State v. Murray, 63216

• Decision Date: 06 April 1982
• Docket Number: No. 63216,63216
• Parties: STATE of Missouri, Respondent, v. Bruce W. MURRAY, Appellant.
• Court: Missouri Supreme Court

Page 577

630 S.W.2d 577

STATE of Missouri, Respondent, v. Bruce W. MURRAY, Appellant.

No. 63216.

Supreme Court of Missouri, En Banc.

April 6, 1982.

James G. Gregory and John Edward Cash, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Madeleine O. Birmingham, Asst. Atty. Gen., Jefferson City, for respondent.

RENDLEN, Judge.

Convicted on two counts of second degree burglary and sentenced to concurrent prison terms of three and five years respectively, defendant appeals. We consider the cause, transferred here from the Missouri Court of Appeals, Western District after opinion, as though on original appeal. Art. V, § 10, Mo.Const.

The Summit Realty Company owns the Summit Plaza, a "strip" shopping center in Holts Summit, Missouri, with a large parking area flanked by long one-story buildings on the west and north, each housing a row of stores separated by partition walls. These buildings are arranged in an "L" pattern, one lying on a north-south axis (hereafter the west building) and the other, referred to as the north building, running east at a right angle from the northern end of the west building. The vertex of the "L" is near the northwest corner of the Plaza and at their closest points the buildings are no more than 60 feet apart.

The stores of the west building face east toward the main parking lot while those in the north building face south with their back or north entrances opening on a driveway. All available spaces of the west building had been leased, but only four of the six available stalls in the north building were rented on January 27, 1979. A unit near the middle of that building was occupied by the Eilers Drug Store and the adjacent store space to the west was one of those available for leasing.

Among a number of persons at the "Plaza" during the late night of January 26th and early morning of January 27th, 1979, was a young man who discovered his parked truck had been broken into and a radio stolen. The police were called to the scene to investigate that incident and upon their arrival, the burglar alarm in Eilers Drug Store sounded. An employee of the movie theater located on the east end of the north building ran from the theater to the back of the building in time to see two persons, apparently male dressed in dark clothing, run from the back of one of the stores and up an embankment a short distance to the north. Several of the persons in the parking lot, including the police, also saw the two men as they ran west along the embankment, and immediately took chase on foot. A short time later the police apprehended two men dressed in dark clothing, one of whom was appellant, lying facedown in a ditch west of the Plaza. Footprints in the snow of two persons were traced from the north building, west toward a lagoon not far from where appellant was arrested. An examination of Eilers Drug Store and the adjacent unleased storeroom revealed that the empty store had been entered by breaking the lock of its rear door and access to Eilers Drug Store attained by knocking a hole approximately 2 feet in diameter through the plasterboard wall separating the stores. The burglar alarm, which attracted so much attention, had been activated when the drug store was entered, and footprints discovered inside the store matched inkblots taken from appellant's shoe soles. Also, a chemical analysis of a wallboard sample taken from the breached wall compared with that of a powdery substance found on appellant's jacket, disclosed the substances had "very similar properties."

Appellant was charged and convicted in Count I of burglarizing the empty store by unlawfully entering for the purpose of committing property damage "in the third degree therein" and in Count II with burglarizing Eilers Drug Store by unlawfully entering for the purpose of "stealing therein."

I.

This was a circumstantial evidence case from which reasonable inferences were available to support submission of several theories of guilt including appellant's role as an active participant or as an aider in a manner less than an active participant. In this connection a definitional instruction, MAI-CR2d 2.10, was given but the verdict directors were not in the form of MAI-CR2d 2.12 as required by Note on Use 3 to MAI-CR2d 2.10 in instances when 2.10 is given. Instead, the verdict director selected for submission of each Count, was MAI-CR2d 23.52. ¹ Appellant asserts this utilization of MAI-CR2d 23.52, instead of 2.12, was error under Rule 28.02(e) and urges we deem it prejudicial.

