State v. Norris
| Decision Date | 13 February 1979 |
| Docket Number | No. 10422,10422 |
| Citation | 577 S.W.2d 941 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Kenneth G. NORRIS, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
John D. Ashcroft, Atty. Gen., Weldon P. Perry, Jr., Steven Steinhilber, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
Robert P. Baker, Sarcoxie, for defendant-appellant.
The defendant was charged under the Second Offender Act with burglary in entering the premises of J. W. Jones and stealing a welder the property of Clyde R. Jones. The Second Offender Act, § 556.280 RSMo 1969, was found to be applicable. Upon a verdict of guilty the trial court assessed defendant's punishment at five years imprisonment for burglary and five years imprisonment for stealing. The sentences are to run concurrently. Defendant appeals.
Defendant has presented five points for review. At the outset, we note that the motion for new trial was filed on the thirty-second day after the verdict. Following the verdict the defendant requested thirty additional days for filing his motion. The trial court granted thirty days. This was not expressly stated to be thirty days in addition to the ten days provided by Rule 27.20. However, the state makes no assertion of a late filing. The motion was filed within the time that could have been granted by the trial court. The trial court heard and determined the motion apparently construing its order to mean thirty additional days. We see no reason to otherwise construe the record. State v. Smith, 518 S.W.2d 665 (Mo.App.1975).
Even though the defendant offered no evidence but stood on his motion for acquittal, the evidence will be considered most favorably to the state, with all reasonable inferences therefrom and we do not believe that State v. Truster, 334 S.W.2d 104 (Mo.1960) cited by defendant requires us to do otherwise. State v. Franco, 544 S.W.2d 533 (Mo.banc 1976); State v. Colthorp, 437 S.W.2d 75 (Mo.1969). The defendant questions the sufficiency of the evidence to establish that he was one of two men who stole a welder from a machine shop. A review of the evidence will be primarily directed to facts bearing on that issue.
The 240 acre Jones farm is located in the southeast part of Lawrence County approximately 3/4 mile south of Highway ZZ. It is northeast from Aurora and southwest from Marionville. A county road runs north and south on the east side of the Jones farm. There are two sets of improvements. Son, Clyde R. Jones, lived at the north set at which there was located a large barn and machine shed.
On the day in question, J. W. Jones was going to see a nearby neighbor. His route to the neighbor's home was 3/4 mile north on the county road, a right (east) turn on Highway ZZ and then about 3/4 mile east to the neighbor's. He left home a few minutes before 4:00 p. m. At the intersection of the county road and Highway ZZ he met an automobile coming from the west, which was a 1954 Chevrolet, blue in color with a light top. The Chevrolet turned south on the county road toward the Jones farm just as Jones turned east on Highway ZZ. Jones briefly observed the driver and a passenger.
Upon arriving at the neighbor's, Jones saw that the neighbor's pickup was not there. Jones concluded the neighbor was not at home, turned around and started back to his home. Upon approaching, Jones saw the Chevrolet parked in front of the machine shed, backed up to big double doors. The trunk was open. He saw a man in the driver's seat and another at the rear of the car. The man outside tossed something in the trunk and got in "real fast". As the automobile was leaving when Jones drove in the machine shop lot, Jones determined to try and mark it with his truck. He put his truck in reverse and scraped the right side of the Chevrolet. After the vehicles disengaged, Jones turned around and chased the Chevrolet north on the county road to a point one-half mile north of Highway ZZ. He got the license number on the Chevrolet which was PZ2-032.
From his brief observation at the intersection and upon approaching the machine shed, J. W. Jones described the passenger as a man having a full beard about an inch long, ungroomed, almost Afro style hair, wearing dark clothing but no hat. The driver was described as having a light beard, hair not as long as the passenger but probably collar length, wearing a light weight stocking cap or cap of some kind. The passenger appeared to be taller than the driver, although neither was a large man. Jones could not identify defendant as one of the two men at the machine shop.
Upon returning to his farm, Jones found the lock on a small door on the south side of the machine shed had been forced open and a welder owned by Clyde R. Jones kept in the shed was missing. A black low-cut men's oxford shoe was found in front of the shed.
