State v. Mussman, KCD

• Decision Date: 07 July 1975
• Docket Number: No. KCD,KCD
• Parties: STATE of Missouri, Respondent, v. Bernard MUSSMAN, Appellant. 27463.
• Court: Missouri Court of Appeals

Page 62

526 S.W.2d 62

STATE of Missouri, Respondent, v. Bernard MUSSMAN, Appellant.

No. KCD 27463.

Missouri Court of Appeals, Kansas City District.

July 7, 1975.

Motion for Rehearing and/or Transfer Denied Aug. 5, 1975.

Willard B. Bunch, Public Defender, E. L. Messina, Asst. Public Defender, Sixteenth Judicial Circuit, Kansas City, for appellant.

John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for respondent.

Before SOMERVILLE, P.J., PRITCHARD, C.J., and TURNAGE, J.

SOMERVILLE, Presiding Judge.

A jury found defendant guilty of Burglary, Second Degree, and fixed his punishment at imprisonment by the Department of Corrections for three years. The state's case rested on circumstantial evidence. Defendant seeks appellate relief on two grounds.

First, defendant urges that the wholly circumstantial nature of the state's evidence failed to negate 'every reasonable inference of (his) innocence.' Otherwise stated, defendant challenges the sufficiency of the evidence to sustain his conviction. In reviewing defendant's first assignment of error, this court accepts as true all evidence, circumstantial or direct in nature, favorable to the verdict, together with all favorable inferences that can reasonably be drawn therefrom, and rejects all evidence and inferences to the contrary. State v. Reed, 453 S.W.2d 946 (Mo.1970); and State v. Harris, 452 S.W.2d 577 (Mo.1970). The evidence in the instant case, when so viewed, lends itself to the following summarization.

Ronald Luebben and his family left their Kansas City home for Chicago on the morning of October 13, 1973. Prior to departure, Mr. Luebben secured all the doors and windows to both the house proper and an attached back porch. When the Luebbens departed from their home the screening and glass in all the doors and windows, both to the house proper and the back porch, were intact.

On October 16, 1973, Officer Keith Gregory, a member of the Kansas City, Missouri, Police Department, was dispatched to the Luebben home where his attention was directed to the rear of the residence. There he observed a tear in the screening in the door opening onto the back porch. Upon entering the porch he discovered that the lower right windowpane 'next to the lock' of the rear door to the house had been broken out, and was lying on the porch floor near the rear door.

'Evidence technicians' of the Kansas City, Missouri, Police Department, who were called to the scene, were able to 'lift' twelve fingerprints, later identified as belonging to defendant, from the broken windowpane lying on the porch floor near the rear door. The screened back porch door and certain objects inside the house that were disturbed did not possess surfaces conducive to the detection of fingerprints.

After being notified that his home had been broken into, Mr. Luebben returned from Chicago and found several items of considerable value missing. Mr. Luebben did not know defendant, had never seen him in the neighborhood, and at no time ever gave him permission to be on the Luebben premises or in the Luebben home.

Defendant's mother, Jewell Smith, was his only witness. The Smith home, where defendant also resided, was located approximately one mile from the Luebben home. Mrs. Smith stated that defendant was self-employed to the extent that he did 'odd jobs and canvasses for paint jobs around the neighborhood'. However, she did not recall defendant ever having performed any odd jobs in the block where the Luebben home was located.

Defendant principally relies upon Borum v. United States, 127 U.S.App.D.C. 48, 380 F.2d 595 (1967), to support his attack on the sufficiency of the evidence. There accused's conviction of 'housebreaking' was reversed on appeal. In reversing Borum's conviction, the court noted that fingerprints, identified as Borum's, found on a jar in the complainant's home which had contained a coin collection stolen during the break-in, was the only evidence introduced by the government implicating Borum. The court stressed that the government had failed to introduce any evidence from which the jury could have reasonably found that the jar on which Borum's fingerprints were impressed was 'generally inaccessible' to Borum. The case was distinguished from Stevenson and Borum v. United States, 127 U.S.App.D.C. 48, 380 F.2d 590 (1967), cert. denied 389 U.S. 962, 88 S.Ct. 347, 19 L.Ed.2d 375 (1967), decided the same day (wherein Borum and his brother-in-law, Stevenson, were jointly indicted and tried), affirming Borum's conviction for 'housebreaking and robbery' committed one month after the alleged crime involved in Borum v. United States, supra. In Stevenson and Borum v. United States, supra, the government's case not only disclosed that Borum's fingerprints were found on objects located at the scene of the crime, but went a step further with the introduction of evidence from which the jury could have reasonably found that the objects at the scene of the crime upon which Borum's fingerprints were found were 'generally inaccessible' to Borum. In the case at bar the defendant conveniently omitted any reference to Stevenson and Borum v. United States, supra.

Unlike Borum v. United States, supra, the state's evidence here disclosed the presence of defendant's fingerprints at a place wherein an illegal entry into the Luebben home had occurred. The state also presented evidence that defendant had never been observed in the neighborhood where the Luebben residence was located and at no time had permission to be on the Luebben premises or in the Luebben home. Defendant's own evidence lends itself to the conclusion that he had never performed any odd jobs in the block where the Luebben home was located. To say the least, it is highly unlikely that defendant's 'canvassing' for paint jobs would have placed him at the rear door of the Luebben residence, a location that was accessible to him only after gaining entrance onto the back porch through a screen door. Here the state's case more readily identifies itself with the government's case in Stevenson and Borum v. United States, supra, than to the government's case in Borum v. United States, supra. Testimony exists in the instant case from which the jurors could reasonably infer, without torturing the evidence, that the broken pane of glass containing defendant's fingerprints was not generally accessible to the defendant absent the intervention of criminally culpable conduct on his part. As held in State v. Gray, 504 S.W.2d 825, 826 (Mo.App.1974), a case involving facts remarkably similar to those here presented on appeal, '(a)lthough circumstantial, the fingerprint evidence was consistent with defendant's guilt and sufficient to support the guilty verdict.' The obtaining rule in this state is that when the prosecution's case rests upon circumstantial evidence 'the facts and circumstances must be consistent with each other and with the hypothesis of defendant's guilt, and they must be...