State v. Potter, 10047

• Decision Date: 13 November 1975
• Docket Number: No. 10047,10047
• Citation: 530 S.W.2d 268
• Parties: STATE of Missouri, Respondent, v. Wyman O'Neal POTTER, Appellant.
• Court: Missouri Court of Appeals

Page 268

530 S.W.2d 268

STATE of Missouri, Respondent, v. Wyman O'Neal POTTER, Appellant.

No. 10047.

Missouri Court of Appeals, Springfield District.

Nov. 13, 1975.

John C. Danforth, Atty. Gen., Sheila Hyatt, Asst. Atty. Gen., Jefferson City, for respondent.

James R. Reynolds, Ford, Ford, Crow & Reynolds, Kennett, for appellant.

Before BILLINGS, C.J., and STONE and TITUS, JJ.

TITUS, Judge.

A jury convicted defendant of second degree burglary (§ 560.045) ¹ and stealing (§ 560.156), and fixed his punishment at two years' imprisonment for each offense. §§ 560.095(2) and 560.110, subd. 1. In pronouncing sentence, the court fixed the terms to run consecutively. § 560.110, subd. 2. Defendant has appealed.

Defendant says the evidence was not enough to sustain the conviction. Although defendant properly preserved this point for appellate review, we would, nevertheless, be bound to recognize it for if the evidence be insufficient to sustain the conviction, plain error affecting substantial rights is involved from which manifest injustice must have resulted. State v. White, 439 S.W.2d 752, 753(2) (Mo.1969); State v. McClunie, 438 S.W.2d 267, 268(2) (Mo.1969); State v. Alderman, 500 S.W.2d 35, 36(1) (Mo.App.1973); Rule 27.20(c).

To determine if the evidence was enough to sustain the conviction, we accept all as true which tends to prove defendant's guilt (State v. Chase, 444 S.W.2d 398, 401(1) (Mo. banc 1969)), and indulge all reasonable inferences favorable to the state (State v. Davis, 516 S.W.2d 784, 785(3) (Mo.App.1974)), bearing in mind that in a cause such as this where the conviction depends upon circumstantial evidence, the circumstances must be consistent with each other, must tend to prove guilt, and not only must be consistent with the hypothesis of the guilt of the defendant, but must be inconsistent with every other reasonable hypothesis including the hypothesis of defendant's innocence. State v. Cox, 527 S.W. 448, 452(3) (Mo.App.1975); State v. Eye, 492 S.W.2d 166, 167--168(2) (Mo.App.1973); MAI-CR 3.42.

C. L. Watson resided 3 1/2 miles southwest of Senath, Dunklin County, Missouri. At 7:45 p.m. September 11, 1974, he departed the house and returned at 9:15 p.m. to find his home had been forcibly entered and ransacked. The rear glass storm door was broken and the back door had been forced open. A safe, weighing 80 to 100 pounds and containing $800, was missing. Watson notified the authorities and they responded.

A deputy sheriff found 'a large piece of jagged glass' on the back porch which had 'what appeared to be blood' on it. There was no blood inside the house, but 'the next morning . . . in the daylight' blood spots were discovered on the graveled driveway at the Watson home.

The next morning, or perhaps the night of the burglary (the record is not clear), tire marks were observed adjacent to the Watson driveway which indicated a U-turn had been made by a vehicle on which were mounted three 'regular type tires' and one 'mud and snow tire.' In tracking the tire marks, they led to the Coldwater vicinity, some 6 miles southeast of Watson's home, ² before being lost when the vehicle traveled onto pavement. Someplace near the tire marks in the Coldwater area, a jewelry box (contents unknown) was discovered the day following the burglary. Watson had not missed the box prior to its discovery.

On the night of the burglary the authorities asked area hospitals to notify them should anyone appear for treatment of a laceration. Responding to a call from the Hayti Hospital (in Pemiscot County about 32 miles from the Watson residence), officers arrived at the hospital about 10:30 p.m. Defendant was in the emergency room with his right hand bandaged as part of the treatment given because of a laceration to the dorsal surface thereof. Outside in the hospital parking lot and waiting for defendant, were Loal Joiner and two lady companions. They were in a Buick automobile owned by Joiner's mother. The Buick was equipped with three regular tires and one mud and snow tire. Defendant gave his permission for a blood sample to be taken from him; Joiner gave the authorities permission to search the vehicle.

In a search of the automobile by several officers, some bloody newspapers were found in the rear seat and a punch was seen lying under the front seat. The newspapers were removed; the punch was not. Nothing was found inside the trunk of the car. The Buick was towed to a storage lot in Kennett. Defendant and Joiner were arrested; their women companions were not. When defendant was arrested he had 8 cents in his pockets. The amount of money, if any, possessed by Joiner or the two women at the time, was never revealed.

One Franklin McDaniel, who had disappeared from the area by trial time, found the stolen safe in Ditch 6 about 6 miles southwest of Hayti the afternoon of September 17. It had been opened. This discovery prompted another search of the Buick and this time, in the trunk, the officers reported finding some 'white material.' The punch was also then removed from the car. About two weeks after the burglary, the officials delivered to a criminologist the blood sample taken from the defendant the night of the burglary, the bloody newspapers, bloody glass found at the Watson residence, the punch found in the car, the 'white material' taken from the Buick's trunk, and a sample of insulation obtained from the safe. The criminologist, a state's witness, testified it was 'highly probable' that the 'white material' found in the car trunk and the sample taken from the safe had 'a common origin,' that they had 'a plaster or gypsum like composition' and 'a similar appearance' to 'plaster that might come off a wall or concrete that might be on a sidewalk or on a street.' Analysis of the blood items given the criminologist produced 'a weak A-type.' The expert stated the blood items had not been kept in the approved manner and the 'possibility is that if in the case of an old reactor, I could have, due to a bacterial combination, received a weak A reaction with no (type) O reaction.' It was stipulated that defendant's blood type was 'O-Positive.' 'The stain material upon the punch turned out to be rust.' No fingerprint analysis was undertaken and no effort was made to match the...