Helen Walters lived in the western part of Christian County approximately 11/2 miles north and 41/2 miles east of the Jones farm. She had known the defendant for approximately 20 years. On the day in question the defendant came to her house between 4:00 and 4:30 p. m. She observed an older, middle 50's, car. Her son, who saw the defendant after being awakened, estimated the time as 3:30 p. m. As the defendant walked toward the house Mrs. Walters, who didn't see too well, didn't recognize him at first because of his long hair and the fact he had on a little round hat with a brim, a camouflage hat, pulled down over his ears. He did not have a beard. Defendant asked to use the phone to call his wife and was permitted to do so. He told her to bring his shoes and come and get him and he gave her directions. Helen Walters saw he was wearing only one shoe. Later, a car drove up and defendant and a man from the older car got in and left.
At about 5:00 p. m. Lawrence County Investigator Tatum was going from Aurora to search for the Chevrolet automobile. On leaving Aurora he saw Mrs. Norris driving a blue Buick west on U. S. Business Route 60 entering Aurora from the east. Defendant, who he observed had shoulder length hair, and a man with a beard, Ralph Scott, Jr., were her passengers.
Officer Ellis, who was parked at the intersection of business Route 60 and Elliott, saw the Norris blue Buick come from the east and turn south toward the Norris home on Elliott. He identified Mrs. Norris, defendant and Ralph Scott, Jr. Defendant had hair to his shoulders, but no beard as such. Between 5:00 and 5:30 p. m. Stockton saw three people walking into the Norris house. Defendant had long hair but no beard, but he couldn't see if he was clean shaven.
Ralph Scott, Jr. lived almost directly across the street from the defendant. The Chevrolet was licensed to him. It had been seen in Norris' yard two days before the incident. Scott and defendant had been observed in the Chevrolet with Norris driving.
About 6:00 p. m. Tatum located the Chevrolet at the Walters' residence and it was taken by the Sheriff of Christian County to Ozark. The next day, under the authority of a search warrant, the trunk was pried open. The missing welder was in the trunk.
The first contention of the defendant to be considered is that the evidence is insufficient to support his conviction. Considering the evidence most favorably to the state, the salient facts a jury could reasonably have found from the evidence are: the defendant was an associate of Ralph Scott, Jr.; the automobile used in the theft was owned by Ralph Scott, Jr.; that automobile had been in defendant's possession and he had driven it within two days before the theft; two men within the general description of defendant and Ralph Scott, Jr. were at the scene; a man's shoe was found at the scene; within a few minutes after the theft defendant and Ralph Scott, Jr. arrived at the Walters' home in the Chevrolet with the stolen welder in the trunk; the defendant was wearing one shoe.
The defendant emphasizes that this is a circumstantial evidence case and asserts inconsistencies in the state's evidence. It is true in a circumstantial evidence case the facts and circumstances must be consistent with each other and with the hypothesis of defendant's guilt, and they must be inconsistent with his innocence and exclude every reasonable hypothesis of his innocence. State v. Franco, Supra, 544 S.W.2d 533. However, the inconsistencies asserted by defendant are not of basic facts but such things as estimates of time and physical descriptions. Such inconsistencies are for the jury. He also urges hypothetical conclusions from the evidence showing nonparticipation in the crime. However, our Supreme Court has said:
State v. Thomas, 452 S.W.2d 160, 162 (Mo.1970).
Each case of circumstantial evidence is to be considered upon its peculiar facts and circumstances. However, the cases of State v. Ross, 507 S.W.2d 348 (Mo.1974); State v. Fields, 442 S.W.2d 30 (Mo.1969); and State v. Boothe, 364 S.W.2d 569 (Mo.1963) are persuasive. We hold that the evidence meets the required tests and is sufficient to support the conviction.
The defendant claims error in the admission in evidence of the shoe because a proper chain of custody was not established. Jones testified the shoe in front of the machine shed was picked up by Deputy Morris A. Candlish. Candlish testified he marked the shoe with the initial of his first name and gave it to Investigator David Tatum on April 7, 1975. Tatum testified Candlish gave him the shoe on April 10, 1975 and had marked it by his initials. Defendant seizes upon the difference in dates as a break in the chain. The shoe...
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...prerogative. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023(2, 3) 82 L.Ed. 1461(2, 3) (1938); State v. Norris, 577 S.W.2d 941, 948(13) (Mo.App.1979). The prosecution argues that a formal plea of mental disease or defect excluding responsibility under § 552.030.2 constitutes a wai......
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