State v. Ford

• Decision Date: 29 May 2012
• Docket Number: No. WD 74099.,WD 74099.
• Citation: 367 S.W.3d 163
• Parties: STATE of Missouri, Respondent, v. Randall S. FORD, Appellant.
• Court: Missouri Court of Appeals

367 S.W.3d 163

STATE of Missouri, Respondent,

v.Randall S. FORD, Appellant.

No. WD 74099.

Missouri Court of Appeals, Western District.

May 29, 2012.

Ruth B. Sanders, Kansas City, MO, for appellant.

Shaun J. Mackelprang and Jennifer A. Wideman, Jefferson City, MO, for respondent.

Before Division Three: THOMAS H. NEWTON, Presiding Judge, JAMES M. SMART, JR., Judge and GARY D. WITT, Judge.

GARY D. WITT, Judge.

Randall S. Ford appeals his convictions in the Circuit Court of Jackson County for burglary in the second degree, section 569.170,¹ and possession of burglar's tools, section 569.180. We affirm.

Factual Background

Randall Ford (“Ford”) was arrested in the basement of Stein and McClure Funeral Home (“Funeral Home”) early in the morning of June 16, 2010. The State alleged that Ford was responsible for the burglary of the Funeral Home and a Jiffy Lube business next door. The State charged Ford with five separate offenses as follows: two counts of burglary in the second degree, one as to each location, section 569.170, two counts of stealing, one from each location, section 570.030, and one count of possession of burglar's tools, section 569.180. Following a jury trial, the jury convicted Ford of Count III, burglary of the Funeral Home, and Count V, possession of burglar's tools. The jury acquitted Ford with respect to the remaining three counts, one count of stealing from each location and the burglary of the Jiffy Lube. Ford was sentenced to four years imprisonment and now appeals. The facts elicited at trial in a light most favorable to the verdict are set forth below.

On the morning of June 16, 2010, the burglar alarms at both Funeral Home and Jiffy Lube were tripped. The alarm at the Jiffy Lube was tripped at 2:00 a.m. and again at 3:45 a.m. The alarm at the Funeral Home was tripped at 3:00 a.m. and again at 6:00 a.m. The police drove by the Funeral Home around 3:00 a.m. in response to a call from the manager, Jerry Post (“Post”) who had received notice of the tripped alarm. The police did not see anything suspicious at that time. Post received notice of the second tripped alarm while he was en route to work that morning. Post arrived at the Funeral Home and noticed that the fuse box was open. He did not hear the alarm sound activating but he “heard noises like somebody might be dropping things or milling about.” Post noticed things were strewn about the floor in the office and electronic equipment was on the floor. He then called police who arrived five to six minutes later.

Four officers were dispatched to the Funeral Home around 7:20 a.m. It was observed that a basement window was broken, so a perimeter was created around the business until other officers arrived to search the building. Officer Dave Edwards of the Kansas City Police Department K–9 Unit arrived shortly thereafter to search the Funeral Home. After announcing his and the dog's presence and receiving no response, officers and the dog searched the Funeral Home. They went to the basement and searched the furnace room; they observed the broken window but nothing else appeared out of order. The officers continued to search the remaining levels of the Funeral Home. They observed that some of the offices looked like they had been “ransacked,” things were moved around, and wires were cut. File cabinets were tipped over, trash cans were dumped out and computer equipment had been moved and stacked up. There was also a cart near the equipment that could be used to transport it outside.

The officer K–9 unit returned to the basement after checking the rest of the Funeral Home. They returned to the furnace room when the dog indicated by barking at the furnace room door. The officers and dog entered the furnace room and the dog located and bit Ford who was hiding between the wall and the furnace. Between the first time the officers had been in the furnace room and when they returned, the door to the furnace had been removed and there was computer equipment and a black backpack lying next to the furnace. Ford was found wearing only shorts; he had no shoes or shirt. Ford told officers that his name was “Bradley Hillebrenner.”

The black backpack found near Ford contained pliers, a laptop computer, checkbooks belonging to the Funeral Home and a Kansas driver's license with the name “Bradley Hillebrenner.” Photographs were taken at the crime scene including, Exhibits 40 and 41, which showed the contents of the backpack including; a cash box with money and keys in it, two screwdrivers, the Kansas driver's license and some electronics associated with the Funeral Home's phone or intercom system.

