State v. Pettit, 49957

• Decision Date: 14 October 1986
• Docket Number: No. 49957,49957
• Citation: 719 S.W.2d 474
• Parties: STATE of Missouri, Respondent, v. Gregory Michael PETTIT, Appellant.
• Court: Missouri Court of Appeals

Page 474

719 S.W.2d 474

STATE of Missouri, Respondent, v. Gregory Michael PETTIT, Appellant.

No. 49957.

Missouri Court of Appeals,

Eastern District,

Division Two.

Oct. 14, 1986.

Motion for Transfer to Supreme Court Denied Nov. 18, 1986.

Claude Hanks, Private Atty., St. Louis, for appellant.

John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.

DOWD, Judge.

Defendant appeals from his conviction of robbery in the first degree, burglary in the first degree, and armed criminal action.

As the sufficiency of the evidence is not at issue, a brief review of the facts is in order. In the early morning hours of May 26, 1984, the victim and her fiance were awakened from their sleep by voices in their bedroom. The bedroom was illuminated by light from the living room and hallway and also from flashlights carried by the intruders. By looking in the mirrored closet doors, the victim was able to see two men standing in the bedroom doorway. She described one as tall and the other as short and stocky.

The intruders announced a robbery and the short and stocky man forced the victim at gunpoint into the bathroom. He ordered her into the bathtub and bound her wrists with electrical tape. The short and stocky intruder spoke to the victim for some time, telling her how he had been watching her movements for a week. All the while, the victim could hear her house being ransacked. The whole ordeal lasted approximately thirty minutes. The victim telephoned police immediately after the incident and gave them a description of the short and stocky intruder's clothing, hair, and physical build, but could not describe his facial features as he wore a nylon stocking over his head.

Defendant, who matched the victim's description of the short and stocky intruder, was apprehended fleeing the area within twenty minutes after the incident. He was immediately returned to the scene of the crime for identification where he was shown to the victim in the light from the squad car headlights and a nearby street light. The victim positively identified defendant from the neck down based on his physical build, clothing, and in particular by his white high-top tennis shoes.

Defendant was subsequently convicted and sentenced to ten years on the robbery count, and five years each on the burglary and armed criminal action counts. The sentences are to run consecutively. We affirm.

Defendant's first allegation of error challenges instruction number nine, the instruction for armed criminal action, MAI-CR 2d 25.02, as an unfair comment upon evidence not adduced at trial. Defendant failed to include the instruction in the argument portion of his brief as required by Rule 30.06(e) and thus the point is not preserved for appellate review. State v. Money, 697 S.W.2d 269, 271 (Mo.App.1985); State v. Williams, 674 S.W.2d 46, 48 (Mo.App.1984). Defendant argues there was a lack of evidence regarding a "deadly weapon." Even had defendant complied with the rules, we would find no error as the victim identified defendant as the one who held the gun during the incident. A gun is considered a dangerous weapon in and of itself without proof that it was loaded and operable. State v. Chunn, 641 S.W.2d 829, 830 (Mo.App.1982).

In his second point, defendant contends the trial court committed error in allowing a police officer to testify as to how he discovered a broken window in the basement of the victim's residence. Defendant asserts testimony by the officer that the victim's son told him he found a broken window was inadmissible hearsay.

"Hearsay evidence is in-court testimony of an extrajudicial statement offered to prove the truth of the matters asserted therein." State v. Harris, 620 S.W.2d 349, 355 (Mo. banc 1981). The testimony at issue was not offered to prove the truth of the statement, but rather to explain the officer's subsequent conduct, his investigation of the basement windowsill where he found broken glass stained with blood. It is well established that testimony offered to explain conduct, rather than to prove the truth of the facts testified to is not inadmissible hearsay. State v. Brooks, 618 S.W.2d 22, 25 (Mo. banc 1981); State v. Clay, 686 S.W.2d 516, 518 (Mo.App.1985).

We perceive defendant's third point to contend he was subjected to double jeopardy by being convicted of both first degree robbery and burglary in the first degree in that the convictions were based on identical evidence. The test as to whether a defendant has been placed in double jeopardy is whether each offense necessitates proof of a fact which the other does not. State v. Charles, 612 S.W.2d 778, 781 (Mo. banc 1981), cert. denied, 454 U.S. 972, 102 S.Ct. 522, 70 L.Ed.2d 392 (1981) (citing Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932)).

First degree robbery and burglary in the first degree require proof of distinct elements. First degree robbery requires a forcible theft while first degree burglary requires a knowingly unlawful entry into, or stay in, a building. State v. Coats, 668 S.W.2d 119, 120 (Mo.App.1984). The fact that there is some overlapping evidence that supports the convictions for both offenses does not violate the prohibition against double jeopardy. State v. Murray, 630 S.W.2d 577, 582 (Mo. banc 1982). We find defendant was not convicted of both offenses on identical evidence as there was sufficient evidence in the record to support the distinct elements of each offense.

In his final point on appeal, defendant alleges the trial court erred in refusing to grant his motion for new trial or judgment notwithstanding the verdict...