State v. Magee

• Decision Date: 05 December 1995
• Docket Number: No. WD,WD
• Citation: State v. Magee, 911 S.W.2d 307 (Mo. App. 1995)
• Parties: STATE of Missouri, Respondent, v. Brett M. MAGEE, Appellant. 49875.
• Court: Missouri Court of Appeals

Page 307

911 S.W.2d 307

STATE of Missouri, Respondent, v. Brett M. MAGEE, Appellant.

No. WD 49875.

Missouri Court of Appeals Western District.

Dec. 5, 1995.

Robert G. Duncan, Kansas City, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Christine M. Kocot, Asst. Atty. Gen., Jefferson City, for respondent.

Before SPINDEN, P.J., and BRECKENRIDGE and SMART, JJ.

BRECKENRIDGE, Judge.

Brett M. Magee was convicted of four counts of burglary in the second degree, § 569.170, RSMo 1994, ¹ and four counts of stealing over $150.00, § 570.030. He was sentenced as a persistent offender to eight concurrent twenty-year terms of imprisonment. Mr. Magee now appeals, claiming that there was insufficient evidence to support the convictions, that the trial court erred by refusing to grant him a new trial on the basis of newly discovered evidence, and that the trial court erred by sentencing him as a persistent offender. The convictions are affirmed, but the cause is remanded for resentencing.

This case arises from burglaries and thefts which took place at the Motter Building, an office complex located at 851 N.W. 45th Street in Gladstone, Missouri. At the time that the crimes occurred, the tenants of the Motter Building included Northland Cardiology, the Pulmonary Medicine Association, Corporate Personnel and Associates, and two attorneys, Ronald C. Thiewes and Ann Robards.

On January 4, 1993, Mr. Thiewes, Ms. Robards, and employees of the other aforementioned tenants noticed that the doors to these businesses had been pried open, and that money and other items had been taken. Northland Cardiology was missing $70.00 from a cash box, a mini-cassette recorder, an optiscope, and an otoscope. The total value of these articles was $617.00. A fax machine with an estimated value of between $500.00 and $600.00 had been taken from the Pulmonary Medicine Association. Corporate Personnel and Associates was missing two corporate checkbooks, a small television set, and some other items. The total value of these articles was estimated to be between $300.00 and $700.00. A fax machine with an estimated value of $800.00, an answering machine with an estimated value of $39.00 to $49.00, and a beeper had been taken from Mr. Thiewes' office. Ms. Robards was missing items from a lockbox which contained the personal belongings of a client. The items taken from the lockbox included a wallet, credit cards, cash, and a checkbook.

In addition, the investigating police officers discovered that someone with a prying tool had tampered with both a Coke machine and a candy machine in the building. The officers also found pieces of rubber gloves scattered in the hallways and inside the burglarized offices. None of the property stolen in the burglaries was ever recovered.

Mr. Magee was arrested and charged with the crimes in an eight-count information. Counts I and II pertained to the burglary and the theft, respectively, at Corporate Personnel and Associates; Counts III and IV to the burglary and theft, respectively, at Northland Cardiology; Counts V and VI to the burglary and theft, respectively, at the office space shared by the attorneys; Counts VII and VIII to the burglary and theft, respectively, at the Pulmonary Medicine Association.

Donnie Burlington, a long-time acquaintance of Mr. Magee's, testified at the trial. On direct examination, the prosecutor questioned Mr. Burlington as follows:

Q. Have you ever had a conversation with Brett Magee about him being involved in burglaries and stealings at an office complex in Claymont?

A. Yes.

Q. Did Brett Magee tell you that he was involved in burglaries and stealings?

A. Yes.

Mr. Burlington proceeded to recount that, several days after the burglaries occurred, Mr. Magee and Jimmy Tuggle came over to Mr. Burlington's house and showed him certain items in their possession. Mr. Burlington testified that they showed him "[a] couple fax machines, liquid valium" and "doctor tools." In addition, Mr. Magee made another trip to Mr. Burlington's house at around the same time and showed Mr. Burlington "a wad of money" and car stereo equipment which Mr. Magee had just purchased for Andrea Moore, who was Mr. Magee's girlfriend at the time. The prosecutor then questioned Mr. Burlington as follows:

Q. When Mr. Magee talked to you about the burglaries, did he tell you he got into the--

A. Yes.

Q. How did they get into the office?

A. Jimmy is the first one that told me how they got in.

Q. Was Brett Magee there when Jimmy Tuggle told you?

A. No, not when Jimmy told me how they got in.

Q. What did Brett Magee tell you about it?

A. He didn't ever tell me how he got in. He just told me where he got all the stuff from.

Q. Where did he get the stuff from?

A. The office buildings there off--I don't know the road, Vivion Road?

Q. Did Magee tell you how many offices he was in?

A. He said approximately ten.

Q. What about vending machines?

A. Jimmy told me that they had broke into a candy machine or a coke machine.

Mr. Burlington further testified that, in a verbal statement which he gave to Detective Brent Whittlesey on January 25, 1993, he related that Jimmy Tuggle had shown him three duffle bags full of stolen property which included "liquid valium, answering machines, fax machines, pagers, doctor's tools, payroll checks, blank personal checks."

