State v. Hinsa

• Decision Date: 21 September 1998
• Docket Number: No. 22027,22027
• Citation: 976 S.W.2d 69
• Parties: STATE of Missouri, Respondent, v. Michael J. HINSA, Appellant.
• Court: Missouri Court of Appeals

Page 69

976 S.W.2d 69

STATE of Missouri, Respondent, v. Michael J. HINSA, Appellant.

No. 22027.

Missouri Court of Appeals,

Southern District,

Division One.

Sept. 21, 1998.

Nancy L. Vincent, Dist. Defender, St. Louis, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Meghan J. Stephens, Asst. Atty. Gen., Jefferson City, for Respondent.

CROW, Judge.

A jury found Appellant guilty of burglary in the second degree. § 569.170. ¹ The trial court sentenced Appellant--a prior offender, § 558.016.2--to seven years' imprisonment. This appeal followed.

The first of Appellant's two points relied on avers the trial court erred in refusing to give the jury an instruction tendered by Appellant hypothesizing the offense of trespass in the first degree. § 569.140. Appellant's second point maintains the trial court committed plain error by permitting the prosecutor "to misdefine the law in closing argument."

Appellant presented no evidence and does not challenge the sufficiency of the State's evidence to support the verdict. This opinion sets forth only the evidence pertinent to Appellant's claims of error.

On May 9, 1996, Bruce Williams resided at Route 1, Broseley. ² A house owned by Eugene Colon was "next door" to Williams's residence.

About 3:19 a.m. that date, Williams heard his dog barking. Williams looked out a window and saw "flashlights and lights flickering in ... the [Colon] house." Williams knew Colon had been gone "[p]robably two months" and "there wasn't anybody home." Williams called the "police department."

Butler County deputy sheriffs Bobby Wicker and Timothy Knobles ³ were on patrol in a "marked" vehicle in the "eastern end" of the county. They were dispatched to the Colon house. Upon approaching it, they saw a yellow car backing out of the driveway. Wicker, driving the patrol vehicle, turned on the "overhead lights" and "blocked the road so [the yellow] vehicle could not leave."

Wicker and Knobles exited their vehicle and saw two people in the yellow car: Appellant and his wife. The officers ordered Appellant and his wife out, arrested them, and handcuffed them.

About that time, another Butler County deputy sheriff, Jerry Armes, ⁴ arrived.

Armes and Knobles saw several items of wooden furniture in the back of the yellow car.

Armes entered the Colon house and "did a walk-through" to ensure no one was inside. Asked to describe the interior of the house, Armes replied, "I observed several dresser drawers, chest of drawers pulled out, items on the floor." According to Armes, "Several things looked like it had been ransacked."

Knobles searched Appellant, finding "several items" in his "bluejean pockets." Knobles explained, "I bagged them there and took them back to the office and we sorted them out there."

Armes took Appellant and his wife to the sheriff's office. There, Armes read Appellant the "Miranda warning." ⁵ Appellant wrote and signed a statement. Asked by the prosecutor to read the statement aloud, Armes responded:

"On 5-9-96 I stopped at a [sic] unlived [sic] in house. I got out to use the bathroom and found that the door was unlocked and grabbed a few tables that was on the back porch, like if someone had already placed them there and put them in ... the car. She didn't like the idea but I said that they was ... had been worried about it because it was opened. Started the car and backed out when a police car blocked the road and said get out of the car. I also looked through a few dressers and cabinets while I was in there."

Armes and Knobles showed Appellant the items taken from him by Knobles during the search incidental to arrest. Appellant "pointed out" items he had taken from the Colon house. Knobles described those items as: "a pair of wire cutters, a pair of scissors, toothbrush, ashtrays, one red candle, two brass snuff boxes, one brass lighter and a key ring containing two keys."

The yellow car and its contents were impounded.

Colon was in Kansas when the incident occurred. Upon being notified, he returned to his house and discovered some items were missing, including a brass lamp, a cigarette stand and a brass ashtray. Colon went to the Butler County sheriff's office and identified the missing items.

At trial, Colon recounted that although he was gone when the incident occurred, he "maintain[ed] utilities" and "[e]verything was locked."

Appellant tendered an instruction patterned on MAI-CR 3d 323.56, hypothesizing trespass in the first degree. The trial court marked it Instruction A and refused it. Instruction A is set forth below. ⁶

Section 556.046 reads, in pertinent part:

"1. A defendant may be convicted of an offense included in an offense charged in the indictment or information. An offense is so included when

(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or

....

