State v. Gibson, s. 57091

• Decision Date: 05 February 1991
• Docket Number: 58192,Nos. 57091,s. 57091
• Parties: STATE of Missouri, Respondent, v. Kevin GIBSON, Appellant.
• Court: Missouri Court of Appeals

Page 521

812 S.W.2d 521

STATE of Missouri, Respondent, v. Kevin GIBSON, Appellant.

Nos. 57091, 58192.

Missouri Court of Appeals,

Eastern District,

Division Three.

Feb. 5, 1991.

Judith LaRose, Columbia, for appellant.

William L. Webster, Atty. Gen., David J. Hansen, Asst. Atty. Gen., Jefferson City, for respondent.

STEPHAN, Judge.

Kevin Gibson appeals from his convictions, after a jury trial, on one count of second degree burglary, Section 569.170, RSMo 1986, and one count of stealing over $150.00, Section 570.030, RSMo 1986. Additionally, Gibson appeals the dismissal without an evidentiary hearing of his Rule 29.15 motion for post-conviction relief. We have consolidated Gibson's two appeals, pursuant to Rule 29.15(l). We affirm.

The evidence adduced at trial in the light most favorable to the verdict is as follows. Marjorie and Henry Olfe owned and operated a business, Sunset Aquatech Pools. Sometime between approximately 7:30 p.m. on June 28, 1988, and 8:00 a.m. on June 29, 1988, the money in the cash register, totaling $160.94, and a small, beige, steel cash box, containing approximately $240.00 and some new penny holders, were taken from the store.

Around 3:20 a.m., June 29, 1988, James Schomake woke up to the sound of someone running outside his bedroom window. Schomake looked out the window, and saw someone standing by a tree, approximately 20 feet away, urinating on the ground. Initially, Schomake observed the man trying to hide behind the tree from a passing car. Schomake then observed the man join another person. Schomake watched as they both tried to gain access to a neighbor's vehicle. Schomake phoned the police and told them what he had observed. Schomake later observed the two men peering through the neighbor's basement window. Schomake again phoned the police.

Officer Terry Hinds, a police officer with the City of Sunset Hills, responded to Schomake's phone calls at approximately 3:27 a.m. on June 29, 1988. Hinds parked his car near Sunset Aquatech Pools. He saw two individuals standing behind a tree. Hinds identified Gibson as one of the two men standing behind the tree.

Hinds observed something in Gibson's hand. Due to poor lighting conditions, Hinds was unable to determine what Gibson was holding. Fearing that Gibson may have been holding a firearm, Hinds spotted his flashlight on the men, and identified himself as a police officer. Both men turned toward Hinds, which allowed Hinds to "easily identify them". The men subsequently turned and ran. Hinds ordered Gibson to halt or he would shoot. At that time, Gibson dropped a small, beige, steel cash box which contained some rolled coins. Hinds identified State's Exhibit No. 2 as the box the Sunset Hills police seized from Gibson. Gibson had two dollars and some change on his person when he was arrested. Additionally, there was approximately $45.64 in the cash box that the police seized.

James Schomake watched as the police apprehended Gibson and his accomplice. Schomake identified Gibson as the person who was urinating on his lawn.

Both James and Marjorie Olfe subsequently identified the State's Exhibit No. 2 as the cash box missing from their store. Marjorie Olfe also testified that the penny holders that were found inside Exhibit No. 2 were the penny holders that were in the cash box the night that it was taken from the their store. Neither James nor Marjorie Olfe gave anyone permission to take the cash box or the cash from their cash register between June 28 and June 29, 1988.

The trial court overruled Gibson's motion for acquittal at the close of the State's evidence. Thereafter, Gibson presented two witnesses in his defense. One witness, Police Officer Ronald Oldani testified that he saw no signs of forced entry at Sunset Aquatech Pools. Nevertheless, the court overruled Gibson's motion for acquittal at the close of all evidence. At that time, the State requested a motion in limine to preclude Gibson from referring to Kevin Fryman in his closing argument. The court sustained the motion. The jury subsequently convicted Gibson of one count of second degree burglary, Section 567.170, RSMo 1986, and one count of stealing over $150.00, Section 570.030, RSMo 1986.

Two days later, on May 25, 1989, Gibson entered a plea of guilty to an unrelated charge of second degree burglary. Additionally, he pled guilty to an unrelated charge of stealing under $150.00.

