State v. Miller, 48543

• Decision Date: 07 May 1985
• Docket Number: No. 48543,48543
• Citation: State v. Miller, 692 S.W.2d 339 (Mo. App. 1985)
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Earl J. MILLER, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 339

692 S.W.2d 339

STATE of Missouri, Plaintiff-Respondent, v.Earl J. MILLER, Defendant-Appellant.

No. 48543.

Missouri Court of Appeals,

Eastern District,

Division Four.

May 7, 1985.

Motion for Rehearing and/or Transfer to

Supreme Court Denied June 5, 1985.

Daniel V. O'Brien, St. Louis, for defendant-appellant.

William L. Webster, Leah A. Murray, Jefferson City, for plaintiff-respondent.

SNYDER, Judge.

Earl J. Miller was found guilty by a jury of burglary in the second degree, § 569.170 RSMo.1978, and attempted burglary in the second degree, §§ 569.170, 564.011 RSMo.1978.He appeals from the judgment and sentence imposed: fifteen years imprisonment on the second degree burglary charge concurrent with ten years imprisonment on the charge of attempted burglary in the second degree.The judgment is affirmed.

Appellant argues four points.He charges the trial court erred in: 1) denying his motion for a directed verdict of acquittal; 2) refusing to submit his offered Instruction B on entry to property under a claim of right; 3) submitting InstructionNo. 7 MAI-CR2d 2.12 modified as a verdict director for attempted burglary in the second degree; and 4) failing to instruct the jury on trespass in the first degree and attempted trespass in the first degree.The fourth allegation of error must be considered on a plain error basis, Rule 29.12(b), because appellant did not raise it in the trial court.

This court finds no merit in appellant's assertion that the trial court erred in denying his motion for a directed verdict of acquittal.In ruling on the sufficiency of the evidence to make a submissible case, this court is required to view all facts and reasonable inferences which may be drawn in the light most favorable to the state, disregarding all evidence and inferences to the contrary.State v. Arnold, 566 S.W.2d 185, 187(Mo. banc 1978).

The state's case was based on circumstantial evidence.Therefore, in order to make a submissible case, the facts and circumstances must be consistent with each other and with the hypothesis of defendant's guilt.They must be inconsistent with defendant's innocence and exclude every reasonable hypothesis of innocence, but the circumstances need not be absolutely conclusive of guilt nor demonstrate impossibility of innocence.State v. Arnoldat 188;State v. Jerelds, 637 S.W.2d 80, 81(Mo.App.1982).

All of the elements of second degree burglary may be proved by circumstantial evidence.State v. Jerelds, supra.The burglary occurred at a shopping center called First Capital Plaza in St. Charles.It consists of two one-story structures containing retail stores and an office unit.The two structures face a parking lot which lies between them.Number 207 First Capital Plaza, which along with Number 211 was the scene of the break-in, has an entrance facing Madison Avenue to the north and another facing the parking lot between the two structures.

Two eye witnesses testified that they saw appellant trying to break into the door at 207 Capital Plaza by using a crow bar which was later discovered inside the building.Appellant was not given permission to be inside the building and was apprehended as he was leaving it.

Inside the building there was damage to the door which connects No. 207 to No. 211.Pry marks marred the door near its handle.A ceiling tile was missing from the ceiling and was lying on the floor.Up in the ceiling were a walkie-talkie device and gloves.The evidence that appellant knowingly entered the building unlawfully for the purpose of committing the crime of property damage was sufficient to submit to the jury the charge of burglary in the second degree.

There was an entrance inside the building from 207 to 211 First Capital Plaza which consisted of two doors.The 207 door had pry marks around the knob.The 211 door which was four inches from the 207 door had a broken bolt lock.A box which normally blocked the 211 door had been moved.Police found an extra piece of wood trim leaning on the 207 door, and a small penlight flashlight behind one of the doors.Number 207 was vacant but there were objects of value in 211.

The elements of an attempt, including attempted burglary in the second degree, are: 1) the intent to commit the crime; 2) an overt act towards its commission; 3) failure of consummation; 4) the apparent possibility of commission.State v. Olds, 603 S.W.2d 501, 508(Mo. banc 1980).

Appellant was seen leaving the building in which the damage had occurred.All of his actions were overt acts toward the burglarizing of 211.Only the arrival of the police prevented its consummation.Appellant had a walkie-talkie with which he maintained contact with a confederate in a van outside the building, so it can be inferred that he learned from his confederate of the arrival of the police and stashed his walkie-talkie and gloves in the ceiling of the building near the door between 207 and 211.There was sufficient evidence to submit to the jury the crime of attempted burglary in the second degree.

Appellant's second point, in which he asserts the trial court erred in refusing to submit to the jury his offered Instruction B on entry under a claim of right, need...