State v. Grayson, 45229

• Decision Date: 06 March 1984
• Docket Number: No. 45229,45229
• Citation: 668 S.W.2d 153
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Nelson GRAYSON, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 153

668 S.W.2d 153

STATE of Missouri, Plaintiff-Respondent, v. Nelson GRAYSON, Defendant-Appellant.

No. 45229.

Missouri Court of Appeals,

Eastern District,

Division One.

March 6, 1984.

Motion For Rehearing and/or Transfer to

Supreme Court Denied

April 4, 1984.

Application to Transfer Denied

May 15, 1984.

Raymond A. Bruntrager, St. Louis, for defendant-appellant.

John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

SNYDER, Judge.

Nelson Grayson was found guilty by a jury of burglary in the second degree. § 569.170 RSMo.1978. He appeals from his conviction and the judgment sentencing him to a term of five years in the Missouri Department of Corrections. The judgment is affirmed.

Appellant briefs three points relied. He says the trial court erred in: (1) failing to grant appellant's motions for judgment of acquittal filed at the close of the state's case and after all the evidence because the state failed to make a submissible case; (2) failing to grant a mistrial during final argument because the prosecuting attorney made numerous personal attacks on appellant; and (3) admitting into evidence state's Exhibits 5 and 24 because these exhibits constitute proof of other crimes.

The first issue raised by appellant is whether the state made a submissible case. In testing the sufficiency of the evidence to support a criminal conviction, only evidence and reasonable inferences which are favorable to the state will be considered and all evidence and inferences to the contrary will be disregarded. State v. Bextermueller, 643 S.W.2d 292, 293 (Mo.App.1982).

The evidence adduced by the state to support its charge of second degree burglary was circumstantial. In order for a submissible case to rest upon purely circumstantial evidence, the circumstances and facts must be consistent with each other and the hypothesis of guilt, be inconsistent with the hypothesis of innocence and point so clearly to guilt so as to exclude every reasonable hypothesis of innocence; however, the circumstances and facts need not prove the impossibility of innocence. State v. Jerelds, 637 S.W.2d 80, 81 (Mo.App.1982).

At 12:29 p.m. on Sunday, October 12, 1980, police officers Klein and Rulo responded to a burglar alarm at 2115 Locust, the location of Broadway Office Interiors, which is adjacent to a warehouse of the Getz Tire Company. Although the doors to Broadway Office Interiors were secure, the padlock on a sliding door to the Getz warehouse was open. The sliding door was on the St. Charles Street side of the building which extended from Locust Street north to St. Charles which runs east and west parallel to Locust Street.

When Officers Klein and Rulo entered the building, they saw tires stacked by the door and a man, who later identified himself as Pete Johnson, walking in the building looking at the tires stored in the warehouse. When Mr. Johnson saw the police officers, he turned and ran, but the officers pursued and captured him. A key to the sliding-door padlock was found in Johnson's pocket.

The sliding doors had been locked on the Friday evening prior to the burglary. The tires which the officers saw stacked by the door had been stacked as usual on pallets in another part of the warehouse when the warehouse was locked up on Friday evening. No keys to the warehouse were missing on Monday morning from the tire company office which was in a different location from the warehouse.

The owner of the building testified that a key to the padlock could be obtained easily by taking the number of the padlock to the Accurate Key Service and asking for a replacement key. Thus, the jury could have inferred that Pete Johnson obtained his key, not from the Getz Tire Company, but through the Accurate Key Service.

The foregoing recitation of evidence reveals that the state adequately showed a burglary had been committed. Evidence of unauthorized entry into a building in which goods, merchandise, or other valuable things are kept suffices to make a submissible case of second degree burglary. State v. Cameron, 604 S.W.2d 653, 662 (Mo.App.1980); State v. Lawrence, 566 S.W.2d 243, 246-247[6-8] (Mo.App.1978). The question is whether the state adduced sufficient evidence of participation in the burglary by appellant.

Officer Klein testified that five or ten minutes before receiving the burglary report he saw appellant and Pete Johnson in a green 1969 Dodge van at the intersection of 20th and Locust Street, which is just over two blocks from the scene of the burglary. The license plates on the van, which was driven by appellant, belonged to Mr. Johnson.

Officer Klein discovered that the sliding door to the Getz Tire Company warehouse was insecure because of the manner in which the hasp and the padlock were placed. The padlock, although opened, had been placed through the staple of the hasp. The metal strap of the hasp was placed over the padlock and part of the staple, so that at first glance the door appeared to be locked and secure.

The sliding door could not be opened without first lifting the metal strap from the staple, an act which could not be done from inside the warehouse. Thus, the jury could have inferred that Pete Johnson had an accomplice who would open the door from the outside when they were ready to carry away the tires.

Officer Kolilis saw appellant driving the van the wrong way (east) on St. Charles Street just after Officer Klein had discovered the insecure door which was on St. Charles Street. Appellant then stopped the van on Twentieth Street between St. Charles and Washington where appellant was seen and identified by Officer Kolilis when appellant looked back toward the scene of the burglary. Shortly after Johnson was arrested, and after appellant was seen on Twentieth Street near St. Charles, he was apprehended while driving the green van near the intersection of 21st and Delmar, about four blocks from the Getz Tire Company's warehouse.

There was testimony that few vehicles were being driven in the vicinity of the Getz Tire Company warehouse at the time appellant was apprehended because only one business in the commercial district in which the warehouse was situated was open on Sunday afternoons.

The state's evidence shows that appellant was riding with the principal burglar, Pete Johnson, in Johnson's van, immediately before the burglary; that appellant had an opportunity to participate in the burglary because he was seen driving the van past the scene of the crime the wrong way on a one way street; that he stopped nearby on 20th Street just north of St. Charles and looked back toward the tampered-with door; that no other persons were seen who could have assisted Johnson in the burglary; and that Johnson needed a cohort to help him carry out the crime by opening the door and helping to load the tires in Johnson's van.

The circumstantial evidence was consistent with the hypothesis of guilt and the facts shown by the evidence were not inconsistent with each other. The facts were inconsistent with any reasonable hypothesis of innocence. The evidence and the reasonable inferences drawn therefrom are sufficient to make a submissible case of second degree burglary against appellant. See State v. Snyder, 502 S.W.2d 339, 341 (Mo.1973).

Appellant cites State v. Castaldi, 386 S.W.2d 392 (Mo.1965), and State v. Dudley, 617 S.W.2d 637 (Mo.App.1981) as supporting his point on the question of submissibility. It is sufficient to say that evidence in both cited cases was much weaker than the evidence in the case under review. The point is denied.

Appellant next alleges trial court...