State v. Galvan

• Decision Date: 23 October 1990
• Docket Number: Nos. 55616,57745,s. 55616
• Citation: 798 S.W.2d 185
• Parties: STATE of Missouri, Respondent, v. Louis Dale GALVAN, Appellant. Louis Dale GALVAN, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 185

798 S.W.2d 185

STATE of Missouri, Respondent, v. Louis Dale GALVAN, Appellant.

Louis Dale GALVAN, Appellant, v. STATE of Missouri, Respondent.

Nos. 55616, 57745.

Missouri Court of Appeals,

Eastern District,

Division Five.

Oct. 23, 1990.

William L. Webster, Atty. Gen., Robert P. Sass, Asst. Atty. Gen., Jefferson City, for respondent.

Susan Lynn Hogan, Columbia, for appellant.

SIMON, Judge.

Defendant-appellant, Louis Dale Galvan, appeals from his convictions after a jury trial of four counts of second degree burglary, Section 569.170, RSMo 1986, four counts of stealing, Section 570.030, RSMo 1986, and one count of second degree arson, Section 569.050, RSMo 1986. He was sentenced as a prior offender to a term of five years imprisonment on each burglary count, with the stealing sentences to run concurrently and the arson sentence to run consecutively with the burglary sentences, for a total of twenty-five years. Defendant thereafter filed a Rule 29.15 motion for post-conviction relief, and also appeals its dismissal without an evidentiary hearing.

Defendant raises four points on appeal. He first contends that the trial court erred in overruling his motions for judgment of acquittal at the close of the state's case and at the close of all the evidence, and in sentencing him under Counts VIII, stealing, and Count IX, arson, because the state's evidence on these counts was insufficient to sustain the jury's finding of guilt beyond a reasonable doubt, in that the state's evidence failed to prove: (1) that a felony theft occurred because there was insufficient proof that a gun was stolen from the Landreth trailer, and (2) that the Hitchcock store fire resulted from the criminal agency of defendant. Second, defendant asserts trial court erred in overruling his objection to Deputy Frank Armstrong's testimony concerning what Gary Dickerson had told him, because such testimony constituted inadmissible hearsay, in that it did not fall into any of the recognized exceptions to the hearsay rule and prejudiced defendant by its admission because the jury was allowed to consider the statement as substantive evidence, and the statement improperly bolstered the testimony of Gary Dickerson and Larry Umfleet. Third, defendant asserts error in submitting Instruction No. 4 to the jury, patterned after MAI-CR3d 302.04, because the instruction violated defendant's rights in that the instruction defined proof beyond a reasonable doubt as proof that leaves jurors "firmly convinced," thereby diminishing the meaning of proof beyond a reasonable doubt. Finally, defendant contends the motion court clearly erred in denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing because defendant pleaded factual allegations not refuted by the record in that trial counsel: (1) failed to interview his alibi witnesses within a reasonable time, (2) failed to secure a document showing that the burglary and arson of the Hitchcock store was an "inside job," and (3) failed to adduce evidence of prosecutorial vindictiveness, which prejudiced defendant because he was denied the use of evidence which would have supported his defense of alibi, and was denied a fair trial when the prosecutor used perjured evidence against defendant. We affirm.

The offenses for which defendant was tried occurred on December 5, 7, and 28, 1986, and January 13, 1987. Since defendant contests the sufficiency of the evidence on two of the nine counts, we consider the facts and all favorable inferences from those facts in the light most favorable to the state and reject all contrary evidence and inferences. State v. Spiller, 778 S.W.2d 825, 826 (Mo.App.1989). The evidence adduced at trial revealed the following.

On the evening of December 5, 1986, defendant and Gary Dickerson (Dickerson) went to the Michael Clubb residence in Flat River, Missouri, which was within a mile and a half of defendant's residence in Esther, Missouri. Dickerson testified that on arrival defendant pried open the back door with a screwdriver, pushed it in, and entered the Clubb's residence. Once inside, defendant and Dickerson stole some jewelry, a gun, a pair of binoculars, and a camera. Neither Clubb nor his wife were at home at the time. They exited the Clubb residence and returned to defendant's residence with the stolen items.

On December 7, 1986, defendant and Dickerson went to the Mason residence in Flat River, Missouri. Upon arrival, defendant broke a basement window and he and Dickerson crawled inside. Once inside, they took a rifle, a shotgun, money, and jewelry. These items were taken from the Mason residence in a pillowcase and taken to defendant's residence and hidden on the property. The Masons were not home at the time of the burglary.

