State v. Haslar
| Citation | 887 S.W.2d 610 |
| Decision Date | 06 September 1994 |
| Docket Number | No. WD,WD |
| Parties | STATE of Missouri, Respondent, v. Robert L. HASLAR, Appellant. 48446. |
| Court | Court of Appeal of Missouri (US) |
Roy W. Brown, Kearney, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Millie Aulbur, Asst. Atty. Gen., Jefferson City, for respondent.
Before HANNA, P.J., and BRECKENRIDGE and ELLIS, JJ.
Robert L. Haslar appeals his conviction for class C felony burglary in the second degree, § 569.170, RSMo 1986 1, for which he was sentenced to seven years' imprisonment. Mr. Haslar raises three points on appeal, claiming that the trial court erred in (1) overruling his post-trial motion for judgment of acquittal, (2) refusing to instruct the jury on the lesser-included offense of trespass in the first degree, and (3) sustaining the State's motion in limine regarding the admissibility of evidence of his mental condition. The judgment is affirmed.
The facts are viewed in the light most favorable to the verdict. State v. Purlee, 839 S.W.2d 584, 587 (Mo. banc 1992). In July of 1992, Bonnie Hubbard lived next door to Nancy Lynch. On the night of July 9, 1992, Ms. Hubbard observed Mr. Haslar park his truck in front of Ms. Lynch's duplex and leave the engine running. Ms. Hubbard recognized Mr. Haslar because she had seen him at the duplex with Ms. Lynch in the past. Mr. Haslar went to the front door of Ms. Lynch's duplex and knocked, but after no one answered, he drove around to the back of the duplex. Ms. Hubbard observed him kick in the back door of Ms. Lynch's duplex and go upstairs. She was able to see him because the back light and basement lights of the duplex were illuminated and there were no curtains in the window. Ms. Hubbard then called the police. She continued to watch Mr. Haslar, though, who stayed in the house two to three minutes before he left carrying a small, square object in his hand. The police arrived after Mr. Haslar left, but Ms. Hubbard told them that it was Mr. Haslar whom she observed entering and exiting the duplex that night.
Officer David Shumacker responded to the call of a "burglary in progress" at Ms. Lynch's duplex. He had been informed prior to reaching the scene that "the party that was supposed to be breaking in had already gone," so when he arrived at approximately 10:15 p.m., the officer immediately contacted Ms. Hubbard and her husband. Officer Shumacker then went to Ms. Lynch's duplex where he found the back door standing open and the door frame broken in three to four different places. Ms. Lynch returned home twenty minutes after the police arrived. She and Officer Shumacker went through the residence together to see what was missing. The officer observed a telephone lying in the middle of the stairway. Ms. Lynch testified at trial that the back door had been kicked in, the television screen was broken, the telephone was ripped out of the wall, and the lid to the answering machine was on the floor. At the time of the break-in, Ms. Lynch told Officer Shumacker that at that time she could not be sure of what was missing, but she verified with the police officer the next day that the answering machine and her food stamps were gone. The amount of these items together was over one hundred fifty dollars, and the property was never recovered.
Ms. Lynch testified that Mr. Haslar was the father of her seven-year-old daughter. She had no contact with him from the time her daughter was nine months old until two to three months prior to the burglary when they began to date again. Shortly before this incident, Ms. Lynch had obtained an order of protection against Mr. Haslar for assaulting her and she had not seen him for three to four weeks. She had not given him permission to enter her home nor take any item from her home on July 9, 1992.
Mr. Haslar was charged with the class C felony of burglary in the second degree and the class C felony of stealing. When arraigned on August 27, 1992, Mr. Haslar entered a plea of not guilty. At arraignment, Mr. Haslar apparently made an oral request for a mental examination and the trial court sustained the request. The report from the psychiatric examination was dated January 19, 1993. At the time the report was prepared, Mr. Haslar was "under the supervision of the Department of Mental Health, having been found Not Guilty by Reason of Mental Disease or Defect in 1989." The findings of the physician conducting the examination are as follows:
1. Mr. Haslar does not have a mental disease or defect within the meaning of Chapter 552, RSMo.
2. Mr. Haslar does not lack capacity to understand the proceedings against him or to assist in his own defense.
3. At the time of the alleged offense Mr. Haslar did not suffer from any mental disease or defect which would have impaired his ability to conform his conduct to the requirements of the law or impaired his ability to know and appreciate the nature, quality, or wrongfulness of the alleged conduct.
