State v. Laughlin, s. 18799

• Citation: 900 S.W.2d 662
• Decision Date: 19 June 1995
• Docket Number: 19913,Nos. 18799,s. 18799
• Parties: STATE of Missouri, Respondent, v. Dwight LAUGHLIN, Appellant. Dwight LAUGHLIN, Appellant, v. STATE of Missouri, Respondent.
• Court: Court of Appeal of Missouri (US)

Page 662

900 S.W.2d 662

STATE of Missouri, Respondent, v. Dwight LAUGHLIN, Appellant.

Dwight LAUGHLIN, Appellant, v. STATE of Missouri, Respondent.

Nos. 18799, 19913.

Missouri Court of Appeals,

Southern District,

Division Two.

June 19, 1995.

Ellen H. Flottman, Office of the State Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Cheryl A. Caponegro, Asst. Atty. Gen., Jefferson City, for respondent.

CROW, Judge.

Appellant, Dwight Laughlin, was found guilty by a jury of first degree burglary, § 569.160, ¹ and first degree property damage, § 569.100. The trial court, finding Appellant a prior offender and a persistent offender, sentenced him to 30 years' imprisonment for the burglary and 10 years' imprisonment for the property damage, to be served consecutively. Appellant brings appeal 18799 from that judgment. ²

While appeal 18799 was pending, Appellant commenced an action per Rule 29.15 ³ to vacate the judgment. After an evidentiary hearing, the motion court entered judgment denying relief. Appellant brings appeal 19913 from that judgment.

We consolidated the appeals, Rule 29.15(l ), but address them separately in this opinion.

Appeal 18799

Appellant's first point contends the trial court erred in overruling his "motion for judgment of acquittal" at the close of all the evidence, because the evidence was insufficient to support the conviction of first degree burglary. In reviewing a challenge to the sufficiency of the evidence, we accept as true all of the evidence favorable to the verdict, including all favorable inferences drawn from the evidence, and disregard all evidence and inferences to the contrary. State v. Grim 854 S.W.2d 403, 405 (Mo. banc 1993), cert denied, 510 U.S. 997, 114 S.Ct. 562, 126 L.Ed.2d 462 (1993). Review is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found Appellant guilty beyond a reasonable doubt. Id.

On February 3, 1993, Officer Randy Sweet responded to an "alarm call" at the post office in Neosho. He searched the perimeter of the building, found it to be secure, and then left.

A few minutes later, around 9:00 p.m., the alarm sounded again. This time, Officers Jim Basinger and Tim Bender went to the scene. They noticed the "caulking compound" on one window had been broken away, and another window was open about an inch. The wire grill behind the latter window was loose.

After two other officers arrived, Officer Bender went to the front of the building. He saw Appellant "hanging off the ledge." Bender shouted at Appellant to stop, and Appellant immediately climbed to the roof of the building. Officer Basinger, alerted by Bender's cry, went to the northwest corner of the building. There, Basinger saw Appellant "peeking over the edge of the west side of the building."

Police officers surrounded the building. Deputy Sheriff Mike Smith arrived at the scene with a search dog. He entered the building through the open window with another officer and the dog. The trio searched the first room they entered, then Smith gave a "standard warning" for anyone inside the building to "show themselves." After three warnings, Deputy Smith released the dog. Appellant was found lying on some pipes in the basement. The police searched the rest of the building, but found no one else.

Several items of evidence were collected from the roof of the building, including a plastic bag with letters containing credit cards, a "scanner" set to the Neosho Police frequency, a flashlight, a crowbar, and a paper bag with money and stamps inside. The vault door to the safe inside the building was open, with the combination dial removed and lying on the floor. The police found a crowbar, a pipe wrench, three screwdrivers, a hammer, and a metal punch in front of the safe.

Section 569.160.1 provides:

"A person commits the crime of burglary in the first degree if he knowingly enters unlawfully ... in a building ... for the purpose of committing a crime therein, and ... while in the building ...:

. . . . .

(3) There is present in the structure another person who is not a participant in the crime."

The Third Amended Information stated Appellant "knowingly entered unlawfully in a building, ... for the purpose of committing stealing therein, and while in such building there was present in such building Mike Smith, a person who was not a participant in the crime." ⁴

Appellant contends there was insufficient evidence to show he had the "intent to commit a crime in the building when he entered the second time, the only time during which there was a nonparticipant in the crime present." Appellant claims he was merely trying to elude the police when he reentered the building from the roof.

