State v. Hyde, 47854
| Decision Date | 30 October 1984 |
| Docket Number | No. 47854,47854 |
| Citation | 682 S.W.2d 103 |
| Parties | STATE of Missouri, Respondent, v. Mary HYDE, Appellant. ELVIA |
| Court | Missouri Court of Appeals |
Henry W. Cummings, St. Charles, for appellant.
John Ashcroft, Atty. Gen., John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant appeals a court-tried conviction and sentence of ninety days in a medium security facility, based on a stipulation of facts filed with the trial court on August 26, 1983. We affirm.
The facts as stipulated indicate that defendant owns an apartment building at 4127 Westminster in the City of St. Louis, Missouri. On January 12, 1983, two detectives proceeded to the rear of that address to investigate the unauthorized use of Union Electric Company electricity. The detectives knew that the electric company had previously disconnected the electricity because of defendant's failure to pay the electric bill. The detectives observed a wire connecting an adjacent property and defendant's property. The detectives knocked on defendant's door and she answered. Defendant was advised of her Miranda rights, which she said she understood.
One of the detectives explained to defendant that they had observed the improper electrical connection and defendant replied, There was no direct evidence that defendant made or assisted in making the unlawful connection or connections. However, the electricity had been turned off for a long time.
The detectives saw an electric light shining, "burning" on the inside of the front first-floor apartment, whereupon the defendant was asked if any other lights were burning in any part of the building. There defendant responded, Defendant conducted the detectives to the third floor, where a television was playing and a stereo was connected to an electrical outlet. In addition, a No. 12 gauge housewire was connected to an outlet by means of a "male" type plug. The outside and inside wires were removed and seized as evidence.
In addition, on January 12, 1983, an electric company inspector observed at the address in question an electric light, an electric refrigerator, a radio, a television, and a lamp, all operating with electricity. He also noticed a jumper wire to an electrical service at an adjacent address. The electric company inspector observed that the electric meter and electrical service wires to 4127 Westminster had been removed and none of the electricity going into that residence was being measured. The Union Electric Company had removed illegal electrical connections to that address at least 23 times prior to the date of the detectives' visit. Estimated cost of electrical services since June 4, 1981, the date of disconnection, has been $1,218.00.
It was further stipulated that the electric company had terminated service at the address on June 4, 1981, because of non-payment of electric bills, that the service had never been reconnected, and no one had permission to reconnect electric service.
The parties stipulated to defendant's previous convictions. Based on these facts defendant was convicted of tampering in the second degree as a prior and persistent offender.
Appellant has urged this court to transfer this cause to the Supreme Court of Missouri under Supreme Court Rule 83.06, alleging that the constitutionality of Paragraph 2 of Section 569.090 RSMo. Supp.1983, is in question. In relevant part this section provides:
1. A person commits the crime of tampering in the second degree if he:
* * *
(3) Tampers with, or causes to be tampered with, any meter or other property of an electric, gas, steam or water utility, the effect of which tampering is either:
(a) To prevent the proper measuring of electric, gas, steam or water service; or
(b) To permit the diversion of any electric, gas, steam or water service.
2. In any prosecution under subdivision (3) of subsection 1, proof that a meter or any other property of a utility has been tampered with, and the person or persons accused received the use or direct benefit of the electric, ... service, with one or more of the effects described in subdivision (3) of subsection 1, shall be sufficient to support an inference which the trial court may submit to the trier of fact, from which the trier of fact may conclude that there has been a violation of such subdivision by the person or persons who use or receive the direct benefit of the electric ... service.
* * *
Defendant objects to the words of section two which permit evidence to be considered that reception of "the use or direct benefit" of electric services shall be sufficient to support an inference of a violation of the statute prohibiting tampering with a utility meter.
Defendant has failed to preserve any constitutional argument. To properly raise a constitutional issue, a party must (1) raise the constitutional issue at the first available opportunity, (2) specifically designate the constitutional provision claimed to have been violated by express reference to the article and section of the constitution or by quoting the provision itself, (3) state the...
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