At trial, Ford testified that he did not enter the Funeral Home to steal anything; rather, he testified that had been forced to leave the house of a girl in great haste, when her boyfriend arrived to find him there with her. He did not have a regular place to live at this time. He saw the window to the basement of the Funeral Home was open. He was tired and he was worried about being seen by police walking around in only a pair of shorts, so he decided it would be a better idea to crawl into the Funeral Home basement and sleep for a couple of hours. He claimed he woke up when the police dog bit him and he never told police his name was “Bradley Hillebrenner.”

The jury convicted Ford of Count III, burglary in the second degree regarding the Funeral Home, and Count V, possession of burglar's tools. The jury acquitted him of the burglary regarding the Jiffy Lube and both counts of stealing one from the Jiffy Lube and one from the Funeral Home. The court imposed concurrent sentences of four years imprisonment for each count for which he was convicted.

Standard of Review

Both points on appeal challenge the sufficiency of the evidence to support Ford's conviction.

“This Court's review of a claim of insufficient evidence is limited to determining whether the evidence is sufficient to persuade any reasonable juror as to the element of a crime beyond a reasonable doubt.” State v. Rousan, 961 S.W.2d 831, 841 (Mo. banc 1998). In making this determination, we “accept [ ] as true all of the evidence favorable to the state, including all favorable inferences drawn from the evidence[,] and disregard[ ] all evidence and inferences to the contrary.” State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993) (quoting State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989)).

State v. McCabe, 345 S.W.3d 311, 314 (Mo.App. W.D.2011).

Analysis

In Point One, Ford argues the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence as to Count III, burglary in the second degree regarding the Funeral Home, because the State's evidence was insufficient to support a finding of guilt beyond a reasonable doubt for burglary in the second degree in that a reasonable jury, having acquitted Ford of stealing from the Funeral Home, could not have also found beyond a reasonable doubt that he entered the Funeral Home for the purpose of stealing.²

A person commits the crime of burglary in the second degree when “he knowingly enters unlawfully [...] in a building or inhabitable structure for the purpose of committing a crime therein.” Section 569.170. The State must prove every element of a criminal offense beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361–64, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). On appeal, Ford concedes there was sufficient evidence to find that he knowingly entered the Funeral Home unlawfully, as he admitted as much at trial. Ford argues, however, that there was not sufficient evidence that he entered the Funeral Home “for the purpose of committing a crime therein.” Specifically, the State charged Ford with entering the Funeral Home “for the purpose of committing theft therein.” Ford argues that the jury's verdict convicting him of entering the Funeral Home with the purpose of stealing from the Funeral Home in Count III was inconsistent with its acquittal on Count IV for stealing from the Funeral Home.

“This court's focus in determining whether two verdicts are inconsistent is to ascertain ‘whether the offense of which the defendant was found not guilty requires proof of an element unique to that crime and distinct from the elements of the offense of which defendant was found guilty.’ ” State v. Haslar, 887 S.W.2d 610, 614 (Mo.App. W.D.1994) (quoting State v. Dominique, 619 S.W.2d 782, 785 (Mo.App.1981)). “If the offense for which the defendant was acquitted requires proof of a unique element, distinct from the elements of the crime for which he was found guilty, the verdicts cannot be inconsistent.” Flemons, 144 S.W.3d 877, 882 (Mo.App. W.D.2004) (citing State v. Avila, 866 S.W.2d 500, 501 (Mo.App. E.D.1993)).

Ford was acquitted of stealing and convicted of second degree burglary. “A person commits the crime of stealing if he or she appropriates property or services of another with the purpose to deprive him or her thereof, either without his or her consent or by means of deceit or coercion.” Section 570.030. Burglary requires a showing that the person knowingly entered unlawfully in a building or inhabitable structure with the purpose of committing a crime therein. Section 569.170. Accordingly, a cursory evaluation of the respective crimes reveals that “... second-degree burglary and stealing involve different elements and that neither of these crimes is dependent on the other.” State v. Gibbs, 306 S.W.3d 178, 181 (Mo.App. E.D.2010) (quoting Haslar, 887 S.W.2d at 614). As stated above, since the crime of stealing involves a distinct element from second degree burglary, then the “verdicts cannot be inconsistent.” Flemons, 144 S.W.3d at 882 (emphasis added).

Ford recognizes that the verdicts are not necessarily inconsistent but then argues that in this case the verdicts must be inconsistent because “the jury must have believed that Mr. Ford was not involved in moving the equipment around, because there was no other basis to acquit...