4. Mr. Haslar does not require hospitalization.
Prior to trial, the State submitted a motion in limine requesting that Mr. Haslar's counsel be prevented from mentioning any evidence concerning Mr. Haslar's mental condition. The court sustained the State's motion in limine. The defendant's motions to dismiss submitted at the end of the State's evidence and at the close of all of the evidence were overruled at trial. The jury returned a verdict of guilty on the charge of class C felony burglary in the second degree and not guilty on the charge of class C felony stealing. The court found Mr. Haslar to be a persistent offender and sentenced him to seven years' imprisonment. Mr. Haslar timely filed a notice of appeal.
As his first point on appeal, Mr. Haslar asserts that the trial court erred in overruling his post-trial motion for judgment of acquittal because by finding Mr. Haslar guilty of burglary and not guilty of stealing, the jury failed to find the intent element of burglary. Mr. Haslar also argues that the evidence was insufficient as to the intent element to find him guilty of burglary. Mr. Haslar contends that under the State's theory of guilt the "intent to steal" element of burglary was dependent on the specific act of stealing the items listed under the stealing charge. Therefore, he claims that the jury's verdict of guilty on the burglary charge and not guilty on the stealing charge resulted in inconsistent verdicts because the jury could not rationally infer the "intent to steal." In the alternative, Mr. Haslar submits that the unique facts of this case combined with the acquittal on the stealing charge reveal an insufficiency of the evidence as to the intent element of the burglary charge.
This court's focus in determining whether two verdicts are inconsistent is to ascertain "whether the offense of which the defendant was found not guilty requires proof of an element unique to that crime and distinct from the elements of the offense of which defendant was found guilty." State v. Dominique, 619 S.W.2d 782, 785 (Mo.App.1981). Burglary in the second degree is committed when the defendant "knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein." Section 569.170. The jury instruction for burglary provided that Mr. Haslar would be found guilty of burglary in the second degree if he "knowingly entered unlawfully in an inhabitable structure located at [Ms. Lynch's address] and possessed by Nancy A. Lynch" and did so "for the purpose of committing the crime of stealing therein." See MAI-CR3D 323.54.
A person commits the crime of stealing by "appropriat[ing] property or services of another with the purpose to deprive him thereof, either without his consent or by means of deceit or coercion." Section 570.030. Stealing is a class C felony if the value of the property appropriated is equal to or greater than one hundred fifty dollars. Section 570.030.3(1). Under the jury instruction for the class C felony of stealing, in order to find Mr. Haslar guilty of stealing, the jury had to find that he "took a Phone Mate answering machine and miscellaneous food stamps owned by Nancy Lynch," that he did so "without the consent of Nancy Lynch," that he did so "for the purpose of withholding it from the owner permanently," and that "the property so taken had a combined value of at least one hundred fifty dollars." See MAI-CR3D 324.02.1.
It is self-evident that second-degree burglary and stealing involve different elements and that neither of these crimes is dependent on the other. Dominique, 619 S.W.2d at 785. Stealing requires proof of a defendant's appropriation of the property or services of another. Section 570.030. Burglary requires only proof that the defendant entered a building or inhabitable structure for the purpose of committing a crime, in this case stealing. Section 569.170. Consummation of the intended crime of stealing "is not essential to establishing that the intruder entered the building with the necessary intent to sustain the burglary charge." State v. Jones, 863 S.W.2d 353, 358 (Mo.App.1993). In that respect, stealing necessarily involves an element not required for a conviction of burglary. This court cannot, therefore, say that the jury verdicts were inconsistent, for the jury could have found that Mr. Haslar entered the duplex for the purpose of stealing but that he did not consummate the crime of stealing, he did not take the specific items listed in the stealing instruction, or that he did not take items with a value of at least one hundred fifty dollars.
Mr. Haslar also contends that the evidence was insufficient to convict him of burglary. He maintains that "because the jury rejected the evidentiary sufficiency of the stealing event by finding [h...
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