State v. Hood

• Decision Date: 31 October 1984
• Docket Number: No. 13554,13554
• Citation: 680 S.W.2d 420
• Parties: STATE of Missouri, Respondent, v. Dorothy V. HOOD, Appellant.
• Court: Missouri Court of Appeals

Page 420

680 S.W.2d 420

STATE of Missouri, Respondent, v. Dorothy V. HOOD, Appellant.

No. 13554.

Missouri Court of Appeals,

Southern District,

Division Three.

Oct. 31, 1984.

David E. Woods, Regional Public Defender, Judicial Circuits 35 and 36, Poplar Bluff, for appellant.

Mark A. Kennedy, Pros. Atty., Butler County, Poplar Bluff, for respondent.

CROW, Presiding Judge.

Dorothy V. Hood ("defendant"), charged with the class A misdemeanor of stealing property of the value of less than $150, § 570.030, RSMo 1978, as amended by Laws 1981, p. 638, was tried by the court without a jury, found guilty, and sentenced to 6 months' imprisonment. Inasmuch as one of her assignments of error is that the evidence was insufficient to sustain the conviction, a synopsis of the testimony is required.

Paul Frederick Smith, security officer at the K-Mart store in Poplar Bluff, testified that while he had the automotive section of the store under surveillance on July 20, 1983, he saw defendant place an oil filter inside her purse, then leave the store with a male companion, without paying for the filter. Smith, accompanied by another K-Mart employee, Keith Seib, followed defendant and her companion to an automobile on the parking lot.

Smith asked defendant if she had a receipt for the filter and she replied she did not. Defendant opened her purse and placed the filter on the front seat of the automobile, on the passenger side. Defendant offered to pay for the filter, but Smith told her she had to go back inside the store.

Meanwhile, defendant's companion had started the engine and was attempting to back the automobile out of its parking space. Defendant opened a rear door and jumped into the automobile. An assistant store manager, who had come to the scene, retrieved the filter from the front seat. About that time, the automobile "sped off real fast." Smith testified he was unable to prevent defendant and her companion from fleeing "without possibly getting somebody injured."

Bernice Moore, who had known defendant about 8 years, was employed at K-Mart at the time the incident occurred. Ms. Moore had finished her shift and was standing at the door about 2:30 p.m., awaiting a ride. At that time, Ms. Moore saw defendant and her companion--whom Ms. Moore identified as Clarence Reed--exit the store. According to Ms. Moore, defendant passed "within a couple of feet." Ms. Moore watched as Smith, Seib and the assistant manager confronted defendant on the parking lot, and observed defendant depart in the automobile.

Smith notified the police, furnishing them the automobile's license number, which had been copied by Seib. Smith, who did not know defendant by name, learned her identity from "some of the employees."

In her defense, defendant testified she went to Big Spring Park near Van Buren around noon, July 20, 1983. According to defendant, she was accompanied by Stacy Gipson, and they rode in defendant's automobile. Defendant explained there were other people at the park, but no one whom she or Stacy knew. Defendant added that she and Stacy spent the night at the park, sleeping in her car, and returned to Poplar Bluff about 8:00 a.m., the next day. Defendant denied stealing the filter and denied seeing Clarence Reed on July 20.

Stacy Gipson corroborated defendant's testimony about the journey to Big Spring, testifying he was certain of the date because July 20 was the birthday of his brother, Forrest. Forrest Gipson testified he had a party on July 20, 1983, his seventeenth birthday. Forrest expected Stacy to attend, but Stacy did not appear.

Interlaced with defendant's challenge of the sufficiency of the evidence is a contention that the trial court erred in allowing Ms. Moore to testify that defendant was at K-Mart on July 20. We address that contention before dealing with the sufficiency issue.

Defendant maintains there was no "foundation" for Ms. Moore's testimony, in that Ms. Moore admitted that she was not a friend of defendant, that they had no "mutual social contacts," and that she (Ms. Moore) had not talked to defendant. Defendant points out that Ms. Moore was unable to recall how defendant was dressed on July 20, and that Ms. Moore believed defendant's hair was "curled" at that time. Defendant testified that in July, 1983, her hairstyle was a "straight perm."

