State v. Olten

• Decision Date: 23 November 2010
• Docket Number: Nos. WD 71482, WD 71483.,s. WD 71482, WD 71483.
• Citation: 326 S.W.3d 137
• Parties: STATE of Missouri, Respondent, v. Dale S. OLTEN, Jr., Appellant.
• Court: Missouri Court of Appeals

326 S.W.3d 137

STATE of Missouri, Respondent,

v.Dale S. OLTEN, Jr., Appellant.

Nos. WD 71482, WD 71483.

Missouri Court of Appeals, Western District.

Nov. 23, 2010.

Margaret M. Johnston, Assistant State Public Defender, Columbia, MO, for Appellant.

Chris Koster, Attorney General, Jamie Pamela Rasmussen, Assistant Attorney General, Jefferson City, MO, for Respondent.

Before Division II: JAMES EDWARD WELSH, Presiding Judge, and MARK D. PFEIFFER and KAREN KING MITCHELL, Judges.

MARK D. PFEIFFER, Judge.

Following a jury trial in the Circuit Court of Cole County ("trial court"), Dale Olten, Jr. ("Olten"), was convicted on one count of burglary in the first degree, § 569.160,¹ and one count of burglary in the second degree, § 569.170, and was sentenced to two concurrent seven-year prison sentences. Olten appeals his conviction of burglary in the first degree, contending that the trial court erred in overruling his motion for judgment of acquittal, as he claims the State failed to prove beyond a reasonable doubt that Olten or Jesse Patterson ("Patterson") were "armed" with a deadly weapon during their flight from the burglary. Olten asks this court to reverse his conviction for burglary in the first degree and impose a conviction for burglary in the second degree. We reject Olten's argument on appeal and affirm the judgment below.

Factual and Procedural Background

Viewing the record in the light most favorable to the jury's verdict,² the following evidence was established at trial:

On January 16, 2009, Olten, Patterson, and a man named Jeremy went to a home ³ on Route N in Cole County with the intent to burglarize the residence. Olten and Jeremy broke glass out of a basement door and entered the home. Once all three men were inside, Olten went to a closet where he found an AR-15 rifle and a Glock pistol, Patterson located a flat-screen television, and Jeremy rummaged through jewelry. Olten and Jeremy carried the guns and jewelry to the car before returning inside to help Patterson remove the television. In all, the three men stole several items from the home, including a laptop, a camera, an M-4 rifle, two holsters, magazines for the weapons, and ammunition. After the burglary, the three men took the stolenitems back to the home of Olten's father.

On February 27, 2009, officers from both Cole and Miller Counties received word of a suspicious vehicle parked in front of a home ⁴ near the border between Cole and Miller Counties. The car fit the description of a vehicle for which the officers were looking. Before the deputies could arrive, witnesses saw two men run from the house. When officers arrived, they found two driver's licenses in the car, one belonging to Olten and another to Patterson. A search for the men promptly ensued. Patterson was eventually apprehended and taken in for questioning regarding the burglaries.

Patterson admitted that he, Olten, and Olten's father had burglarized the Cotton home. Based on this information, officers secured a search warrant for Olten's father's home. During that search, officers recovered items that had been stolen from the Delgado burglary in January. A few days later, officers located both Olten and his father hiding out in an apartment in Russellville, Missouri.

Olten was arrested and charged with burglary in the first degree for the burglary of the Delgado home and burglary in the second degree for the burglary of the Cotton home. By agreement, the two Cole County circuit cases were consolidated for trial.⁵ At the close of the evidence, the trial court overruled Olten's motion for acquittal. Subsequently, the jury found Olten guilty on both counts. The trial court denied Olten's motion for a new trial and sentenced him to two concurrent seven-year prison terms. This timely appeal follows.⁶

Standard of Review

Upon a challenge to the trial court's denial of a motion for acquittal, we review to determine if the State presented sufficient evidence from which a reasonable juror may have found the defendant guilty beyond a reasonable doubt. State v. Crews, 968 S.W.2d 763, 765 (Mo.App. E.D.1998) (citing State v. Grim, 854 S.W.2d 403, 405 (Mo. banc), cert. denied, 510 U.S. 997, 114 S.Ct. 562, 126 L.Ed.2d 462 (1993)). In determining whether the evidence is sufficient to support a conviction, we accept as true all evidence and inferences in a light most favorable to the verdict and disregard all evidence and inferences to the contrary. State v. Sales, 255 S.W.3d 565, 566-67 (Mo.App. S.D.2008) (quoting State v. Granger, 966 S.W.2d 27, 29 (Mo.App. E.D.1998)). However, this court "may 'not supply missing evidence or give the [State] the benefit of unreasonable, speculative or forced inferences.' " State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001) (quoting Bauby v. Lake, 995 S.W.2d 10, 13 n. 1 (Mo.App. E.D.1999)).

