State v. Newland, KCD

• Decision Date: 03 December 1979
• Docket Number: No. KCD,KCD
• Citation: 592 S.W.2d 495
• Parties: STATE of Missouri, Respondent, v. Kenneth C. NEWLAND, Appellant. 30462.
• Court: Missouri Court of Appeals

Page 495

592 S.W.2d 495

STATE of Missouri, Respondent, v. Kenneth C. NEWLAND, Appellant.

No. KCD 30462.

Missouri Court of Appeals, Western District.

Dec. 3, 1979.

Motion for Rehearing and/or Transfer Denied Dec. 31, 1979.

Peter J. Koppe and E. Timothy Shea, III, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before SHANGLER, P. J., and SWOFFORD and CLARK, JJ.

SWOFFORD, Judge.

Appellant (defendant) was convicted after trial by jury of the offense of Burglary Second Degree and Stealing. The defendant was tried under an amended information charging one prior felony conviction, and accordingly he was sentenced by the court under the Second Offender Act to five years imprisonment on the Burglary charge, and five years on the Stealing charge, to be served concurrently.

On July 19, 1978, the day the jury returned its verdict, the trial court gave defense counsel ten additional days to file his motion for a new trial, or until August 8, 1978. No further extension of time was applied for by the defendant. The motion for a new trial was not filed until August 14, 1978, and the motion was overruled on September 7, 1978, sentence was imposed, and this appeal followed.

The defendant raises two points on appeal. First, he charges the trial court with error in sentencing him under the Second Offender Act because of lack of jurisdiction to do so under the amended information. His position is that since the amended information failed to allege that following his prior conviction and sentence he was "imprisoned, placed on probation, fined or paroled", a vital and obligatory averment under § 556.280 RSMo 1969 ¹ and that he was thus denied due process of law.

Second, the defendant takes the position that the trial court erred in overruling his motions for a judgment of acquittal at the close of the State's evidence and at the close of all the evidence, in that there was not sufficient evidence as a matter of law to support a verdict of guilty.

This second contention will be first considered because if the evidence was insufficient as a matter of law to support the verdict of guilty of the crimes charged, the matter should not have been submitted to the jury but a judgment of acquittal should have been entered, and that would end the matter regardless of the element of the case relating to the application of the Second Offender Act.

The motions for judgment of acquittal referred to under this point do not appear in the transcript before this Court, but the transcript contains a statement by the official reporter in the case that such motions were omitted because they were not filed in the Circuit Court. Indeed, the transcript of the trial proceedings discloses that the defendant's trial counsel (not the same counsel presently representing Defendant) did not at any time make even an oral motion requesting such relief. Nevertheless, this point on appeal by reason of its very nature will be considered under Rule 27.20(c) though not properly raised at the trial nor properly preserved for review. This course is followed because the point constitutes a direct attack upon the sufficiency of the evidence to support the judgment of conviction involving defendant's substantial rights and which, if supported by the record, necessarily resulted in manifest injustice. State v. McClunie, 438 S.W.2d 267, 268(1, 2) (Mo.1969); State v. White, 439 S.W.2d 752, 753(1, 2) (Mo.1969); State v. Collett, 542 S.W.2d 783, 785(1) (Mo. banc 1976).

Defendant primarily directs this argument to one element of the crime of Burglary in the Second Degree which he asserts was lacking in evidentiary support. He states that the State failed to establish any "breaking" into the home of the victim by the defendant, a necessary element of the crime under § 560.045 RSMo 1969. ² The fact that defendant's point is directed to only one element of the crime does not change the application of the judicial decisions above cited nor this Court's duty to review the evidence as to sufficiency under Rule 27.20(c). State v. Dupree, 477 S.W.2d 129, 130(1) (Mo.1972).

This Court recognizes that in the exercise of this review it is not the function nor prerogative of this Court to weigh the evidence, but the scope of such review is to determine whether substantial evidence was adduced in the trial to support the verdict of guilty of the offense charged, State v. Eaton, 568 S.W.2d 541, 545(8) (Mo.App.1978), when all the evidence and reasonable inferences to be drawn therefrom are viewed in a light most favorable to the State, as they must be on this appeal, State v. Franco, 544 S.W.2d 533, 534(1) (Mo. banc 1976).

