State v. Fletcher
| Decision Date | 28 March 1980 |
| Docket Number | No. 11348,11348 |
| Citation | 598 S.W.2d 523 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Billy Gene FLETCHER, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
John D. Ashcroft, Atty. Gen., Steven W. Garrett, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Daniel T. Ramsdell, Springfield, who was appointed as counsel for appellant when prior counsel was discharged after appellant's brief was filed, for defendant-appellant.
Defendant was convicted of burglary in the second degree. § 560.040, RSMo 1969. He was sentenced to five years imprisonment.
Defendant advances five points for our review. Point one contends that the trial court should have granted defendant a new trial because "the verdict of the jury was against the weight of the evidence"; and "was internally inconsistent in finding the defendant guilty of burglary but not of stealing, . . . ." Points two, three and four claim instructional error and point five claims that the State failed to prove that the offense was committed in Missouri.
Defendant was charged with participating in a burglary in Stone County, Missouri. On September 16, 1978, at approximately 3:15 p. m., a station wagon was seen going to and then stopped at a residence near Kimberling City, Missouri. The occupants of the residence had left that morning. The station wagon was gone when the occupants arrived home at approximately 3:45 p. m. While they were gone the house was broken into and several things taken. Shortly thereafter, Stone County, Missouri deputies arrested defendant and two other occupants in the station wagon. Defendant was a passenger in the vehicle. In the vehicle were numerous items taken from the residence. Defendant admits being in the vehicle during the time of the break-in but contends that he did not participate and was so intoxicated that he did not know it occurred. Another occupant testified that defendant was so drunk he could not comprehend what was going on and did not assist in the burglary. The deputies stated that defendant had been drinking but was not intoxicated at the time of his arrest. He was able to talk and to communicate with them. One said defendant was "not staggering drunk".
Defendant contends under point one that the only evidence against him was circumstantial, consisting of his presence with others in the automobile containing stolen goods. He claims that this evidence is equally consistent with his theory of intoxication and non-participation as it is with him being guilty. Defendant asks us to find that the verdict was against the weight of the evidence. That is not our function. We determine if there is substantial evidence to support a verdict not weigh the evidence. State v. Buffington, 588 S.W.2d 512, 514 (Mo.App.1979). In testing whether the evidence is sufficient, it and all reasonable inferences must be considered in the light most favorable to the State and all evidence and inferences to the contrary disregarded. Id. While circumstances must be such as are inconsistent with defendant's innocence, it is not necessary that they be absolutely conclusive of his guilt, and the evidence need not demonstrate an absolute impossibility of innocence. State v. Cullen, 591 S.W.2d 49, 51 (Mo.App.1979). The jury apparently did not believe defendant and his companion regarding the state of defendant's intoxication. The evidence from the Stone County officers was that defendant was not drunk and did understand what was going on when they arrested him shortly after the break-in.
The circumstances in the present case are similar to those in State v. Cobb, 444 S.W.2d 408 (Mo. banc 1969). There the defendant was a passenger in an automobile found near the scene of a burglary. The automobile contained property taken from the premises broken into. Defendant claimed the items were taken without his knowledge while he was asleep. The court held that an inference of guilt is permissible from the possession of property recently stolen in a burglary. It was for the jury to determine the credibility of the defendant's explanation and the jury was entitled to disbelieve it and draw an inference unfavorable to defendant based on the possession. Id. 444 S.W.2d at 414. Here defendant's condition and participation were for the jury to determine. We hold that the evidence was sufficient for the jury to find defendant guilty beyond a reasonable doubt.
Defendant also contends that the jury verdict was inconsistent as he was found guilty of burglary but not guilty of stealing. That does not afford him any grounds for relief. When a defendant is charged with committing two criminal offenses that involve different elements,...
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...as to cause "manifest injustice" or a "miscarriage of justice." State v. Murphy, 592 S.W.2d 727, 733 (Mo. banc 1980); State v. Fletcher, 598 S.W.2d 523, 525 (Mo.App.1980); and State v. Tilley, 569 S.W.2d 346, 349 (Mo.App.1978). According to the argument tendered by defendant, both aspects o......
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State v. Hines, WD
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...or failed to instruct the jury as to cause "manifest injustice". State v. Murphy, 592 S.W.2d 727, 733 (Mo. banc 1979); State v. Fletcher, 598 S.W.2d 523, 525 (Mo.App.1980). The determination of whether plain error exists must be based on a consideration of the facts and circumstances of eac......