Because there is rarely direct evidence of the intent of the culprit at the time of the commission of the crime, the requisite intent may be proved by circumstantial evidence. State v. Faber, 499 S.W.2d 790, 794 (Mo.1973). That nothing was stolen is unimportant in determining a culprit's intent. State v. Cameron, 604 S.W.2d 653, 661-2 (Mo.App.E.D.1980).

Appellant did not testify at trial. Therefore, his theory depends on inferences he says should be drawn from the testimony of the officers who responded to the scene. The flaw in Appellant's argument lies in his assumption that there is only one inference to be drawn from that testimony.

The jury did not have to accept Appellant's theory of the crime. They could have believed Appellant reentered the building to complete the burglary, not to escape. He never attempted to flee; rather, he hid in the basement. He also left several items on the roof, suggesting he intended to return later to collect them.

Appellant's earlier flight to the roof could reasonably be viewed as a disruption of his attempt to steal money, stamps and credit card numbers from the building. Although he took some tools with him, he also left several items beside the vault. One important item he took with him was the scanner, which indicated he was monitoring the activities of the police. The police had come once before and left. Appellant could have believed he could avoid detection again and then complete the burglary.

We hold the State produced sufficient circumstantial evidence to support a finding that Appellant entered the building from the roof with the intent to steal. ⁵

Appellant's first point is denied.

In his second point, Appellant contends the trial court erred in "overruling Appellant's objection to evidence of burglar tools found in ... Foley's car."

On direct examination, Officer John Trimble testified he saw a "brown sedan" parked near a hospital. Appellant's trial counsel objected on grounds that such evidence was irrelevant and without proper foundation. At sidebar he stated, "I don't see that this brown Pontiac being located by the hospital is relevant." The prosecutor assured the judge there would be testimony that Appellant drove the car to the spot where it was found and "burglar tools" were found inside the car. The prosecutor added, "I'm not going to call them that, but that's what would be inside that car." The judge then overruled Appellant's objection.

The testimony of Officer Trimble continued:

"Q [W]hen you went to the hospital and found this brown car, did you run the plates to see who it belonged to?

A Yes, sir. I did.

Q And who is that?

A It came back to, I believe it was, a ... Foley out of Joplin.

Q All right. Do you know whether or not that ... Foley is associated with or somehow related to the Defendant?

A I understand--

[Appellant's trial counsel]: Judge, I would object. I think a foundation--proper foundation needs to be laid before he can answer that question.

THE COURT: Sustained.

. . . . .

Q Did you know where [Appellant] had been living before this evening?

A No, sir. I did not.

Q All right. Did you make an attempt to determine whether or not [Appellant] was ... somehow associated with ... Foley?

A We had received that information prior to finding the car. That's why we were looking for it.

. . . . .

Q .... [D]id you inventory that car?

A Yes, sir. I did.

Q All right. And did you find any of the items that you know belonged to [Appellant] inside the car?

A Not that I know for a fact belonged to him. No, sir.

Q All right. What did you find inside the car?

A The--Behind the passenger's seat, there was a hammer. There was a pair of tin snips. There was a portable hacksaw; in other words, a small folding type hacksaw. There was also two pair of men's gloves."

The above passage forms the basis for Appellant's second point. Appellant's trial counsel made two objections. The first was overruled only after the prosecutor assured the judge that the relevance of the evidence would be established. At this point, the only testimony presented was that a brown sedan was parked near the hospital. No evidence had been offered about items found within the car, nor was there any link established between Appellant and the car.

After the prosecutor asked Officer Trimble whether Foley was associated with Appellant, Appellant's trial counsel objected on grounds of lack of foundation. The trial court sustained this objection. No other relief was requested. We therefore assume the corrective action taken by the court was adequate. State v. Babbitt, 639 S.W.2d 196, 199 (Mo.App.E.D.1982). Because Appellant received the only relief requested, he cannot now complain of error. State v. Mitchell, 751 S.W.2d 65, 67 (Mo.App.E.D.1988). After receiving that relief, he registered no further objection to the inquiry about Foley or the car.

Additionally, the admission of irrelevant evidence is reversible only upon a showing of prejudice. Robertson v. State, 464 S.W.2d 15, 20 (Mo.1971). Appellant has failed to show how the above testimony was prejudicial. The State did not establish a connection between the car and Appellant. Although the prosecutor promised the court at the sidebar conference ...