State v. Hardy, 52093

Decision Date14 July 1987
Docket NumberNo. 52093,52093
Citation735 S.W.2d 153
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Joe HARDY, Defendant-Appellant.
CourtMissouri Court of Appeals

Mary E. Dockery, Asst. Public Defender, Clayton, for defendant-appellant.

William L. Webster, Atty. Gen., Jatha B. Sadowski, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

PUDLOWSKI, Presiding Judge.

Defendant, Joseph Hardy, appeals a conviction for attempt to commit burglary in the second degree in violation of Sections 564.011 and 569.170, RSMo 1986, obtained in the Circuit Court of the City of St. Louis. Defendant was sentenced as a prior and persistent offender to ten (10) years imprisonment.

Defendant raises two points on appeal. First, that there was insufficient evidence to sustain a conviction for attempted burglary in the second degree. Second, that the trial court erred in sustaining the prosecutor's motion in limine and prohibiting appellant from cross-examining Mr. Terry Carlis, about the fact that he had signed an affidavit of non-prosecution and had nonetheless been coerced into testifying for the prosecution. We affirm.

In testing the sufficiency of the evidence in a criminal case, facts and appropriate inferences intelligently drawn therefrom must be assessed in the light most favorable to the state, disregarding all adverse inferences and evidence. State v. Moseley, 705 S.W.2d 613 (Mo.App.1986). On appeal, our review is limited to whether there is sufficient evidence from which reasonable persons could have found defendant guilty. Id.

The evidence reveals that at approximately 3:54 a.m. on October 14, 1985, Officer John Thomas, of the St. Louis City Police Department, was driving along Dr. Martin Luther King Drive en route to a White Castle restaurant to take his dinner break. As he approached 5010 Dr. Martin Luther King Drive, Officer Thomas observed three persons in an entrance to the building. The three were later identified as defendant, James Kelger and Andrew Steed. Officer Thomas observed the trio attempting to open the front door of the building. As Officer Thomas approached the suspects, he saw defendant drop something to the ground and push it beneath the door with his left foot. When Officer Thomas arrived at the entrance, he observed: (1) a tire iron sticking out from underneath the door; (2) a broken point of a screwdriver lying on the ground; (3) a partially bent hasp on the door; and (4) some wood and paint chips on the ground beneath the hasp on the door. When Officer Thomas inquired as to what they were doing in the doorway, defendant indicated he was attempting to get out of the rain. Officer Thomas testified that it had stopped raining approximately thirty minutes earlier. At trial, Paul John Smith, a criminalist for the St. Louis City Police Department, testified as to tests he had conducted and from those tests it was his opinion that paint chips from the tire iron were similar in nature to paint chips from the door frame around the hasp.

The elements of an attempt, including burglary in the second degree, are: (1) the intent to commit the crime; (2) an overt act towards its commission; (3) failure of consummation; and (4) the apparent possibility of commission. State v. Miller, 692 S.W.2d 339 (Mo.App.1985). Defendant contends that the only evidence established is circumstantial evidence and insufficient to establish direct proof of the overt act of prying on the door. This contention is without merit.

All of the elements of the crime of attempted burglary in the second degree may be proven by circumstantial evidence. Id. The reasonable and logical inferences to be drawn from the evidence presented...

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9 cases
  • State v. Withrow
    • United States
    • Missouri Supreme Court
    • 7 Diciembre 1999
    ...is also a class C misdemeanor. Sec. 564.011.3. 3. These cases include State v. Miller, 692 S.W.2d 339 (Mo. App. 1985); State v. Hardy, 735 S.W.2d 153 (Mo. App. 1987); State v. Blaney, 801 S.W.2d 447 (Mo. App. 1990); State v. Mulder, 916 S.W.2d 346 (Mo. App. 1996); State v. Motley, 976 S.W.2......
  • State v. Reyes
    • United States
    • Missouri Court of Appeals
    • 10 Septiembre 1993
    ...(2) an overt act toward its commission; (3) failure of consummation; and (4) the apparent possibility of commission." State v. Hardy, 735 S.W.2d 153 (Mo.App.1987) is cited. The State also argues that it was not necessary that the State show the amount of marijuana seized was more than 5 gra......
  • State v. Blaney, s. 56128
    • United States
    • Missouri Court of Appeals
    • 4 Diciembre 1990
    ...its commission; 3) failure of defendant to consummate the crime; and 4) the apparent possibility of its commission. State v. Hardy, 735 S.W.2d 153, 154 (Mo.App.1987); State v. Olds, 603 S.W.2d 501, 508 (Mo. banc 1980). In reviewing the sufficiency of the evidence to make a submissible case,......
  • State v. Burns
    • United States
    • Missouri Court of Appeals
    • 24 Julio 1990
    ...fact in issue or if it corroborates other material evidence. State v. Cotton, 724 S.W.2d 649, 652 (Mo.App.1986); see also, State v. Hardy, 735 S.W.2d 153 (Mo.App.1987); State v. Paynes, 697 S.W.2d 200 (Mo.App.1985). Questions respecting the relevance and admissibility of evidence are within......
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