State v. Pulis, 17289

• Decision Date: 08 January 1992
• Docket Number: No. 17289,17289
• Citation: 822 S.W.2d 541
• Parties: STATE of Missouri, Respondent, v. Francis Guy PULIS, Appellant.
• Court: Missouri Court of Appeals

Page 541

822 S.W.2d 541

STATE of Missouri, Respondent, v. Francis Guy PULIS, Appellant.

No. 17289.

Missouri Court of Appeals,

Southern District,

Division One.

Jan. 8, 1992.

Jim McNabb, Marshfield, for appellant.

William L. Webster, Atty. Gen., Robin H. Grissom, Asst. Atty. Gen., Jefferson City, for respondent.

CROW, Judge.

Francis Guy Pulis ("Defendant"), tried as a persistent offender, was found guilty by a jury of an attempt, § 564.011, ¹ to commit burglary in the second degree, § 569.170, and sentenced by the trial court to three years' imprisonment.

Defendant appeals, claiming (1) the evidence failed to show he attempted to enter a "building," and (2) the trial court erred in receiving evidence that Defendant refused to respond when the arresting officer asked why he ran from the scene of the alleged crime. We synopsize only the evidence pertinent to those contentions.

On May 12, 1989, the Greene County Farmer's Sales Association was occupying a building at the corner of Lyon Avenue and Commercial Street in Springfield, where it sold feed, fertilizer and farm supplies at retail. Attached to the west side of the building was a "greenhouse" containing plants and flowers which the Association sold each spring. The greenhouse was the site of Defendant's alleged attempted burglary. A photograph of the greenhouse, received in evidence as State's Exhibit 2, appears at the end of this opinion.

The Association's general manager testified the greenhouse was erected annually about the last of March and disassembled the last of June. It is constructed of "two-by-fours with poultry netting stretched over it and then a six-mil clear plastic was put over that." The manager explained, "[W]e bolt it into the main building with two-by-fours." According to the manager, the greenhouse is 20 feet wide (the east/west dimension) and 35 feet long (the north/south dimension). The manager added, "[O]n the north side we had a door, and we lock it from the inside with a bolt and pin, and then on the south side door ... we had a ... normal lock ... just an outside lock." The manager's testimony continued:

Q ... as far as selling the plants, where was the cash register located on where you sold the plants out of this greenhouse?

A In the main part of the store.

Q Okay, what was the procedure on if somebody wanted to buy a plant, did they come into the main part and pay for it?

A Get a ticket and then one of the boys in the back got their plants for them in the greenhouse.

About 9:00 p.m., May 12, 1989, Corporal Lori Everett of the Springfield Police Department was patrolling in an unmarked vehicle near the Association's place of business. She noticed Defendant near the greenhouse. He saw her, altered his direction, and proceeded south to Commercial Street.

Everett remained in the area. Within a short time, she exited her vehicle and went to the north door of the greenhouse. It was locked, and the plastic and wire were intact.

Everett continued to maintain surveillance in her vehicle. Eventually, she saw Defendant run to the north door of the greenhouse. She testified, "As soon as he got to the north door he dropped to his knees and started fumbling, it looked liked [sic] he was prying on the door."

Everett radioed for additional officers, then drove toward Defendant. He "stood up, looked at the car and took off running south out of the lot." Everett pursued in her vehicle.

Other officers joined the chase. Defendant was swiftly apprehended by Patrolman Mike Owen.

Immediately after Defendant was caught, Everett returned to the greenhouse. The plastic in the north door was down and the wire had been cut.

Defendant's first point relied on avers the trial court should have granted Defendant's motion for judgment of acquittal at the close of the evidence because the greenhouse was not a "building" within the meaning of § 569.170. That section reads:

1. A person commits the crime of burglary in the second degree when he knowingly enters unlawfully ... in a building or inhabitable structure for the purpose of committing a crime therein.

2. ....

Section 569.010 defines various terms used in chapter 569. "Building" is not defined. However, "inhabitable structure" is defined. Section 569.010(2) reads:

"Inhabitable structure" includes a ship, trailer, sleeping car, airplane, or other vehicle or structure:

(a) Where any person ... carries on business or other calling; ...

(b) ....

(c) ... Any such vehicle or structure is "inhabitable" regardless of whether a person is actually present[.]

Defendant maintains: "The thing called a greenhouse in this case which was bolted on the side of [the] Association's main building was not a building. It was an insubstantial assemblage of two by fours, clear plastic, and chicken wire. It was thrown up and torn down.... There is no connection to the soil, no foundation and, finally, no walls or roof."

