State v. Marvel

• Decision Date: 29 August 1988
• Docket Number: No. 15533,15533
• Citation: 756 S.W.2d 207
• Parties: STATE of Missouri, Respondent, v. Scott MARVEL, Appellant.
• Court: Missouri Court of Appeals

Page 207

756 S.W.2d 207

STATE of Missouri, Respondent, v. Scott MARVEL, Appellant.

No. 15533.

Missouri Court of Appeals,

Southern District,

Division One.

Aug. 29, 1988.

Sharon Ayers, Asst. Public Defender, Poplar Bluff, for appellant.

William L. Webster, Atty. Gen., Christopher M. Kehr, Asst. Atty. Gen., Jefferson City, for respondent.

CROW, Presiding Judge.

A jury found Scott Marvel ("defendant") guilty of the class C felony of tampering in the first degree, § 569.080, RSMo 1986. The trial court, having found defendant to be a prior offender, ¹ § 558.016.2, RSMo 1986, sentenced him to three years' imprisonment.

Defendant appeals, briefing three points: (1) the trial court erred in receiving evidence that defendant appeared intoxicated when arrested, (2) the trial court erred in allowing the arresting officer to testify as to statements made by defendant to a companion at the time of arrest, and (3) the evidence was insufficient to support the verdict. We address the latter point first.

In that point defendant maintains the trial court wrongly denied his motion for judgment of acquittal at the close of the State's evidence, and his subsequent motion for judgment of acquittal at the close of all the evidence. After defendant's motion for judgment of acquittal at the close of the State's evidence was denied, defendant presented evidence. By doing so defendant waived any error with respect to the denial of such motion. State v. Green, 476 S.W.2d 567, 569 (Mo.1972); State v. Thomas, 452 S.W.2d 160, 162 (Mo.1970). Consequently, the sufficiency of the evidence to support the verdict will be determined upon the basis of all the evidence. State v. Campbell, 655 S.W.2d 96, 97 (Mo.App.1983); State v. Wood, 553 S.W.2d 333, 334 (Mo.App.1977). On that issue we consider the evidence and all inferences reasonably to be drawn therefrom in the light most favorable to the verdict, and disregard all contrary evidence and inferences. State v. Guinan, 665 S.W.2d 325, 327 (Mo. banc 1984), cert. denied, 469 U.S. 873, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984); State v. McDonald, 661 S.W.2d 497, 500 (Mo. banc 1983), cert. denied, 471 U.S. 1009, 105 S.Ct. 1875, 85 L.Ed.2d 168 (1985). The test is whether the evidence, so viewed, was sufficient to make a submissible case from which rational jurors could have found beyond a reasonable doubt that defendant was guilty. State v. Bonuchi, 636 S.W.2d 338, 340 (Mo. banc 1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1206, 75 L.Ed.2d 446 (1983); Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791-92, 61 L.Ed.2d 560, 576-77 (1979).

Bill Taylor, sales manager at MidWest Motors in Dexter, arrived there about 7:45 a.m., August 25, 1987, driving his red and white Ford pickup. He parked it and entered the office. Some 15 minutes later Benjamin Rushing, an employee of MidWest Motors, arrived and saw two people standing beside Taylor's pickup. Rushing entered the office and asked Taylor if the duo was with him. Taylor replied, "No," whereupon Rushing ran outside, followed by Taylor. Rushing saw the pair walking away in a ditch. He shouted at them, and they "started scuffling up the hill to get to the other side of the ditch, and they took off running." Asked what they were wearing, Rushing responded, "As I recall, one of them was wearing a gray or a blue T-shirt, and the other one was wearing yellow." At trial, Rushing identified defendant as one of the individuals.

Taylor did not see the fleeing duo. He opened the door to his pickup, observing "stuff pulled out of the glove box." Additionally, said Taylor, "[M]y cassette recorder had been grabbed, and it looked like--tried to jerk it out of there and broke the lid." Taylor added, "I checked right then, and I noticed my two gospel tapes were gone." An air gauge was also missing.

Taylor immediately telephoned the Dexter police department. Detective Granville Gregory responded to the call, and about a half hour after the incident Gregory observed defendant and Scott Moore, a "16-year-old juvenile," on foot about three-fourths of a mile from MidWest Motors. Both were shirtless; defendant was carrying a yellow T-shirt and Moore was carrying a blue shirt.

Gregory, who was in his "duty car," stopped and asked defendant where he and Moore were going. At this point in Gregory's testimony the following exchange occurred, which supplies the basis for defendant's first assignment of error (to be discussed later).

"Q. Go ahead, sir.

A. The Defendant appeared intoxicated.

Q. Why do you say that?

A. He smelled of intoxicants--

Ms. Ayers: ² Your Honor, I--

The Witness: --speech slurred.

