State v. Neighbors, WD

• Decision Date: 30 December 1980
• Docket Number: No. WD,WD
• Citation: 613 S.W.2d 143
• Parties: STATE of Missouri, Respondent, v. James Gaylord NEIGHBORS, Appellant. 31315.
• Court: Missouri Court of Appeals

Page 143

613 S.W.2d 143

STATE of Missouri, Respondent, v. James Gaylord NEIGHBORS, Appellant.

No. WD 31315.

Missouri Court of Appeals, Western District.

Dec. 30, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

March 2, 1981.

James G. Gregory, Montgomery City, for appellant.

John Ashcroft, Atty. Gen., Jefferson City, Darrell Panethiere, Asst. Atty. Gen., Kansas City, for respondent.

Before CLARK, P. J., and DIXON and SOMERVILLE, JJ.

SOMERVILLE, Judge.

Defendant was charge as a "persistent offender" (Section 558.016, RSMo 1978) with two counts of burglary in the second degree, a class C felony (Section 569.170, RSMo 1978). ¹ Count one, in essence, charged that on or about January 27, 1979, defendant, acting in concert with another, "knowingly entered unlawfully" an "inhabitable structure" located at Summit Plaza, Holts Summit, Callaway County, Missouri, owned by Summit Realty Company, a corporation, for the purpose of "committing property damage in the third degree therein." Count two, in essence, charged that on or about January 27, 1979, defendant acting in concert with another, "knowingly entered unlawfully" and "inhabitable structure" located in Summit Plaza, Holts Summit, Callaway County, Missouri, "possessed" by Bruce Eilers, d/b/a Eilers Drug Store, for the purpose of "committing stealing therein."

A jury found defendant guilty as charged under counts one and two of the information and assessed his punishment, respectively, at one and three years imprisonment. The trial court, pursuant to Section 558.016 and 558.021, RSMo 1978, extended defendant's punishment under count one of the information to five years confinement in the Missouri Department of Corrections and under count two of the information to ten years confinement in the Missouri Department of Corrections, said sentences to run concurrently. Judgment and sentence were entered accordingly.

Defendant does not question the sufficiency of the evidence to sustain his conviction under either count of the information. The only point of error relied upon by defendant is that the trial court erred in failing to instruct the jury on trespass in the first degree (Section 569.140, RSMo 1978) and trespass in the second degree (Section 569.150, RSMo 1978) because each is a "lesser included offense" of burglary in the second degree. Two questions are inherent in this point of error. Are both trespass in the first degree and trespass in the second degree lesser included offenses of burglary in the second degree? Was the evidence such that the trial court erred in failing to instruct the jury as to such offenses determined to be lesser included offenses? A comprehensive review of the evidence is mandated by virtue of the latter question. Incidentally, such a review will also demonstrate that substantial evidence existed from which the jury could, and obviously did, find defendant guilty of both charges of burglary in the second degree. The only evidence in the case was that offered by the state, as defendant did not take the stand or offer any evidence in his behalf.

On January 27, 1979, Summit Realty Company, a corporation, was the owner of a shopping center in Holts Summit, Missouri, at the northwest corner of the junction of U.S. 54 and State Route 00, which consisted of two one-story rectangular buildings. One building ran north and south and fronted towards the east, the other ran east and west and fronted toward the south, and a driveway ran between them. The east-west building contained seven rental units three of which were occupied by tenants and four of which were not. Bruce Eiler, d/b/a Eilers Drug Store, occupied the third rental unit from the west end of the east-west building. The rental unit immediately west of the unit occupied by Eilers Drug Store, although not occupied by a permanent tenant, contained a number of tools and construction materials.

Shortly after midnight on January 27, 1979, a burglar alarm sounded in Eilers Drug Store and two men were observed running in a northwesterly direction from the north side of the east-west building. A trailer park was located north of the shopping center and an open field "that goes to a kind of a little drainage ditch" lay west of the shopping center. There was snow on the ground at the time and a police officer who arrived at the scene traced two sets of bootprints in the snow which led up to the back door of the rental unit immediately west of Eilers Drug Store. The lock on the back door of the rental unit immediately west of Eilers Drug Store was "jimmied" or broken. A large hole was observed in the plasterboard wall which separated the two rental units heretofore mentioned. Bootprints were also observed on the carpeted floor of the Eilers Drug Store leading from the hole in the plasterboard wall to the "prescription area". These bootprints stopped a few feet from a "motion detector", which formed a part of a burglar alarm system in the Eilers Drug Store, and then "turned back". Eilers Drug Store had closed for business at approximately 9:00 P.M. on the night of January 26, 1979, and at that time all doors were locked and the burglar alarm system was set. Two sets of bootprints were also observed in the snow leading from the north side of the east-west building going in the same direction in which the two men had been observed running. A police officer traced these bootprints to the drainage ditch west of the shopping center where two men, one of whom was later identified as the defendant, were found hiding. White dust found on defendant's clothing at the time he was apprehended had characteristics similar to that of a sample taken from the plasterboard of the wall in which the hole had been made.

As previously noted, disposition of the point raised by defendant on appeal involves two questions. The first question posed is whether trespass in the first degree (Section 569.140, supra) and trespass in the second degree (Section 569.150, supra) are lesser included offenses of burglary in the second degree (Section 569.170, supra). The following test for determining whether an offense is a lesser included offense was adopted in State v. Amsden, 299 S.W.2d 498, 504 (Mo.1957): " 'The statement of the general rule necessarily implies that the lesser crime must be included in the higher crime with which the accused is specifically charged, and that the averment of the indictment describing the manner in which the greater offense was committed must contain allegations essential to constitute a charge of the lesser, to sustain a conviction of the latter offense. If the greater of two offenses includes all the legal and factual elements of the lesser, the greater includes the lesser; but if the lesser offense requires the inclusion of some necessary element not so included in the greater offense, the lesser is not necessarily included in the greater.' " This test was reaffirmed in State v. Smith, 592 S.W.2d 165 (Mo. banc 1979), and therein referred to as the "statutory element test". State v. Friedman, 398 S.W.2d 37, 40 (Mo.App.1965), interpreted the test approved in State v. Amsden, supra, as requiring "that to be a necessarily included lesser offense it is essential that the greater offense include all of the legal and factual elements of the lesser ...." Further interpretation of the approved test is found in State v. Fleming, 528 S.W.2d 513, 515 (Mo.App.1975): "An instruction on a lesser offense is not proper unless it is impossible to commit the greater without first committing the lesser, for otherwise the lesser is not properly a lesser offense to the greater."

Burglary in the second degree is statutorily prescribed in Section 569.170, supra: "1. A person commits the crime of burglary in the second degree when he knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein. 2. Burglary in the second degree is a class C felony." By force of statute, Section 569.170, supra, the elements of burglary in the second degree are (1) knowingly entering unlawfully or knowingly remaining unlawfully (2) in a building or inhabitable structure (3) for the purpose of committing a crime therein.

Trespass in the first degree is statutorily prescribed in Section 569.140, RSMo 1978: "1. A person commits...