State v. Harris
| Citation | 539 S.W.2d 617 |
| Decision Date | 15 June 1976 |
| Docket Number | No. 37078,37078 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Michael E. HARRIS, Defendant-Appellant. . Louis District, Division Three |
| Court | Court of Appeal of Missouri (US) |
Robert C. Babione, Public Defender, James C. Jones, Asst. Public Defender, St. Louis, for defendant-appellant.
John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Ronald B. Safren, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
Michael E. Harris was convicted by a jury of the crime of burglary in the second degree, § 560.070 RSMo. 1969, and the trial court having found, after an evidentiary hearing, that he had previously been convicted of a felony, sentenced him to a term of eight years in the custody of the Missouri Department of Corrections. §§ 560.095(2) and 556.280 RSMo. 1969. He appeals.
By his first point presented to this court he attacks the sufficiency of the evidence to overcome his motion for judgment of acquittal at the close of all of the evidence to sustain a finding that he 'broke into the building as required for proof of burglary.' In deciding this point after a verdict of guilty by a jury, the reviewing court accepts as true all evidence contained in the record tending to prove the defendant's guilt, whether such evidence is direct or circumstantial in nature, together with all favorable inferences that can be reasonably drawn therefrom and disregards all contrary evidence and inferences. State v. Reed, 453 S.W.2d 946, 949(5) (Mo.1970).
The evidence viewed in light of the foregoing principles, shows that Mr. Harris was taken into custody sometime shortly after 1:00 a.m. on September 15, 1974, in the interior of an A & P grocery store located at 2718 South Grand Boulevard in the rear storage area of the store, hiding behind a grocery cart, by Patrolman Al Berberich of the St. Louis Police Department who was in the process of investigating a report of a burglary of the store. At the time the police officers arrived on the scene Officer Berberich observed that the building's scissor-type security door had been pried open and the lock was lying on the ground near the entrance to the store. The jamb of the metal-encased glass exit door was pried open but the bolt was still locked. After the police officers entered the interior of the grocery store they observed one man in the center aisle run towards the rear of the building and near one of the check-out counters they found three plastic bags filled with cigarette cartons. Officer Berberich proceeded to the rear of the building and located two men there hiding behind some boxes. His further search of the premises led to the discovery of the appellant as stated heretofore. All three men taken into custody inside the building were wearing gloves at the time.
Officer Daniel Day, a member of the Evidence Technician Unit of the St. Louis Police Department took into his possession on the scene a tire iron, a chisel and three locks. The tire iron was taken from the front of the store and the chisel from the rear of the store in the trash area. One of the locks, a padlock, was found lying on the floor next to the screened-in liquor department and another in the produce storage area. The third lock was located on the ground behind the front entrance security door. These locks were received in evidence at trial without objection.
Defendant testified in his own defense. He admitted his presence in the store and that at the time he entered he was armed with a tire tool. He also admitted that he had put the cigarettes in the trash bags with the intention of stealing them. He explained that he and his two friends were riding by the store when they observed three or four 'guys' at the A & P front door; two of them inside the store and one on the outside; that they returned to the store to scare off these other men by slamming on the brakes of their car, slamming the doors and kicking on the back doors of the store. After they did this, they put on gloves to go into the store and to keep their fingerprints off of things in the store. When they arrived at the entrance to the store a metal grating across the entrance was not open and they had to push it open to get inside. He also testified that at the time of trial he was twenty-two years of age and in 1971 had been convicted in the court of St. Louis of the offense of 'Burglary and Stealing' and was sentenced to two years for that offense. He also admitted that in 1973 he was incarcerated in the City of St. Louis and escaped from that incarceration. He pleaded guilty to a charge of escape on that occasion.
It is apparent from appellant's argument that the element of burglary which he contends was not established is 'breaking.' The evidence here authorized a finding that someone had entered the locked and closed A & P store without permission. Appellant himself testified that to gain entrance to the store it was necessary for them to push aside a metal grating across the entrance which was not open. The force to constitute a breaking in burglary second degree need not be more than the mere pushing open of a door which is shut. State v. Rhodes, 408 S.W.2d 68, 70(3) (Mo.1966), State v. Cox, 527 S.W.2d 448, 452(5) (Mo.App.1975). The mere raising of a kitchen window has been held sufficient breaking to support a conviction of burglary in the second degree. State v. O'Brien, 249 S.W.2d 433, 434(1--4) (Mo.1952). It has been held that entering a building by pushing aside boards barricading a window was 'breaking and entering' within the meaning of the second degree burglary statute. State v. Smith, 357 S.W.2d 120, 122(3) (Mo.1962). We conclude that the appellant himself supplied any lack of direct evidence the State may have lacked in its prosecution by his testimony that to gain entrance into the store it was necessary for him and his cronies to push aside the metal grating across the entrance to the building.
However, we also conclude that in the absence of direct evidence of 'breaking' there is sufficient circumstantial evidence to meet the rigorous tests imposed by law to sustain a conviction on circumstantial evidence alone. From the evidence the jury could find that a burglary occurred; that it was still in progress when the police officers arrived on the scene and that the officers interrupted the burglary thereby preventing the stealing of the trash bags of cigarettes appellant admittedly...
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...18, 294 N.E.2d 632. Missouri, which presently bars conviction for an attempt when the attempt is successful, See State v. Harris, Mo.App.1976, 539 S.W.2d 617 note 2, will, likewise, have that result changed when Mo.R.Stat. § 564.011 becomes effective Jan. 1, ...
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