The record discloses substantial evidence from which the jury could find the following facts:

Edith Henrich, a widow 74 years of age, lived alone in her home at 1607 Belleview, Kansas City, Missouri. This was a two-story home facing west on Belleview, and there was a back door on the rear of the house toward the south end and a cement walk from the front door area leading from the front walk giving access to Belleview, around the side of the house, and connecting with the steps giving access to the back door.

On January 31, 1978, Mrs. Henrich was sitting in a small room toward the back of the house a little after 10:00 o'clock P.M., having some coffee before retiring. The room in which she was sitting was the only lighted room in the house. At that time, she had approximately $800.00 in currency, which she had accumulated and which was in a Kleenex box, under the Kleenex, on top of a "safe", which it appears was in the room in which she was seated. This safe was apparently not a safe in the ordinary sense but some kind of a cabinet which she described as a "dish safe" in which she kept dishes and stew pans.

As Mrs. Henrich was having her coffee, she heard a light knock at the back door; she went to a first floor window from which she could view the back door and the steps leading to it; she saw two men standing there; and, after a short time, she went to her front door. When she opened the front door, she saw two men standing "just outside the porch" near or on the walkway leading to the back door. One of them threw a flashlight on her and told her he was a detective and was there to help her. Mrs. Henrich told him she didn't believe him and commenced to "holler" for help. At that time, she was still standing "in the screen door" and thereupon, the men "again" went around to the back of her house. She pulled her front door closed (it had a spring lock) and she went to a neighbor's home and the police were called. She stated that she encountered no person from her front door to the neighbor's home. When the police arrived, she told one of them that there were some men in her house. Within a short time, she went back to her home; the police had two men in custody; the Kleenex box was no longer on top of her safe; she was taken by a policeman to the second floor where the money was then located, and it was returned to her that evening by the policemen.

She testified that one of the men in custody looked like the man who had told her a short time earlier that he was a detective, but the record discloses that she never did make any positive identification of the defendant, although such identification by the victim is not a necessary or vital issue in this case.

Of great significance, however, is Mrs. Henrich's testimony that she knew Gary Comstock, the man taken into custody with the defendant. Comstock and his family had lived next-door to her for a number of years.

Mrs. Henrich testified positively and unequivocally that when she went to her neighbor's house for help that all the doors in her house were closed.

Three police officers responded to the dispatch and approached Mrs. Henrich's home through the alley. They found the back door open and Officer Crosby testified that there was only one dim light on in the house. From the door, however, he could observe two silhouettes of persons on the first floor of the house. Crosby illuminated these two silhouettes with his flashlight and found that he knew one of them, whose name was Gary Comstock. Comstock was emptying "stuff" on the floor and his companion was going through it. Before the officers entered, they identified themselves as police officers. The men then ran into a darker portion of the house. Upon entry, Officer Wranich found the defendant hiding behind a table in the front room of the house and placed him under arrest.

Officers Crosby and Burkes proceeded to the second floor and discovered Comstock in the back stairwell; a fight or struggle followed down the stairs; and Comstock was subdued and placed under arrest. Both the defendant and Comstock were taken to police headquarters in the "paddy wagon" by other officers. Crosby and Burkes then reentered the Henrich home and found currency scattered on the back stairs and second floor. At the head of the stairs they found a Kleenex box. They also examined the back door and frame and found that the wood door panels were "pushed out and splintered" and the door casing was less severely splintered.

The defendant testified in his own behalf. He stated on the subject pertinent to this present inquiry that on January 31, 1978, he was sitting in a car parked on Belleview with a girl acquaintance named Pam. While they were seated in his car, he saw a woman come out on the porch yelling for help. Pam left and the defendant went up to Mrs. Henrich, who told him there were prowlers in her home. He told her to call the police and she headed up the street.

Defendant then testified he went up on the Henrich porch and found the front door locked; he then proceeded to the back of the house, found the back door open, and then stepped inside the house. He thought he heard some noise upstairs, looked through the downstairs and while in the process the police arrived and he...