State v. Jennings, WD

• Decision Date: 25 January 1983
• Docket Number: No. WD,WD
• Citation: 649 S.W.2d 448
• Parties: STATE of Missouri, Respondent, v. Paul Wayne JENNINGS, Appellant. 32944.
• Court: Missouri Court of Appeals

Page 448

649 S.W.2d 448

STATE of Missouri, Respondent, v. Paul Wayne JENNINGS, Appellant.

No. WD 32944.

Missouri Court of Appeals,

Western District.

Jan. 25, 1983.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

March 29, 1983.

Charles W. Gardner (argued), Lee's Summit, for appellant.

Kelly Klopenstein, Asst. Atty. Gen. (argued), Kansas City, John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for respondent.

Before NUGENT, P.J., and TURNAGE and LOWENSTEIN, JJ.

NUGENT, Presiding Judge.

Paul Wayne Jennings (defendant) appeals from a jury verdict finding him guilty of burglary in the second degree in violation of § 569.170 ¹, and stealing in violation of § 570.030. Defendant, sentenced to six years for each count running concurrently raises nineteen points on appeal primarily challenging the sufficiency of the evidence. We affirm.

On January 23, 1979, Mr. and Mrs. Kenneth Bell left their home in Mayview in Lafayette County for Kansas City. At 5:00 a.m. on January 26 they were informed that their house had burned down and returned immediately to find it totally destroyed and still smouldering. Two items--a chimney of a hurricane lamp and a small metal box--normally kept inside the house were found outside and unharmed, suggesting to Mr. Bell that "robbery" was involved. He contacted the police.

That same morning, police found a car in a ditch in Johnson County full of various items, including a color television, speakers, stereo, statuary, a mantle clock, and a Wollensak tape recorder. The car belonged to Ms. Pearl Haynes, defendant's girlfriend. Defendant admitted that he had driven the car into the ditch early on the morning of January 26. Mr. Bell identified the items as things "taken from our home." Defendant was charged with both stealing and burglary. Following a motion to suppress, the only item defendant was charged with stealing was the Wollensak tape recorder.

At trial, Ms. Haynes testified that she and the defendant had returned to their home in Mayview at 11:30 p.m. on January 25. The defendant left the house, saying he was going to feed the hogs, but instead drove off in Ms. Haynes' car. The car was empty at that time. She did not see him again for several days.

Mr. Bell testified that he purchased his Wollensak tape recorder for $175 in 1974 and that similar ones now cost $400. He described numerous occasions on which the defendant had been in his house, asking for odd jobs or money. Mr. Bell had given him both.

Defendant's only witness, Mr. Jim Sample, buyer and seller of used appliances, attempted to value the used Wollensak by saying that he had bought others for $75 or $80. He did not give the price at which he sold them. When he was asked by defense counsel "do you feel there is any way that this tape recorder would be worth as much as $150?" the state objected to the question as argumentative and the court sustained the objection. Defense counsel asked no more questions. Mr. Sample testified on cross-examination that new Wollensaks sell from $160 to $320.

To best consider defendant's nineteen overlapping points, we have grouped them into four areas: (1) challenges to the sufficiency of the evidence; (2) challenges relating to the jury and instructions; (3) challenges to the admission of evidence; and (4) challenges relating to certain alleged defects in the information and court procedures.

1. Sufficiency of the evidence

Eleven of defendant's nineteen points challenge the sufficiency of the evidence, alleging that the state failed to prove the corpus delicti for either count, that the elements of both counts were not proven, that the evidence was entirely circumstantial, that the verdict was contrary to law and based on passion and prejudice, and that the verdict was unsupported by the evidence.

In considering the sufficiency of the evidence in a criminal case, we are required to construe the evidence most strongly in favor of the prosecution, considering all favorable inferences that can be legitimately drawn. Inferences and evidence to the contrary are to be disregarded. City of Kansas City v. Oxley, 579 S.W.2d 113, 115 (Mo.1979) (en banc). While we will not weigh the evidence if the verdict was supported by substantial evidence, we must scrutinize the record to assure that the evidence was indeed substantial. State v. Gregory, 339 Mo. 133, 96 S.W.2d 47 (1936).

Defendant's first point in this area is that the state failed to prove the corpus delicti. The state's burden is to prove that a crime was committed, State v. Black, 611 S.W.2d 236 (Mo.App.1980), a burden that may be met by using circumstantial evidence. Holtkamp v. State, 588 S.W.2d 183, 188 (Mo.App.1979).

