State v. Johnson
| Decision Date | 18 May 1976 |
| Docket Number | No.36908,36908 |
| Citation | 537 S.W.2d 816 |
| Parties | STATE of Missouri, Respondent, v. Rayfield Rene JOHNSON, Appellant. . Louis District, Division Two |
| Court | Missouri Court of Appeals |
Gael T. Infande, Peter Collary, Huck, Kasten & LaBeaume, St. Louis, for appellant.
John C. Danforth, Atty. Gen., Preston Dean, Robert L. Presson, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., John F. White, Asst. Circuit Atty., St. Louis, for respondent.
The State charged defendant Rayfield Johnson by Count I with first degree burglary and by Count II with rape. The jury found him guilty of both crimes and the court sentenced him to five years' imprisonment for burglary and twenty-five years for rape.
On appeal defendant challenges the sufficiency of the indictment and the evidence, the submission of two offenses at a single trial, and the trial court's failure to give MAI-CR 2.70 on separate consideration of evidence of each crime. These contentions in turn.
In related points concerning the first degree burglary conviction defendant contends the indictment was sufficient only to charge, and the evidence sufficient only to prove, second degree burglary. This, defendant argues, since there was neither a charge nor evidence of forcible breaking.
Relevant to these challenges are the words of § 560.040, RSMo.1969, declaring a person guilty of first degree burglary who makes entry 'by forcibly bursting or breaking the . . . window . . . or the fastening of such window . . ..' The indictment charged defendant 'did break and enter' the dwelling 'by unlatching and opening a window.'
Defendant's attack on the indictment mistakenly relies on State v. Young, 345 Mo. 407, 133 S.W.2d 404 (1939). There, the court pointed to the specific statutory manner of burglarious entry and faulted the information for failing to specify the manner of entry since it charged defendant only with 'feloniously and forcibly entering the front door.' The court ruled: 'The manner of the breaking into a dwelling house is one of the ingredients of burglary in the first degree.' Young does not help defendant since the indictment here did charge the manner of entry 'by unlatching and opening a window.' We hold the indictment charged first degree burglary.
Defendant contends the evidence does not support the State's submission that there was a 'breaking of the fastening of an outer window by force.' This, since police found only disturbed dust on the window sill and no objective signs of forcible breaking. We review the evidence of entry. The kitchen window of the prosecutrix' home was closed and locked when she went to bed and open when her assailant left. This window had a metal frame, was hinged at the top and opened outward; it was fastened at the bottom by a latch on the inside. The latch had worn loose and the window could be--and the prosecutrix had on two occasions--opened it from the outside by sliding a screwdriver or a plastic card under the bottom of the window to disengage the latch. As she slept, the prosecutrix was momentarily awakened by 'a clicking sound'; while her assailant was inside the house he was armed with 'a sharp metal object.'
This evidence sufficed to prove entry by forcibly breaking the kitchen window. Precedent rarely provides a but it comes close here. In the first degree burglary case of State v. Moore, 117 Mo. 395, 22 S.W. 1086(5) (1893) the court held:
We deny defendant's challenges to the sufficiency of the indictment and the evidence on the charge of first degree burglary.
Akin to this, defendant contends the trial court erred in failing to instruct on second degree burglary, citing State v. Bell, 442 S.W.2d 535 (Mo.1969). Bell ruled this necessary if, but only if, the evidence shows entry in some manner other than by a forcible breaking, and held a second degree burglary instruction improper where the only evidence of entry was by forcibly breaking a window. Here, entry was through the prosecutrix' locked window, possible only by unlatching the window from the outside. There was no evidence to support an instruction on entry in a manner other than forcible breaking, so the trial court properly declined to instruct on second degree burglary.
Defendant separately challenges the sufficiency of evidence on the charge or rape. He did not testify but did present alibi witnesses. He does not challenge the fact of rape, only proof of his identity.
According to the prosecutrix, the rapist held a sleeping bag over her head before and during the rape; before being raped prosecutrix threw it off momentarily and saw the rapist standing between her bed and the partially opened door into a lighted bathroom. She had seen defendant on previous occasions; some days later she again saw him on the street. She then notified the police and later identified defendant by photographs and at a lineup. In court, prosecutrix identified defendant as her attacker. This testimony of identity was vigorously challenged by cross examination which tended to weaken the defendant's identification but the jury chose to accept the prosecutrix' evidence and reject defendant's alibi evidence.
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State v. Williams, 10420
... ... He argues that the 1971 amendment to Rule 24.04 was a change "of a substantive rather than a procedural nature." ... This contention is unsound. Rule 24.04 is procedural and not substantive. State v. Johnson, 537 S.W.2d 816, 819(7, 8) (Mo.App.1976); Woods v. State, 546 S.W.2d 14 (Mo.App.1976). "A defendant does not have either a federal or state constitutional right to be tried on only one offense at a time." State v. Baker, 524 S.W.2d 122, 126 (Mo. banc 1975). The courts have expressed the ... ...
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State v. Grant, 38718
...Our review is limited to whether the reversal of the order of the instructions by the trial court was plain error. State v. Johnson,537 S.W.2d 816 (Mo.App.1976). We conclude that it was not. The actual verdicts and the separate verdict forms indicate that the jury considered each offense ch......
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State v. Minor
...the instruction's purpose is to apprise the jury that evidence as to each count is to be considered separately. See State v. Johnson, 537 S.W.2d 816 (Mo.App.1976). The robbery and the murder were parts of the same transaction and the testimony concerning each offense related to the other. A......
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State v. Asberry
...State of O'Brien, 249 S.W.2d 433, 434(1) (Mo.1952), cert. den. 344 U.S. 859, 73 S.Ct. 100, 97 L.Ed. 667; cf. State v. Johnson, 537 S.W.2d 816, 818(1) (Mo.App.1976). Although the information, supra, charged that there was a felonious breaking and entering of an occupied house of another with......