Analysis

"[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt ofevery fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). It is the State's burden to prove every element of the crime beyond a reasonable doubt. State v. Seeler, 316 S.W.3d 920, 925 (Mo. banc 2010). To prove burglary in the first degree, the State must establish that the defendant:

knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein, and when in effecting entry or while in the building or inhabitable structure or in immediate flight therefrom, he or another participant in the crime:

(1) Is armed with explosives or a deadly weapon or;

(2) Causes or threatens immediate physical injury to any person who is not a participant in the crime; or

(3) There is present in the structure another person who is not a participant in the crime.

§ 569.160.1 (emphasis added).

Olten argues that the trial court erred in overruling his motion for acquittal at the close of evidence and his motion for a new trial because the State failed to prove beyond a reasonable doubt that Olten or Patterson was "armed" with a deadly weapon under section 569.160. Olten contends that mere possession of a stolen gun cannot satisfy the "armed with a deadly weapon" requirement of section 569.160; thus, the State failed to present sufficient evidence to secure a conviction of Olten under the first-degree burglary statute. Olten further alleges that even if mere possession can constitute "armed with a deadly weapon" under section 569.160, there is still insufficient evidence to prove he or Patterson actually carried the weapons to the car, which the verdict director specifically required.⁷ Olten claims that Patterson's testimony only established that the weapons were removed from the Delgado home. It does not indicate how or by whom the guns were taken out of the home.

Armed with a Deadly Weapon

Olten contends that mere possession of a stolen gun cannot constitute "armed with a deadly weapon," within the meaning of section 569.160. He attempts to avoid the application of Missouri law by arguing that two Missouri cases, which held that stealing a firearm can be used to enhance a burglary conviction, were wrongly decided because they do not strictly construe the statute against the State.

The first case Olten asks us to disregard is State v. Crews, 968 S.W.2d 763 (Mo.App. E.D.1998). In Crews, the court held that a criminal defendant was considered "armedwith a deadly weapon," under section 569.160.1, when he unlawfully entered the victim's home and took possession of the victim's loaded rifle with the purpose of stealing it. Id. at 766. The defendant argued that the "legislature intended the term 'armed' in section 569.160(1) to mean more than stealing a firearm during a burglary." Id. at 765. To determine the legislature's intent, the court used the plain language of the statute and held that under the plain and ordinary meaning "a person is 'armed' when he equips himself with a weapon for the purpose of stealing it." Id. at 765-66.

The second case Olten asks us to disregard is State v. Sales, 255 S.W.3d 565 (Mo.App. S.D.2008). In Sales, the defendant and his accomplices stole firearms during a burglary. The court agreed with Crews and applied the rule that defendant was "armed" with a deadly weapon when he stole firearms during the burglary and the State presented sufficient evidence to demonstrate that the defendant or another participant in the break-in stole firearms. Id. at 568. The court reasoned that "[i]ncreasing the penalty for a burglary involving the theft of a firearm comport[ed] with the purpose of lessening the risk of putting innocent people in harm's way during that burglary." Id. at 571.

Olten argues that the analysis under Crews and Sales would allow a conviction of burglary in the first degree from the mere possession of a deadly weapon stolen during the course of the burglary. He claims that if the legislature had intended such a broad interpretation, then it would have used the word "possessed" rather than "armed." Olten insists the word "armed" be interpreted to mean that the burglars used the weapon either to gain entry or to aid in flight. Olten cites a myriad of case law from various jurisdictions in support of his argument.⁸ We, however, find Olten's arguments unpersuasive because the courts in Crews and Sales properly construed and applied section 569.160.⁹

The primary goal of statutory construction is to "give effect to legislative intent as reflected in the plain language of the statute." State v. Moore, 303 S.W.3d 515, 520 (Mo. banc 2010) (citing State v. Salazar, 236 S.W.3d 644, 646 (Mo. banc 2007)). If the plain language of the statute is ambiguous, the statute must be construed in favor of the defendant. Winfrey v. State, 242 S.W.3d 723, 725 (Mo. banc 2008). However, this is only true if all other judicial canons of construction have been exhausted. Denbow v. State, 309 S.W.3d 831, 834 (Mo.App....