Certainly the evidence here is circumstantial but based on the legitimate inferences that can be drawn from it, we have no difficulty finding that the state has shown that a crime was committed. Property once inside a home was found outside that home in the possession of someone other than the owner, without the permission of the owner. No great leap of imagination is required to infer that someone removed the property in a criminal act. The state need not show that the defendant was connected to the crime to establish the corpus delicti. State v. Wood, 596 S.W.2d 394, 402 (Mo.) (en banc), cert. denied, 449 U.S. 876, 101 S.Ct. 221, 66 L.Ed.2d 98 (1980). Here, then, corpus delicti was adequately established. Moreover, this point was not raised in defendant's motion for a new trial and hence, is not properly preserved for appellate review. ²

Defendant next argues that the state failed to prove all the elements of either count. Section 569.170 provides in pertinent part that a person commits burglary in the second degree when he knowingly enters unlawfully a building or inhabitable structure for the purpose of committing a crime therein. Defendant claims that none of the elements was proven. Without question, no direct evidence was presented to show that defendant actually unlawfully entered the Bells' home with the intent of removing the items. Nevertheless, "an inference of guilt is permissible from the unexplained exclusive possession of property recently stolen in a burglary and this possession and inference are sufficient proof to submit both a burglary and stealing charge to the jury." State v. Battles, 607 S.W.2d 723, 726 (Mo.App.1980). Unlike State v. Watson, 350 S.W.2d 763 (Mo.1961), in which the court held that the "mere presence" of a passenger in a car containing stolen property was insufficient to establish exclusive possession, the defendant here was the only party known to have driven the car that night. ³ Because he acknowledged driving into the ditch at about 1:00 a.m. on January 26, the only hypothesis consistent both with this admission and with possession by others is that someone else saw the car, filled it with the items and left it for the car owner to find. The mere existence of some possible hypothesis does not justify removing the case from the jury, State v. Franco, 544 S.W.2d 533, 534-35 (Mo.1976) (en banc), cert. denied, 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977), unless the hypothesis of innocence is reasonable. State v. Odum, 351 S.W.2d 10, 14 (Mo.1961). The hypothesis consistent with defendant's innocence here is not reasonable. Accordingly, the inference from the evidence that Mr. Jennings entered the Bells' house unlawfully with the intent to commit a crime is permissible.

Similarly, Mr. Jennings' complaint that the state has not shown that a building was entered is without merit. Although by 5:00 a.m. on January 26, the building was gone, a house clearly existed on January 23 when the Bells left, leaving the items inside. The unburned condition of the items permits an inference that at the time they were removed, the house was not destroyed by fire, leading to the reasonable conclusion that they were taken from a building, as required by statute. We find that the elements of § 569.170 were adequately established to justify submission to the jury.

In his challenge to the elements of stealing, Mr. Jennings contends that the state failed to prove that the stealing occurred in Lafayette County as alleged in the information. Although proof of the venue of the acts is necessary to prosecute on the information, State v. Hawkins, 361 S.W.2d 775, 778 (Mo.1962), proof may be made by circumstantial evidence, State v. Vincent, 582 S.W.2d 723, 724 (Mo.App.1979). Because the evidence shows that the tape recorder was located in Mayview, Lafayette County, immediately prior to its removal from Mr. Bell's possession, the inference that it was taken in Lafayette County is more than reasonable.

In light of our conclusions above, we must find no merit as well in defendant's additional contentions that failure to prove the burglary charge necessitates acquittal on the stealing charge, that the inferences do not adequately establish a chain of circumstantial evidence, that the verdict was contrary to law and the result of passion and prejudice, and that the verdict was unsupported by the evidence.

2. The jury and the instructions

Defendant argues that he was deprived of his Seventh Amendment right to a jury representing an accurate cross-section of Saline County because only four of the thirty-five members of the jury panel were not residents of Marshall, Missouri. He claims that jurors from an environment more rural than Marshall would have better understood the "likelihood of such a crime in a small community" and would have been less biased by a fire.

A prima facie violation of the fair-cross-section requirement ⁴ requires "the defendant [to] show (1) that the group ... excluded is a 'distinctive' group in the community; (2) that the representation of this group in venires ... is not fair and reasonable ...; and (3) that this underrepresentation is due to systematic exclusion ... in the jury-selection process." Duren v. Missouri, ...