Assuming that error occurred, though we do not decide the point, trial error carries a presumption of prejudice that may be rebutted by the facts and circumstances of a particular case, State v Walker, 484 S.W.2d 284 (Mo.1972); State v. Howard, 601 S.W.2d 308 (Mo.App.1980), and its prejudicial effect is to be judicially determined, State v. Boyington, 544 S.W.2d 300 (Mo.App.1976). This principle is applicable to instances of erroneous jury instructions. Simms v. State, 568 S.W.2d 801 (Mo.App.1978).

MAI-CR2d 2.12, which appellant insists should have been submitted in lieu of those given as the verdict directors for each count, would have allowed the jury to convict appellant if he aided in the crime as an active participant or in a manner less than an active participant and, as noted above, the evidence supported submission of either or both theories of guilt. On the other hand, giving of MAI-CR2d 23.52 permitted the jury to convict appellant only as an active participant. By narrowing the bases for conviction, the giving of MAI-CR2d 23.52 operated to his advantage, not his prejudice and at most was harmless error, Rule 29.12(a), and not a ground for reversal. State v. Lowery, 565 S.W.2d 680 (Mo.App.1978). See also, State v. McIlvoy, 629 S.W.2d 333 (Mo. banc 1982).

II.

Appellant next challenges the sufficiency of the evidence as to Count I, claiming that the unleased stall was not shown to be an inhabitable structure within the terms of § 569.010(2) and § 569.170, RSMo 1978; further, it was not proved appellant intended to commit "property damage in the third degree" inside the unleased stall because the wall he breached was part of Eilers Drug Store, not a part of the vacant stall.

Inhabitable structure as defined in the Criminal Code, § 569.010(2), RSMo 1978, includes

a ship, trailer, sleeping car, airplane, or other vehicle or structure:

(a) Where any person lives or carries on business or other calling ; ...

Any such vehicle or structure is "inhabitable" regardless of whether a person is actually present; Section 569.010(2), RSMo 1978. (Emphasis added)

Accordingly, a "structure" in which a business is "carrie(d) on" is an inhabitable structure within the meaning of the statute. The vacant stall, complete with walls, roof and floor most certainly was a structure. It was separated from the stores on either side by partition walls and its doors were closed and locked. The only question is whether Summit Realty Company as the owner/lessor, was "carr(ying) on" a "business or other calling" within the leased stall in a manner satisfying § 569.010(2)(a). As owner of the building in which both the unleased stall and Eilers Drug Store were located, the company was engaged in the business of leasing the stalls to prospective tenants and would be expected to show such prospects available properties. The burglarized stall was locked and it may reasonably be inferred that this was to keep it secure and in condition to be displayed for leasing purposes at any time. Consistent with this inference is the fact that after the burglary, the unit was let for use as a restaurant. Summit Realty was in the business of leasing its properties, and could be said to be carrying on that business at least to some extent within the stall itself.

Appellant also asserts that the common wall separating the vacant stall and the drug store belonged to the drug store property. This stems from the testimony of the drug store proprietor Bruce Eilers, who, when examining a photograph (State's Ex. No. 9) depicting the interior of his store and the damaged wall, was asked to whom the wall belonged. He replied it was his. From this, appellant argues the breach of the wall did not damage property inside the vacant stall and could not serve as a basis for the charge of property damage "therein". This argument is not well taken. The referenced photograph shows the common wall between the stores, as seen facing west inside Eilers' Store. When read in context, Eilers' remark refers to that part of the wall facing the drug store and does not establish that Eilers, as a tenant, owned or had exclusive control of both sides of the partition wall. The question of who owned the common wall, in the absence of an agreement otherwise, may be resolved by reference to general legal principles governing party walls. As of January 27th, 1979, Summit Realty had conveyed a leasehold interest in the stall on the east side of the wall to Eilers but retained full title to the stall on the west. Where the owner of a structure divided by a common wall conveys an...