State v. Mountjoy, 29532
| Decision Date | 11 June 1979 |
| Docket Number | No. 29532,29532 |
| Citation | 585 S.W.2d 98 |
| Parties | STATE of Missouri, Respondent, v. Robert C. MOUNTJOY, Appellant. |
| Court | Missouri Court of Appeals |
Clifford A. Cohen, Public Defender, Kevin R. Locke, Asst. Public Defender, Kansas City, Herbert William McIntosh, Bellmann, Speck & Handley, Kansas City, for appellant.
John D. Ashcroft, Atty. Gen., John M. Morris, III, Asst. Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
Before HIGGINS, Special Judge, Presiding, SWOFFORD, C. J., and ROBERT R. WELBORN, Special Judge.
Appeal from conviction on jury trial of second degree burglary and stealing in connection therewith and two counts of felonious assault without malice.
In this court the issues involve the sufficiency of the evidence to support the convictions and whether or not appellant is entitled to benefit of the holding in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), although no objection was made at trial to the composition of the jury panel.
Mrs. Mary Middaugh left her home, located at 8619 Drury in Kansas City, Missouri, at 6:00 A.M. on May 13, 1976, after checking the doors and windows to see that all was secure before she left for work. The back door which the family had not been using since its access was blocked by some remodeling work was locked. She left through the front door leaving it unlocked for her son to lock when he left for school later. When she returned home at 3:00 P.M. she found the front door locked. Upon entering the house, she discovered that a gun cabinet had been broken into and nine rifles and shotguns removed. The back door was open and an obstructing board had been moved aside. No marks of forcible entry were found around the door.
In the afternoon of the same day, Darrell Phillips, who lived near the Middaugh home, saw a car back into a nearby alley and park. After Phillips and a friend, Hal Buell, went to the car and asked the driver what he was doing, the car left. As they were standing there, Phillips and Buell saw three men walking through an adjoining field carrying several rifles. Several minutes later, after Phillips and Buell had returned to Phillips' house, the same car driven by a different individual pulled up and stopped in front of that house. Again, Phillips and Buell questioned the driver and the car left. Buell recorded the car's license number, which was Missouri license Z1N-836. Shortly after the car left for the second time, Phillips' dog began to bark at a point down the street from his house. As Phillips and Buell went to retrieve the dog, they saw two men standing nearby, and then saw them kneel into the bushes. When Phillips and Buell reached the area where the dog was, one of the hiding men, subsequently identified as appellant's brother, Charles Mountjoy, pointed a gun at Phillips and Buell and said "I'm going to blow your god damn head off and your dog's too" and Phillips explained that he was merely there to get his dog. The other man, identified as appellant Robert Mountjoy, said to his brother, "Let's get the hell out of here" and both men fled. Phillips and Buell summoned the police and then returned to the place where they had seen appellant and his brother, and there found five rifles, subsequently identified as weapons taken from the Middaugh residence. Tracking the men's trail through the wet grass, Phillips traced their path back to the Middaugh home.
After taking the statements of Phillips, Buell and Mrs. Middaugh and determining that the described license plate was registered to Charles Mountjoy, police put out a "pickup order" for that individual. Appellant and his brother were apprehended fifteen days later as they were in the process of pushing Charles Mountjoy's car (license number Z1N-836) out of a ditch. Appellant was identified by Phillips and Buell at the trial.
Appellant's fingerprints were found on the gun cabinet and the appellant had not been given permission to enter the home or take the guns.
Appellant offered his own testimony and that of another witness in support of his alibi defense that he and his brother had been painting a woman's house all during the day in question.
Appellant was found guilty as charged on Count I of second degree burglary and stealing, and guilty on Counts II and III of the lesser included offense of assault with intent to do great bodily harm without malice aforethought. Appellant was sentenced by the court under the Habitual Criminal Act five years for burglary and five years for stealing, to run consecutively, and five years each on Counts II and III, such sentences to run concurrently with the burglary and stealing sentences. Appellant brings this appeal from his conviction and sentence.
Appellant contends that the evidence was insufficient to support the verdict because there was no evidence of a breaking into the Middaugh household.
In reviewing a sufficiency of the evidence contention, all evidence tending to support the guilty verdict must be considered true, contrary evidence disregarded and every reasonable inference supporting the verdict must be indulged. State v. Hatten, 561 S.W.2d 706, 711(2) (Mo.App.1978). Appellant argues the evidence of breaking in this case was entirely circumstantial and therefore " * * * the facts and circumstances relied on by the state to establish guilt must be consistent with each other, consistent with the guilt of the defendant, and inconsistent with any reasonable theory of his innocence." (citations omitted.) State v. Lee, 556 S.W.2d 25, 32(13, 14) (Mo. banc 1977).
Appellant does not challenge the proof of entry or intent to steal but contests a lack of evidence showing a Breaking. To find the appellant guilty of second degree burglary the jury must have found that the appellant broke and entered the home with the intent to commit a felony or a theft therein. State v. Cox, 527 S.W.2d 448, 452(4, 5) (Mo.App.1975). The evidence of breaking viewed in its most favorable light toward upholding the guilty verdict is as follows: before she left for work at 6:00 A.M. on the day of the burglary, Mrs. Middaugh "secured the house," checking among other things to make sure that the back door was closed and locked; however, she left the front door unlocked for her twelve-year-old son, who was to leave after her, to close and lock when he went to school. Mrs. Middaugh testified that as a result of some unfinished remodeling work, inside access to the back door was partly blocked by a board leaning against it and that, consequently, "we locked it and never went in and out (of) it." When she...
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State v. Mitchell, 61839
...396-97 (Mo.1972). Our review is limited to examination for plain error under Rule 29.12(b), (formerly Rule 27.20(c)). State v. Mountjoy, 585 S.W.2d 98, 102 (Mo.App.1979). The first argument that appears in appellant's brief is that by excluding from jury service those who would never impose......
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State v. Johnson, 61612.
...error doctrine, and no consideration was given to that doctrine by the Williamson decision. We are also aware that in State v. Mountjoy, 585 S.W.2d 98 (Mo. App.1979), this court declined to apply Duren where the defendant had not raised the issue before the trial court by timely motion to q......
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