2. The court shall not be obligated to charge the jury with respect to an included offense unless there is a basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense."

The parties agree that trespass in the first degree committed by entering a building is an included offense in burglary in the second degree. State v. Vineyard, 839 S.W.2d 686, 689 (Mo.App. E.D.1992); State v. Green, 812 S.W.2d 779, 787 (Mo.App. W.D.1991); State v. Neighbors, 613 S.W.2d 143, 146-47 (Mo.App. W.D.1980).

A trial court is required to submit a lesser included offense instruction if the evidence arguably shows a lack of an essential element of the greater offense, while affording a basis for conviction of the lesser. ⁷ State v. Garner, 800 S.W.2d 785, 788 (Mo.App. E.D.1990); State v. Dorsey, 724 S.W.2d 610, 611 (Mo.App. E.D.1986).

Appellant insists there was a basis for acquitting him of burglary in the second degree and convicting him of trespass in the first degree in that the jurors could reasonably have found he "entered the Colon property unlawfully, but not with the purpose of committing stealing." Appellant bases that premise on the statement he gave Armes, recited earlier in this opinion. Appellant's brief declares:

"[Appellant's] statement to the police, entered into evidence by the state, supports the conclusion that [he] did not enter unlawfully with the purpose to commit a crime. In his statement [Appellant] said he and his wife were driving around and stopped at an unoccupied house. He got out to use the bathroom and found the door unlocked. The fact [Appellant] entered through an unlocked door, and there was no evidence of forced entry, supports the inference of lack of intent to commit a crime."

Citing State v. Mizanskey, 901 S.W.2d 95, 99 (Mo.App. W.D.1995), Appellant asserts a trial court, in deciding whether to instruct on a lesser included offense, should "resolve all doubts regarding the evidence in favor of instructing on the lower offense." Furthermore, says Appellant, an appellate court, in deciding whether an accused is entitled to a particular instruction, is required by State v. Howard, 949 S.W.2d 177, 180 (Mo.App. E.D.1997), to view the evidence in a light most favorable to the accused.

Appellant cites two cases where burglary convictions were reversed because the trial court failed to instruct on trespass in the first degree. One is State v. Moore, 729 S.W.2d 239 (Mo.App. E.D.1987). There, the occupant of a house was in a bedroom when the accused appeared at the bedroom door. Id. After staring at the occupant, the accused fled. Id. The appellate court noted: (a) there was no forcible entry, (b) nothing in the house was disturbed, (c) there was evidence that the accused's car had become disabled near the house, and (d) the accused knocked on the front door before entering. Id. at 240. The appellate court concluded it was possible to infer that the accused entered the house to call for help or advise someone of his delay. Id. Given that possibility, the appellate court held the trial court erred in refusing the accused's requested instruction on trespass in the first degree. Id. at 241.

The other case cited by Appellant is State v. Childress, 901 S.W.2d 321 (Mo.App. E.D.1995). There, the accused and his companion, both homeless men, planned to "hop" a train on a mid-February evening but were unsuccessful. Id. After attempting to warm themselves in a "porta potty," they began walking and eventually espied a house near the tracks. Id. at 321-22. They entered, found and ate moldy bread and cookies, rigged a fuse box for electricity, took heaters, blankets and clothes to a bedroom, and slept overnight. Id. at 322. The next morning, the owner arrived at the house, discovered them, and had them arrested. Id. The appellate court held the accused's unlawful entry into the house was sufficient to support a conviction for burglary and to supply the element of intent to steal. Id. However, the court further held there was evidence upon which the jury could have acquitted the accused of burglary but convicted him of trespass in the first degree. Id. The court explained: "The question is one of [the accused's] intent and we cannot conclude the evidence here established the requisite intent [to steal] as a matter of law." Id. at 323. Therefore, failure to instruct on trespass in the first degree required reversal. Id.

While Moore and Childress suggest Appellant's first claim of error may be meritorious, other cases with dissimilar facts indicate otherwise.

In State v. Eidson, 701 S.W.2d 549 (Mo.App. E.D.1985), the accused was convicted of burglary in the second degree. On appeal, he complained the trial court erred in rejecting his tendered instruction hypothesizing trespass in the first degree. Id. at 550. The evidence showed the accused broke into an unoccupied commercial building at night using a crowbar. Id. at 550-52. He was apprehended by police while leaving the building. Id. at 551. Inside the building, police found a walkie-talkie, gloves and a small...