State v. Portwood, 49032
| Decision Date | 11 June 1985 |
| Docket Number | No. 49032,49032 |
| Citation | 694 S.W.2d 831 |
| Parties | STATE of Missouri, Respondent, v. Will Arthur PORTWOOD, Appellant. |
| Court | Missouri Court of Appeals |
Kathryn Shubik, St. Louis, for appellant.
John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant, Will Arthur Portwood, was convicted, after a jury trial, of burglary in the second degree. He was sentenced to six years' imprisonment. On appeal he contends the court erred in refusing to instruct the jury on trespass in the first degree as a lesser included offense of second degree burglary. We affirm.
Officer Robert Loehr of the St. Louis City Police Department was patrolling around four a.m. on September 4, 1983, when he noticed a man standing outside a liquor store next to the broken glass door of the store. Officer Loehr moved closer to investigate and saw another man inside the building. The two men noticed the officer and started to leave the premises when Officer Loehr ordered them to stop and handcuffed them.
Officer Loehr searched defendant and found more than eighteen dollars in change on his person, including six dollars worth of bicentennial quarters. The cash register was found to be empty. At trial the owner of the store testified he had removed all the bills from the cash register when he left the store, and that the register contained only change. The owner testified he had four or five dollars worth of bicentennial quarters stacked on a ledge over the drawer of the register and between twelve and fifteen dollars worth of change inside the register before the break-in. The entire amount of change, including the bicentennial quarters, was missing when police and the owner inspected the premises after the break-in.
Officer Loehr identified defendant at trial as the man he had seen inside the store and carrying the change.
The State also showed that a television set, normally kept in a small room in the store, was found near the front door. A large rock, apparently used to break the glass, was found inside the store. A case of gin, identified by the owner as having been in the store, was found outside in a nearby dumpster.
The defendant did not present any evidence.
The State concedes that first degree trespass is a lesser included offense of burglary in the second degree. State v. Neighbors, 613 S.W.2d 143, 147 (Mo.App.1980). The trial court is required to charge the jury with respect to a lesser included offense only if "there is a basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense." § 556.046.2, RSMo (1978).
To continue reading
Request your trial
-
State v. Hinsa
...degree include Vineyard, 839 S.W.2d 686; State v. Word, 829 S.W.2d 113 (Mo.App. E.D.1992); Green, 812 S.W.2d 779; State v. Portwood, 694 S.W.2d 831 (Mo.App. E.D.1985). We shall not lengthen this opinion by synopsizing the facts in those cases. The rationale we glean from them is that where ......
-
State v. Green, WD
...argues that "the evidence failed to show the appellant entered the building with the intent to commit a theft." 2 In State v. Portwood, 694 S.W.2d 831 (Mo.App.1985), the Eastern District Court of Appeals was faced with facts and an argument similar to appellant's. In Portwood, the appellant......
-
State v. Vineyard
...on trespass need not be given. State v. Green, 812 S.W.2d at 788; State v. Shelton, 770 S.W.2d 716, 717 (Mo.App.1989); State v. Portwood, 694 S.W.2d 831, 832 (Mo.App.1985). Defendant was found sleeping inside Lucille's with money and cigarettes scattered around him. A basement window was br......
-
State v. Jenkins, 52575
...v. Milligan, 645 S.W.2d at 382. First-degree trespass is a lesser included offense of burglary in the second degree. State v. Portwood, 694 S.W.2d 831, 832 (Mo.App.1985). However, it is error to fail to submit a requested lesser included offense instruction only if that offense is supported......