Ms. Ayers: --object. This is irrelevant. My client has not been charged with any crime relating to being intoxicated.

The Court: Mr. Welborn. ³

Mr. Welborn: Well, Judge, he said that he appeared to be intoxicated. I was just asking him what led him to that conclusion.

The Court: Well, what I intended to ask you was, what do you say as to her objection that it--that it is not relevant to this case?

Mr. Welborn: Well, it certainly indicates that they they've been up, Judge, and it indicates that--part of his condition as to what his condition was.

The Court: The objection is overruled.

By Mr. Welborn:

Q. Go ahead.... Just tell the jury briefly what it was that led you to that conclusion?

A. Okay. His speech was very slurred. He was unsteady, eyes were really bloodshot. His clothing was dirty, his jeans; his trousers were dirty on both--on both people."

Gregory arrested defendant and Moore, placing defendant in the front seat of Gregory's vehicle and Moore in the back seat. Describing what occurred en route to the police station, Gregory gave the following testimony, which supplies the basis for defendant's second assignment of error (also discussed later).

"Q. ... Did Mr. Marvel make any comments on the way to the police station?

A. Not to me.

Q. All right. To whom did he make the comments?

A. He kept turning around in the seat talking to the juvenile.

Q. All right. What did--

Ms. Ayers: Your Honor, I object. This is hearsay.

Mr. Welborn: No--I'm sorry, Your Honor.

The Court: The objection is overruled.

By Mr. Welborn:

Q. What did he tell the Defendant [sic] on the way back to the police station?

A. It was basically not to give me any information, not to say anything, keep his mouth shut."

Scott Moore, called as a witness by the State, testified he and defendant went to MidWest Motors on the morning of August 25, 1987, and defendant "got in this red and white truck." Shortly thereafter, said Moore, Rushing arrived and, upon seeing him, defendant and Moore ran through a "gully," eventually encountering Detective Gregory. Moore recalled he (Moore) was wearing a dark shirt. Asked what color shirt defendant was wearing, Moore answered, "Yellow, or some color."

The amended information averred defendant committed the tampering offense in that he knowingly and without the consent of the owner defaced a motor-propelled vehicle, i.e., Taylor's pickup.

Defendant, insisting the evidence was insufficient to support the conviction, asserts that the fact an accused may have been present at the scene of a crime or may have possessed the opportunity to commit it is not circumstantial evidence sufficient to justify conviction. While we do not dispute that declaration as an abstract statement of law, it does not aid defendant here.

Taylor's testimony established that the damage to the cassette recorder in his pickup occurred during the 15-minute interval between his arrival at MidWest Motors and his inspection of the vehicle immediately after Rushing reported the presence of the two strangers. Rushing identified defendant at trial as one of the two, and Moore's testimony placed defendant inside Taylor's pickup shortly before Moore and defendant fled in the ditch. Rushing's testimony about the color of the shirts worn by the suspects matched Detective Gregory's testimony regarding the shirts Moore and defendant were carrying when he confronted them a half hour later, three-fourths of a mile from MidWest Motors.

In State v. Clemmons, 579 S.W.2d 682 (Mo.App.1979), the accused was convicted of tampering with a motor vehicle, § 560.175.1, RSMo 1969. He argued on appeal that the evidence was insufficient to support the conviction. The vehicle owner testified he had washed it and cleaned its windows the day of the crime. He put a book inside the vehicle about 10:30 p.m., and saw nothing amiss. Twenty minutes later he returned to the vehicle and saw the vent window on the driver's side pointed outward. Some books and a transistor radio were missing. Fingerprints outside and inside the vent window were identified as those of the accused. The appellate court held the evidence sufficient to support a finding that the tampering had been done during the 20 minutes between the placement of the book in the vehicle and the discovery of the damage and theft. Id. at 684-85. The court further held that the accused's fingerprints outside and inside the vehicle were sufficient to support a finding that he was the culprit. Id.

The evidence in the instant case is obviously stronger than Clemmons, in that here there was eyewitness testimony by Moore that defendant was inside Taylor's pickup during the 15-minute period when the damage was done. Furthermore, defendant and Moore fled when they were observed by Rushing. An accused's flight from a crime scene is admissible to show a consciousness of guilt contrary to any theory of innocence. State v. Rodden, 728 S.W.2d 212, 219 (Mo. banc 1987). Additionally, as explained more fully later in our discussion of defendant's second point, his admonition to Moore to keep his mouth shut and to give Gregory no information was admissible as a statement by defendant against his interest, from which the jury could infer a consciousness of guilt. We therefore find the evidence sufficient to support the verdict. Defendant's third point is...