State v. Martin, s. 62589
| Decision Date | 06 September 1994 |
| Docket Number | 64940,Nos. 62589,s. 62589 |
| Citation | 882 S.W.2d 768 |
| Parties | STATE of Missouri, Respondent, v. EZELL MARTIN, Appellant. Ezell MARTIN, Movant-Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Robert E. Steele, Jr., St. Louis, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., R. Martin Dajani, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant, Ezell Martin, was charged with one count of tampering in the first degree, in violation of § 569.080 RSMo1986. Defendant was also charged as a prior and persistent offender. After a guilty verdict, he was sentenced by the court to a term of twelve years. Defendant filed a Rule 29.15 pro se motion, contending, among other things, that the State did not prove that he was a persistent offender. His court-appointed counsel then filed an amended motion, which incorporated defendant's pro se motion, as well as presenting additional points for relief. After an evidentiary hearing, the motion court issued findings of fact and conclusions of law denying defendant's motion.
In this consolidated appeal, defendant raises two points: (1) the trial court committed plain error in that the State failed to prove beyond a reasonable doubt that defendant was a prior and persistent offender and (2) the trial court committed prejudicial error when it denied defendant's motions for judgment of acquittal, because the evidence was insufficient to establish defendant's guilt beyond a reasonable doubt. We affirm the conviction. However, we reverse and remand for resentencing if the State proves defendant was a prior and persistent offender and for a retrial if it does not.
The charge of tampering in the first degree was proven with the following evidence. On November 2, 1992, Todd Valentine parked his 1983 Buick Riviera in the Schnucks parking lot at approximately 1:00 p.m. to go to work. The car was in perfect condition; in particular, it did not have a broken steering column. Valentine took the keys to the car with him. On that day, Valentine did not give anyone, including defendant, permission to operate his car. At approximately 5:00 p.m., Valentine finished work and went to the parking lot, where he discovered that his car was missing. He reported the missing vehicle to police at approximately 5:15 p.m. and provided them with a description of his car and the license plate number. At about 7:00 p.m., St. Louis Police Officer Anthony Boone received the latest "hot list" of the license plate numbers of all vehicles reported stolen in St. Louis City and County. At approximately 7:22 p.m., Officer Boone saw a Buick Riviera with a plate number matching one on the "hot list." Boone verified that the license plate was still reported stolen, called for an assist car, and followed the vehicle until the driver pulled over to the curb on Bacon Street. Defendant was the only person in the car. Boone observed that the steering column was broken or "peeled back," exposing a switch that allowed the car to be started without keys. Boone found keys in the car's ignition, but these keys did not start the ignition or open the doors or trunk. Boone found a screwdriver in the car. Police called Valentine to the scene, where he identified the vehicle as the one he had reported missing a few hours earlier. Valentine did not recognize the keys that were found in the car's ignition, nor did the screwdriver belong to him. Valentine's keys would no longer operate the vehicle, forcing him to use a screwdriver and the exposed switch to operate it until the steering column was repaired.
We find defendant's second point on appeal challenging the sufficiency of the evidence to support a guilty verdict is wholly without merit. In reviewing the record on appeal, we view the evidence in the light most favorable to the State, together with all reasonable inferences to be drawn therefrom and ignore contrary evidence and inferences. State v. Livingston, 801 S.W.2d 344, 345 (Mo. banc 1990). These principles apply whether the evidence is direct or circumstantial. State v. Simpson, 718 S.W.2d 143, 146 (Mo.App.1986).
Defendant was convicted of violating § 569.080.1(2) RSMo1986, tampering in the first degree, which provides "[a] person commits the crime of tampering in the first degree if ... [h]e knowingly receives, possesses, sells, alters, defaces, destroys or unlawfully operates an automobile, airplane, motorcycle, motorboat or other motor-propelled vehicle without the consent of the owner thereof." Defendant claims the evidence was not sufficient to prove the "knowingly" element of the crime beyond a reasonable doubt. Direct proof of the required mental state is seldom available, and such intent is usually inferred from circumstantial evidence. Simpson, 718 S.W.2d at 146. Even in a circumstantial evidence case, the evidence need not be conclusive of guilt, nor must the evidence exclude every hypothesis of innocence. Id.
Absence of consent of owner is undisputed. The dispute is on proof defendant knew he did not have consent. The steering column in the vehicle was not broken when Valentine parked his car but was broken when defendant was found driving the car approximately six and a half hours later. A screwdriver useful in by-passing an ignition key was found in the car. The tool did not belong to Valentine; it must have belonged to defendant. Furthermore, a set of keys that Valentine did not recognize and did not start the car were found in the ignition. This was strong evidence to support the inference that defendant "knowingly" operated the vehicle without the owner's consent. Point denied.
Defendant, as a movant under Rule 29.15, argues the motion court plainly erred in denying post-conviction relief because, in sentencing him to an extended term, the trial court committed plain error and denied him due process of law in that the State failed to prove beyond a reasonable doubt that defendant was a prior and persistent offender. Defendant alleged in his motion, Defendant claims, inter alia, (1) the State tendered no evidence that defendant had been convicted with counsel and served time on any of the offenses alleged in the information as priors and (2) the State did not charge prior convictions that it did prove to support finding defendant was a prior and persistent offender.
Review of the motion court's ruling on a 29.15 claim is limited to a determination of whether the findings and conclusions are clearly erroneous. Rule 29.15(j). The findings and conclusions will be found clearly erroneous only if, after a review of the entire record, the appellate court is left with the definite and firm impression that a mistake has been made. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987).
In its findings of fact and conclusions of law, the motion court stated, The pertinent portion of the trial transcript reads as follows:
The Court ... received evidence directed to the charge that Defendant is a prior and persistent offender....
The Court now finds beyond a reasonable doubt that: 1. The Defendant ... did on April 7, 1981, in Division 12 of the Circuit Court of the County of St. Louis, pled [sic] guilty in Cause Number 450-191 to stealing over one hundred fifty dollars ($150.00), a Class C felony....
The Defendant did on April 7, 1981, in Division 12 in the Circuit Court of the County of St. Louis pled [sic] guilty in Cause Number 449-287 to carrying a concealed weapon, a Class C felony....
The Defendant was duly convicted of the aforesaid two felonies, which were committed at different times and wholly unrelated to this cause.
The Defendant ... is a prior and persistent offender.
The information, however, charged defendant as a prior and persistent offender based on four counts of tampering in the...
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