State v. Pruett, Nos. 55774
| Decision Date | 19 March 1991 |
| Docket Number | 58239,Nos. 55774 |
| Citation | 805 S.W.2d 724 |
| Parties | STATE of Missouri, Respondent, v. Jerry PRUETT, Appellant. Jerry PRUETT, Movant-Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Melinda K. Pendergraph, St. Louis, for appellant.
William L. Webster, Atty. Gen., Andrea K. Spillars, Asst. Atty. Gen., Jefferson City, for respondent.
The state charged Jerry Pruett with the class C Felony of stealing in violation of § 570.030 RSMo 1986. The evidence supported a guilty verdict that defendant acting with Donna Reitmeyer and John Coats shoplifted $195.95 worth of merchandise from Sears Roebuck and Company on October 6, 1987. On direct appeal defendant claims he was entitled to an offered instruction of stealing property having a value of less than $150. Defendant does not contest the $65.96 value of cloth goods taken or a $129.99 telephone which was also taken. Rather, he claims the facts support a verdict that he participated only in the stealing of the cloth goods. The trial court rejected defendant's offer of a lesser included offense instruction on the basis the stealing activities were one crime and the state's evidence proved property exceeding the value of $150 was taken. We agree.
Before addressing the issue presented on direct appeal, we dispose of defendant-movant's claim the motion court erred in denying Rule 29.15 relief because post conviction counsel was ineffective. This claim is not cognizable under the rule. Sloan v. State, 779 S.W.2d 580 (Mo. banc 1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1537, 108 L.Ed.2d 776 (1990).
Section 556.046.1 RSMo 1986 provides:
1. A defendant may be convicted of an offense included in an offense charged in the indictment or information. An offense is so included when
(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(2) It is specifically denominated by statute as a lesser degree of the offense charged; or
(3) It consists of an attempt to commit the offense charged or to commit an offense otherwise included therein.
Defendant's claim of error relies upon subsection (1). The argument depends on the theory that the jury could find from the evidence defendant acted with Reitmeyer to steal $65.96 worth of cloth goods but could reject evidence defendant acted with co-defendant Coats to steal a telephone valued at $129.99.
"The court shall not be obligated to charge the jury with respect to an included offense unless there is a basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense." Section 556.046.2 RSMo 1986. " '[A]n instruction on a lesser included offense is required only where there is evidence with probative value which could form the basis of an acquittal of the greater offense and a conviction of the lesser included offense.' " State v. Olson, 636 S.W.2d 318, 321 (Mo. banc 1982) (quoting State v. Hill, 614 S.W.2d 744, 749-50 (Mo.App.1981)). "[A] trial court should resolve all doubts upon the evidence in favor of instructing on the lower degree of the crime, leaving it to the jury to decide which of the two or more grades of an offense, if any, the defendant is guilty." State v. Ellis, 639 S.W.2d 420, 422-23 (Mo.App.1982).
Defendant does not contest the fact the state made a submissible case of the charged crime. No objection was made to the verdict directing instruction offered and given on the charged crime. The narrow issue is whether defendant was entitled to an instruction on the lesser included offense of stealing property having the value of under $150. On this issue we apply the statutory provisions to the following facts in evidence.
The facts regarding defendant's participation with Reitmeyer in first taking cloth goods having a value of approximately $66 need not be detailed because defendant concedes his participation to that extent. After those events, defendant and Reitmeyer joined co-defendant Coats at an automobile parked just outside the Sears store. Thereafter, Reitmeyer and Coats returned to the store with a shopping bag, previously taken by defendant and still containing some of the goods previously taken by defendant. Defendant, Reitmeyer and Coats went to the second floor of the Sears store. Coats removed a telephone from the shelf, "walked up to [defendant] and Reitmeyer and showed them the phone," and walked with defendant and Reitmeyer to a different department. Coats then placed the telephone inside Reitmeyer's bag. As this was done, Coats was "between five and...
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State v. Warrington, 18674
...greater offense and a conviction of the lesser included offense. State v. Olson, 636 S.W.2d 318, 322 (Mo.banc 1982); State v. Pruett, 805 S.W.2d 724, 725-26 (Mo.App.1991). Moreover, it is fundamental that the affirmative evidence relied upon must have probative value. State v. Arbuckle, 816......
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...leaving it to the jury to decide which of the two or more grades of an offense, if any, the defendant is guilty." State v. Pruett, 805 S.W.2d 724, 726 (Mo.App.1991). Questions of the credibility of witnesses and the effects of conflicts or inconsistencies in the testimony of any witness are......
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State v. Hofmann, WD
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State v. Branyon
...appellant NOT guilty of the higher offense AND guilty of the lesser." Id. at 321 (emphasis original). This court, in State v. Pruett, 805 S.W.2d 724 (Mo.App. E.D.1991), discussed a claimed error of failure to give a lesser included misdemeanor stealing instruction. In Pruett, this court obs......