Obviously, the greenhouse had no shingled roof. However, a part-time employee of the Association described the greenhouse thus: "[I]t's ... two-by-four rafters up there and there was poultry netting on top and on the side with plastic, clear plastic, over that poultry netting." This testimony indicates the greenhouse was covered by a roof of the same type construction as the walls and doors--two-by-fours supporting poultry wire covered by plastic. State's Exhibit 2 (infra ) appears to confirm this.

Defendant cites one Missouri case in support of his first point, State v. Scilagyi, 579 S.W.2d 814 (Mo.App.1979). There, a jury found the accused guilty of burglary in the second degree in violation of § 560.070, RSMo 1969 (repealed effective January 1, 1979, by "The Criminal Code," Laws of Missouri 1977, S.B. 60, § 1, pp. 662-63 and § A, p. 718). ² The site of the alleged burglary was a "40-foot semi-trailer" used as a carnival office. It was on wheels, enabling it to be moved from place to place with the carnival.

The appellate court declared the conviction could stand only if the trailer was a "building" within the meaning of § 560.070, RSMo 1969. The court examined a dictionary definition of "building," noting one characteristic was construction designed to stand more or less permanently, covering a space of land, as distinguished from a structure not intended for use in one place. The opinion reasoned that the General Assembly, by specifically including boats, vessels, railroad cars, tents and booths in § 560.070, did not consider such "removable structures or instrumentalities" as falling within the generic term "building." Emphasizing the mobility of the semi-trailer and its lack of a permanent location, Scilagyi held it was not a "building" within the meaning of § 560.070, RSMo 1969.

Scilagyi distinguished State v. Ryun, 549 S.W.2d 141 (Mo.App.1977), which upheld a conviction of burglarizing a mobile home that had remained stationary three years, had been "skirted" from floor to ground to block drafts, and was connected to an electric power line. Scilagyi explained:

This case is distinguishable from ... Ryun ... on the basis of the modification of the structure there involved, designed to make its location to some extent permanent and the fact that it had been located for three years at one location and used as the sole dwelling place of its residents.

579 S.W.2d at 819.

In the instant case, the greenhouse was situated at the same address each time it was assembled, and it remained stationary until dismantled. It did not travel from place to place like the semi-trailer in Scilagyi. Instead, the greenhouse had a fixed location, as did the mobile home in Ryun. It is thus arguable that the instant case is factually closer to Ryun than to Scilagyi.

However, we need not resolve that issue. In State v. Gully, 716 S.W.2d 892 (Mo.App.1986), this Court pointed out that the General Assembly, in enacting § 569.170 and the other burglary related statutes effective January 1, 1979, added the term "inhabitable structure" (as statutorily defined) with the specific intent to broaden the objects of forcible entry which would trigger the applicability of such statutes. 716 S.W.2d at 894.

Inasmuch as burglary in the second degree as proscribed by § 569.170 can be committed by unlawfully entering either a building or an inhabitable structure, we need not determine whether the greenhouse was a "building" if it meets the statutory definition of "inhabitable structure." The latter term, as we have seen, is defined by § 569.010(2)(a) as including a structure where any person carries on business. Such a structure is "inhabitable" regardless of whether a person is actually present. § 569.010(2)(c).

There was uncontradicted evidence that the Association engaged in the business of selling plants and flowers at the greenhouse. Consequently, the greenhouse meets the statutory definition of "inhabitable."

The term "structure" is not defined in chapter 569. We must therefore accord that term its plain and ordinary meaning. State v. Burnau, 642 S.W.2d 621, 623 (Mo.banc 1982).

"Structure" is defined in Webster's Third New International Dictionary of the English Language (Merriam-Webster Inc. 1986) as "something constructed or built" or "something made up of more or less interdependent elements or parts."

The greenhouse was constructed of wooden two-by-fours, poultry wire and plastic sheeting. Its doors were capable of being locked. The Association's part-time employee testified it was the normal practice to lock them "so people wouldn't ... go in and pick up stuff." As best we can determine from State's Exhibit 2, a paved surface (apparently a driveway or parking area) served as the greenhouse floor. Although the greenhouse was not built to last indefinitely or withstand harsh weather, once assembled and anchored to the main building it was immovable until dismantled.

In State v. Murray, 630 S.W.2d 577 (Mo. banc 1982), the accused was convicted of burglary in the second degree by unlawfully entering...