State v. Lawrence
| Decision Date | 21 March 1978 |
| Docket Number | No. 39085,39085 |
| Citation | 566 S.W.2d 243 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Edward Vincent LAWRENCE, Defendant-Appellant. . Louis District,Division One |
| Court | Missouri Court of Appeals |
Steiner & Fenlon, Joseph A. Fenlon, Clayton, for defendant-appellant.
John D. Ashcroft, Atty. Gen., Stanley Robinson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Appellant appeals from a conviction finding him guilty of burglary in the second degree, § 560.045 RSMo 1969, and a sentence of ten (10) years imprisonment. For reasons herein stated, we affirm.
A hearing was held in chambers as to the competency of eleven-year old Barbara Hassell, the state's major witness, who was home alone at the time of the burglary. After the hearing, the court found Barbara competent to testify.
On June 13, 1977, at 9:22 p. m., Barbara testified that she heard a pounding on the front door of her apartment. When she looked out the window, she saw three men on the porch. Immediately she called the telephone operator and told her that someone was trying to break in and told her her name and address. Barbara then heard pounding on the back door. When she heard the back door open, she hid behind the rocking chair in the living room. While behind the chair, she peeked around a corner and saw a man in the kitchen whom she later identified as the appellant. The man entered the kitchen and took a step into the dining room. At that time he was attacked by Barbara's dog. Appellant finally ran out the back door and shortly thereafter the police arrived.
The next day Barbara saw two men at the office of the Audubon Park Apartments, one of whom was the appellant. That evening she went to the Clayton County Jail and identified the appellant in a lineup.
Barbara testified that on the evening of the crime, the lights were on in the kitchen and living room. From her hiding place behind a rocking chair and the wall, she was unable to see the man in the kitchen. But, when he entered the dining room as the dog tried to bite him she saw him from her stooped position behind the chair.
Barbara testified that to her knowledge the man did not have permission to come into the apartment. She further testified that the dog drove the man into the dining room. While being attacked, the man held his hands between his face and Barbara, but Barbara testified that she could see his face.
John Zinn, a member of the Brentwood police department, testified that he was called to the Audubon Apartment Complex on June 14, 1977, where appellant and another man were being held as burglary suspects. That evening Barbara picked appellant out of the lineup. On cross-examination, Barbara told the officer that there had been a TV set between the rocking chair and the dining room.
The defense provided two alibi witnesses who stated that appellant was with them in his apartment at Audubon Park at the time of the crime.
Appellant makes four points on this appeal. Appellant contends the court erred (1) in denying his motion for acquittal because of an insufficient information and a variance therefrom in that there was a failure of proof as to essential matters alleged in the information regarding ownership of property; (2) in failing to direct a verdict of acquittal because the contradictory statements given by Barbara Hassell showed that she was neither competent nor credible; (3) in failing to direct a verdict of acquittal because the state failed to show that the entry was made with felonious intent; and (4) in failing to give required criminal instruction 2.03 as the first instruction to the jury at the close of all the evidence, as required by criminal rule 20.02(a) and 20.02(f).
First, the appellant contends that the information charged him with breaking into the dwelling house of Barbara Hassell, with the intent to steal goods owned by the eleven-year old girl. He claims that there was no proof that Barbara Hassell owned such goods. This point is without merit.
The elements of burglary, in the second degree, are: breaking into a dwelling house with intent to commit a felony or to steal, § 560.045, RSMo 1969. The ownership of goods within a building alleged to have been burglarized is not an element of burglary in the second degree. State v. Stuver, 360 S.W.2d 89, 91 (Mo.1962). The law of Missouri only requires that an information for burglary ". . . 'set out the ownership of the burglarized premises' . . ." and this requirement is satisfied by an allegation of occupancy or possession. State v. Peck, 545 S.W.2d 725, 727 (Mo.App.1977); State v. Rist, 456 S.W.2d 13, 15 (Mo.1970). The need for an averment of ownership is two-fold: (1) To show that the house alleged to have been burglarized was not the dwelling of the accused; and (2) to identify the offense to protect the accused from a second prosecution for the same offense. State v. Rist, 456 S.W.2d at 15; State v. Carey, 318 Mo. 813, 1 S.W.2d 143, 146 (1927). Here the amended information contained an averment of occupancy, satisfying the law in Missouri and fulfilling the two-fold purpose of such law.
Appellant's second point is that the court erred in failing to direct a verdict of acquittal because the contradictory evidence showed that the witness was neither competent nor credible. We disagree. The test of competency of a child involves four elements, all of which should be present: (1) Present understanding of or intelligence to understand, on instruction, an obligation to speak the truth; (2) mental capacity at the time of occurrence to observe and register such occurrence; (3) memory sufficient to retain an independent recollection of the observation made; and (4) capacity to translate into words the memory of such observation. State v. Jones, 360 Mo. 723, 230 S.W.2d 678, 681 (1950); Hildreth v. Key, 341 S.W.2d 601, 609 (Mo.App.1960). The court, upon investigation, of the child's competency, found that she satisfied all of these requirements and was, therefore, competent to testify. The competency of the child is to be determined by the judge and will only be set aside if there is an abuse of discretion. State v. Jones, supra.
Appellant argues that as a matter of law, the witness did not have sufficient memory to retain independent recollection of observations and that her contradictions destroyed her credibility. This argument fails.
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