From the foregoing, defendant argues that Ms. Moore's identification of her at trial was not based upon Ms. Moore's observations at the time of the alleged crime, but instead upon Ms. Moore's "prior contact" with defendant. Therefore, says defendant, it was error to permit Ms. Moore to identify her in court.

We disagree. Ms. Moore testified she knew defendant "fairly well," having seen her "around town." Ms. Moore added that she could identify the automobile defendant drives, and that the vehicle defendant entered on the K-Mart parking lot was not defendant's, but one that Ms. Moore had seen Clarence Reed "driving around." Moreover, as noted earlier, Ms. Moore testified that she had known defendant about 8 years, that defendant had walked within 2 feet of her upon leaving the store, and that she (Ms. Moore) had observed defendant during the confrontation on the parking lot which, according to Smith, lasted "five to seven minutes."

State v. Littleton, 649 S.W.2d 225, 227 (Mo. banc 1983), holds that the reliability of an in-court identification is assessed under the "totality of the circumstances." Factors to be considered in determining whether identification testimony is sufficiently reliable that admittance at trial will not violate a defendant's right to due process include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the degree of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Id. at 227.

Here, Ms. Moore, who knew defendant long before the incident at K-Mart, had ample opportunity to view defendant at the time of that incident. Ms. Moore, upon observing Smith following defendant and Clarence Reed, gave the matter her attention and watched what transpired on the parking lot. Ms. Moore was positive in her courtroom identification of defendant, and the length of time between the crime (July 20, 1983) and the in-court identification (October 7, 1983) was less than 3 months. Defendant's contention that the trial court erred in allowing Ms. Moore to identify defendant as the person whom Ms. Moore saw with Clarence Reed at K-Mart on July 20, 1983, is patently without merit.

We turn now to defendant's challenge of the sufficiency of the evidence to support the conviction. Defendant bases this point solely on the assertion that Ms. Moore's courtroom identification of her resulted from prior contacts, not from Ms. Moore's observations on July 20.

The first weakness in defendant's thesis is that Ms. Moore's testimony is flatly to the contrary. More importantly, however, the credibility of Ms. Moore and the weight to be given to her testimony were within the province of the trial court, as the trier of fact. State v. Giffin, 640 S.W.2d 128, 131 (Mo.1982). It was for the trial court to decide whether Ms. Moore was correct in identifying defendant as the person Ms. Moore saw at K-Mart about 2:30 p.m., July 20, 1983.

Unlike the trial court, we do not weigh the evidence; we determine only whether there was sufficient proof from which the trial court could reasonably have found defendant guilty. State v. Turner, 623 S.W.2d 4, 6 (Mo. banc 1981), cert. denied, 456 U.S. 931, 102 S.Ct. 1982, 72 L.Ed.2d 448 (1982). In making that determination, we accept as true all evidence tending to prove defendant's guilt, together with inferences favorable to the State that can reasonably be drawn therefrom, and we disregard all contrary evidence and inferences. Giffin, 640 S.W.2d at 130; State v. Brown, 665 S.W.2d 945, 948 (Mo.App.1984). Viewed in that light, the testimony of Smith, by itself, was sufficient to support the conviction. Smith, an eyewitness to the theft, unequivocally identified defendant as the culprit. Consequently, defendant's point would fail even had Ms. Moore not testified at all. State v. Robertson, 667 S.W.2d 18, 20 (Mo.App.1984); State v. Bailey, 651 S.W.2d 599, 601 (Mo.App.1983).

The testimony of defendant and Stacy Gipson that defendant was at Big Spring at the time of the theft does not impair the sufficiency of the evidence to support the conviction. The trial court was not required to believe that testimony. The trial court had leave to believe the testimony of Smith and Ms. Moore, and to disbelieve the testimony of defendant and Stacy Gipson. State v. Gamble, 649 S.W.2d 573, 577 (Mo.App.1983). We reject defendant's attack on the sufficiency of the evidence.

Defendant also assigns as error the failure of the prosecuting attorney to make an...