Andrea Moore also testified at the trial. She stated that Mr. Magee borrowed her car on January 4, 1993 and had stereo equipment installed in the vehicle before returning it. Ms. Moore testified that, when she asked Mr. Magee how he had acquired the money to pay for the stereo equipment, "[h]e told me his mother cleans office buildings in Claymont and he told me that him and Jimmy Tuggle had broke into the buildings and he took the money from the building." According to Ms. Moore, Mr. Magee told her that on the night of January 3, 1993, after his mother had gone to sleep, he and Mr. Tuggle took her car and burglarized the office building.

Ms. Moore also testified that Mr. Magee told her that he had taken a crowbar with the intention of using it to gain entry, that he had worn rubber gloves to avoid leaving fingerprints, and that the rubber gloves had broken while he was burglarizing the offices. When the prosecutor asked Ms. Moore if Mr. Magee had mentioned any items taken from the offices, Ms. Moore stated: "He had told me that they stole office equipment and money and liquid valium."

At the conclusion of the trial, a jury found Mr. Magee guilty on all counts. Along with Mr. Magee's motion for a new trial, he filed a Rule 29.13 motion seeking relief on the basis of newly-discovered evidence. The motion was overruled by the trial court after a hearing.

In his first point on appeal, Mr. Magee claims that there was insufficient evidence to support the convictions in this case. In particular, Mr. Magee argues that, while evidence tended to prove that Mr. Magee was involved in some kind of burglary and that he stole certain items, it did not sufficiently establish that he was involved in the particular burglaries and thefts that took place at the Motter Building.

In support of his contention, Mr. Magee refers to the fact that, while Mr. Burlington and Ms. Moore referred to Mr. Magee's involvement in criminal activity at "an office building in Claymont," or "an office building off Vivion Road," they never made any reference to the Motter Building or to the Motter Building's specific address. In addition, Mr. Magee notes that Mr. Burlington and Ms. Moore both referred to a theft of liquid valium in their accounts of Mr. Magee's burglaries, while none of the victimized tenants in the Motter Building reported the loss of such an item.

In reviewing a challenge to the sufficiency of the evidence, this court accepts as true all of the evidence favorable to the State, including all favorable inferences drawn from the evidence, and disregards all evidence and inferences to the contrary. State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989). In such a review, the role of this court is not to weigh the evidence, but to determine whether there was sufficient evidence from which reasonable jurors could have found the defendant guilty. State v. Weide, 812 S.W.2d 866, 869 (Mo.App.1991).

There was sufficient evidence from which reasonable jurors could have found that Mr. Magee burglarized and stole from the four tenants in the Motter Building. Mr. Magee's mother testified that one of the buildings at which she performed cleaning services was the Motter Building. Ms. Moore testified that Mr. Magee had admitted to her that he had committed burglary and theft at a building that his mother cleaned, and that his criminal acts took place on January 3, 1993, which was the night before people employed in the Motter Building returned to work to find their offices had been pried open and items and money were missing. Ms. Moore also testified that Mr. Magee mentioned wearing rubber gloves which broke during the incident. Police officers who investigated the scene of the crimes at the Motter Building testified that they found pieces of rubber gloves in the offices and hallways. Ms. Magee further testified that Mr. Magee mentioned taking a crowbar to gain entry, and police found that a prying tool had been used at the scene.

In addition, Mr. Burlington testified that Mr. Magee had told him that he and Mr. Tuggle had broken into a Coke machine or a candy machine during the incident. Police officers who investigated the Motter Building testified that a prying tool had been used to tamper with a Coke machine and a candy machine there. Mr. Burlington also told Detective Whittlesey that Mr. Tuggle had showed him stolen items which generally match the items reported taken from the Motter Building. This is sufficient testimony from which jurors could reasonably infer that Mr. Magee's criminal activity took place at the Motter Building. Point denied.

In his second point on appeal, Mr. Magee claims that ...