo.banc 1978); State v. Lewis, 482 S.W.2d 436, 437 (Mo.1972); State v. Myers, 551 S.W.2d 312, 313 (Mo.App.1977). Unexplained possession of stolen property ten days after its theft is not too remote in time to support a conviction. State v. Morse, 514 S.W.2d 375, 376 (Mo.App.1974). We think the evidence was sufficient to sustain the conviction. Defendant was shown to be in the exclusive possession of the calves six or seven days after their taking and also to have sold them, not at a sale barn close to where he lived but at one approximately 77 highway miles from there and at least 65 miles from where the calves were pastured. Point one is denied.

Defendant's second point contends that the court erred in denying his motion for a bill of particulars because the information insufficiently described the property stolen and the date of such stealing and thus prevented defendant from properly preparing his defense. The body of the motion consisted of one paragraph which stated:

"Comes now defendant pursuant to Supreme Court Rule 24.03 and moves the Court to direct the filing of a Bill of Particulars for the ground and reason that the information fails to inform the defendant of the particulars of the offense charged sufficiently to prepare his defense."

A motion for a bill of particulars is addressed to the discretion of the trial court and its ruling should not be disturbed unless there is an abuse of discretion. State v. Cox, 352 S.W.2d 665, 672 (Mo.1961). Defendant here contends that as four calves were taken he should have received a better description of the two calves he was charged with stealing and that the date of stealing was insufficient. The information alleged that "two calves" were taken "on or about February 22, 1979". It is obvious from the evidence that the state had no

Page 487

further information as to the time of the theft to give defendant as the state's witnesses, including the owner of the calves, did not know the exact time the calves were taken. While a better description of the calves might have been available, the defendant does not show how not receiving it prejudiced his defense and as the motion did not set forth how the information was insufficient or what additional facts were sought, we cannot say that the court abused its discretion in denying the motion. Point two is denied.

Appellant's final point contends in part that the trial court erred in admitting into evidence four exhibits because they were not "duly and properly certified and authenticated". Three of the exhibits are copies of court records, each of which purports to show a separate "Judgment and Sentence" of defendant for committing a prior felony. The remaining exhibit was certified as a part of the records pertaining to defendant in the Classification and Assignment Unit of the Division of Corrections. The conviction records were from circuit courts of this state and were each attested by the circuit clerk and imprinted with the seal of the court. Those exhibits appear to adequately comply with § 490.130, RSMo 1978, and defendant does not explain in his brief why he contends there was not compliance with that section. The court records were properly admitted. State v. Gardner, 600 S.W.2d 614, 620 (Mo.App.1980). The exhibit purporting to be from the records of the Department of Corrections was not objected to before the trial court on the basis now contended and thus there is nothing for us to review pertaining to the admissibility of that document. A point raised on appeal must be based upon the theory of the objection made to the trial court. State v. Lang, 515 S.W.2d 507, 511 (Mo.1974).

Point three also contends that the trial judge failed to make specific findings, as required by §...