On December 28, 1986, defendant, Dickerson, and Dickerson's sister went to a trailer owned by the Landreth family in Farmington, Missouri. Dickerson's sister had been told the Landreths were away for the holidays. Defendant and Dickerson ran behind the trailer, forced the door open and went inside. They took guns, a stereo, money, and food. The food was carried out in a bag which broke, scattering food across the backyard.

The final incident occurred on January 13, 1987 at the Hitchcock Discount Store in Esther, Missouri. Dickerson testified that he, his sister, and defendant followed railroad tracks that ran near defendant's residence and passed behind the Hitchcock store. Mary Lang, a neighbor who lived in front of defendant's residence, testified that she saw defendant, Dickerson and Dickerson's sister on the evening of January 13, 1987 walking toward the railroad tracks. Lang testified that as they walked past, defendant said to her, "Turn on your scanner; we're going to have action in town."

Upon their arrival at the Hitchcock store, Dickerson testified that defendant produced a pair of tin snips and cut a hole in the back of the building. Defendant entered the building and started throwing out pants and other merchandise, while Dickerson and his sister were outside gathering it up and bagging it. Defendant stated that "he ought to burn it," and shortly thereafter Dickerson testified he saw smoke coming from the building.

Defendant's first point on appeal asserts the trial court erred in overruling his motion for judgment of acquittal and in sentencing him under Counts VIII and IX due to insufficient evidence. In reviewing this point, we do not weigh the evidence, but only determine whether there is evidence adequate from which reasonable persons could find guilt. State v. Rousan, 752 S.W.2d 388, 390 (Mo.App.1988).

Defendant asserts the evidence was insufficient to sustain a conviction on Count VIII, stealing, because there was insufficient proof that he took a gun from the Landreth residence. We disagree. The sole evidence that defendant stole a gun from the Landreths was Gary Dickerson's testimony. It is well settled that "[a] conviction may stand on the uncorroborated testimony of an accomplice unless such testimony is so lacking in probative force as not to amount to substantial evidence." State v. Clark, 701 S.W.2d 546, 548-49 (Mo.App.1985). Defendant has not alleged that Dickerson's testimony was lacking in probative force, but rather that his credibility was questionable. Issues of credibility are to be resolved by the jury, State v. Murphy, 753 S.W.2d 90, 92 (Mo.App.1988), who may believe all, part, or none of the evidence presented. State v. Corley, 628 S.W.2d 380, 382 (Mo.App.1982).

Defendant also contends the evidence adduced by the state was insufficient to support his conviction on Count IX, arson. The elements of arson second degree are that a building was on fire, the fire was of an incendiary origin, and the defendant knowingly participated in the commission of the crime. State v. Sobel, 672 S.W.2d 377, 378 (Mo.App.1984); Section 569.050 RSMo 1986. All of the elements of arson may be proven by circumstantial evidence. State v. Smith, 770 S.W.2d 469, 473 (Mo.App.1989); State v. Walsh, 624 S.W.2d 526, 528[1, 2] (Mo.App.1981). "The circumstances need not be absolutely conclusive of guilt and need not demonstrate the impossibility of innocence." State v. Cook, 697 S.W.2d 272, 274[1, 2] (Mo.App.1985).

Gary Dickerson testified that, upon arriving at the Hitchcock Discount Store, defendant produced tin snips and cut a hole in the back of the building. He then entered the store through the hole and tossed merchandise out, which was collected and bagged by Gary Dickerson and his sister. They took the bags filled with merchandise down to railroad tracks which ran behind the store, and hid them. Dickerson testified defendant then said he (defendant) "ought to burn it." Dickerson began walking down the tracks away from the store, and when he got halfway down the tracks he saw smoke coming from the building. Deputy Charles Geissing, an expert on arson investigation, testified the fire at Hitchcock's Discount Store was incendiary in origin.

Defendant does not contend that the store did not burn or that the fire was not incendiary; rather, he asserts the evidence was insufficient to show he played a part in setting the fire. He places particular emphasis on the fact Deputy Geissing could not rule out the possibility that the fire could have started before the time defendant was placed at the scene. Defendant contends this evidence does not rule out his reasonable hypothesis that the fire started earlier in the evening, smoldering for several hours before erupting into flames.

The mere existence of another possible theory, however, is not enough to remove the case from the jury. State v. Rodden, 728 S.W.2d 212, 213 (Mo. banc 1987). The evidence in this case showed the fire was incendiary in origin. That fact, along with the lack of testimony concerning smoke, fumes, heat, or flames while defendant and Dickerson were at the store, defendant's statement to Dickerson that he "ought to burn it," and...