On July 21, 1989, the trial court sentenced Gibson, as a prior offender, to seven years imprisonment on each count, the sentences to run concurrently. The trial court ordered both sentences to run consecutively to Gibson's probation revocation. Additionally, the trial court sentenced Gibson to: (1) seven years for the unrelated charge of second degree burglary; and (2) six months for the unrelated charge of stealing under $150.00. The trial court ordered Gibson to serve both of these sentences concurrently with the two seven year sentences imposed in the case at bar, and consecutively with Gibson's probation revocation. The court also entered a $46.00 judgment against Gibson, pursuant to the Victims Compensation Act. The court explained that the $46.00 would be taken from funds that he earned at the Missouri Department of Corrections.

Gibson filed his notice of appeal regarding the charges in this case on July 31, 1989. Gibson filed his transcript on appeal on October 30, 1989. Additionally, Gibson filed a pro se motion for post-conviction relief pursuant to Rule 29.15, alleging ineffective assistance of counsel. The motion court denied Gibson's motion, without an evidentiary hearing, as untimely in that it was filed more than thirty days after the transcript was filed. Rule 29.15(b). Gibson filed his notice of appeal on April 12, 1990. We have consolidated Gibson's two appeals, pursuant to Rule 29.15(l ).

Gibson's first point on appeal is that the trial court erred in: (1) overruling his motion for a judgment of acquittal at the close of all the evidence; and (2) accepting the jury's verdict of second degree burglary and stealing. Gibson argues that the evidence was insufficient to prove beyond a reasonable doubt that: (1) Gibson unlawfully entered Sunset Aquatech Pools with the purpose of stealing; or (2) that Gibson took U.S. currency and a metal cash box of a value of at least $150.00. As a basis for these arguments, Gibson contends that there was no evidence that: (1) he or anyone else forcibly or unlawfully entered Sunset Aquatech Pools; or (2) he had a key to Sunset Aquatech Pools. Gibson further contends that the State failed to prove that the cash box entered into evidence unequivocally belonged to Henry and Marjorie Olfe.

When reviewing the sufficiency of the evidence to support a criminal conviction, we: (1) view the evidence in the light most favorable to the State; (2) give the State the benefit of all reasonable inferences to be drawn from the evidence; and (3) disregard any contrary evidence and inferences. State v. Spiller, 778 S.W.2d 825, 826 (Mo.App.1989). Since the verdict in this case rests on circumstantial evidence, the facts and circumstances upon which the State relies must be consistent with each other, and with the State's hypothesis of Gibson's guilt. State v. Rodden, 728 S.W.2d 212, 213 (Mo. banc 1987). The evidence must be inconsistent with any reasonable theory of appellant's innocence. Id. The circumstances need not, however, be absolutely conclusive of guilt, nor must they demonstrate the impossibility of innocence. Id. The mere existence of other possible hypotheses is not sufficient to remove the case from the jury. Id.

To establish a case against Gibson for second degree burglary, the State had to prove that Gibson knowingly entered unlawfully, or knowingly remained unlawfully, in a building for the purpose of committing a crime therein. Section 569.170, RSMo 1986. To establish a case against Gibson for stealing over $150.00, the State had to prove that Gibson appropriated another's property with the purpose of depriving the person of their property without their consent. Section 570.030, RSMo 1986.

Viewing the evidence in the light most favorable to the State, the State proved that between approximately 7:30 p.m. on June 28, 1988, and 8:00 a.m. on June 29, 1988, the money in Sunset Aquatech Pools' cash register, totaling $160.94, and a small, beige, steel cash box, containing approximately $240.00 and some new penny holders, were taken from the store. Moreover, the State proved that neither James nor Marjorie Olfe gave anyone permission to take the cash box or the cash from their cash register. Gibson argues that this evidence is insufficient because the State did not present evidence that Gibson entered the Olfe's building. Gibson's argument is without merit.

It is a well established rule in Missouri that an inference of guilt is permissible from the unexplained possession of property recently stolen in a burglary. State v. Chunn, 701 S.W.2d 578, 583 (Mo.App.1985). The inference exists as to both the burglary and the stealing. Id. Moreover, such evidence is sufficient to support a submission of both the burglary and the stealing to the jury. Id.

The evidence established that Gibson was in unexplained possession of Marjorie and Henry Olfe's property--a cash box containing some rolled coins. From that proof, it is permissible to infer Gibson's guilt. State v. Chunn, supra, 701 S.W.2d at 583. This inference exists as to both the burglary and the stealing. Id. Furthermore, such evidence supports a submission of both the burglary and the stealing to the jury. Id.

Gibson, however, argues that he only had two dollars and some change on his person when he was arrested. He additionally argues that there was only $45.64 in the cash box the police seized. Gibson therefore contends that there was insufficient evidence to establish that he was in possession of $150.00. Gibson's contention is without merit....