State v. Quisenberry
| Decision Date | 31 August 1982 |
| Docket Number | No. 63564,63564 |
| Citation | 639 S.W.2d 579 |
| Parties | STATE of Missouri, Respondent, v. James QUISENBERRY, Appellant. |
| Court | Missouri Supreme Court |
James G. Gregory, John Edward Cash, Montgomery City, for appellant.
John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
Defendant was convicted of stealing property with a value of $150 or more 1 and second degree burglary, 2 two class C felonies. Though the jury assessed punishment at one year for each offense, the trial court sentenced defendant to concurrent terms of two years for each offense. Review was sought in the Court of Appeals, Western District, which reversed and remanded both convictions, but the cause was certified here on dissent of Manford, J. It will be determined as though on original appeal.
Defendant claims the trial court erred in (1) failing to instruct the jury on the special negative defense of "claim of right", (2) admitting defendant's signed confession into evidence, even though it was transcribed from a tape recording and, allegedly, not the best evidence, and (3) sentencing defendant to prison terms in excess of those imposed by the jury.
The pertinent facts are as follows:
In late 1979, hunting partners David Hook and Raymond Bell shot approximately 15 raccoon and 3 opossum. The pelts from these animals were stored in a freezer at David Hook's Fulton, Missouri home. On December 2 of that year, Eugene (familiarly known as "Buger") Hook, David Hook's 16 year old nephew, visited his uncle and saw David Hook put the pelts in his freezer. Three days later, on the morning of December 5, Buger Hook, defendant James Quisenberry (Buger Hook's stepfather), 3 and defendant's friend Danny Neal were "riding around" Fulton in defendant's car. Danny Neal was driving. Between 11:30 a. m. and 12:15 p. m. they stopped the car near the home of David Hook; Buger got out and went into his uncle's house. Defendant and Neal remained in the car. Finding no one at home, Buger removed the pelts from the freezer, took them to the car and put them in the trunk. Buger, Danny Neal, and the defendant then drove to Mexico, Missouri, where they sold all the pelts except one to fur buyer John Gibbons for $273. Proceeds from the sale were divided as follows: $110 to defendant, $110 to Danny Neal, and $53 to Buger Hook. One pelt was left in the car, which defendant later traded to Jake Womack, his wife's stepfather, for a shotgun. Defendant was arrested and charged with second degree burglary and stealing property with a value of $150 or more. At trial, he denied complicity in the planning or commission of a theft. Although he admitted riding around with Buger and Danny Neal on the morning of December 5th, defendant claimed that for most of the morning he was asleep in the back seat of the car. Defendant testified that he was completely unaware any pelts were appropriated until he awakened in Mexico to Burger's explanation that he had taken the furs because of a debt owed to him by his uncle.
Buger Hook also testified on defendant's behalf. On direct examination, he corroborated defendant's testimony that he, Buger, alone entered David Hook's house and took the furs. According to Buger, David Hook owed him approximately $300 for hauling timber, and he took the furs believing he had a right to do so because he had not been paid. Buger testified that defendant was asleep when the pelts were taken and did not assist or participate in the taking.
Contrary to this testimony, the State introduced a typewritten statement, signed by defendant. In the statement, defendant confessed that he, Buger and Danny Neal discussed taking the furs prior to the stop at David Hook's house. Defendant also stated that in preparation for the stop, the trio went to an IGA store for a box to hold the furs; defendant and Neal then took Buger down to David Hook's house, let him out, and waited in the car until he returned with the furs. In response to the question, "[Y]ou knew when you were down there and the boy went in that these furs were stolen then?" defendant said, "Yes." The signed statement admitted in evidence was a typed transcript of a recording of an oral statement made by defendant to the police.
Defendant claims the trial court erred in failing to instruct the jury on the special negative defense of claim of right created in § 570.070:
570.070. 1. a person does not commit an offense under section 570.030 [stealing] if, at the time of the appropriation, he
(1) Acted in the honest belief that he had the right to do so; or
(2) Acted in the honest belief that the owner, if present, would have consented to the appropriation.
2. The defendant shall have the burden of injecting the issue of claim of right. (Emphasis added).
When a defendant has the "burden of injecting" an issue, the issue is not submitted to the trier of fact unless supported by evidence, § 556.051(1). Although an honest claim of right is a defense to the crime of stealing and, in certain situations, burglary, 4 we find that defendant failed to inject the issue sufficiently to justify claim of right instructions.
Defendant was convicted, not as the principal, 5 but for aiding Buger Hook in the commission of the crimes of second degree burglary and stealing property with a value of $150 or more. Accountability for the conduct of another is addressed in several sections of Missouri's criminal code. Sections 562.036 and 562.041 provide that unless a defendant has the requisite culpable mental state at the time he aids another in the commission of an offense, he cannot be convicted as an accomplice to the offense. Without the culpable mental state necessary for theft 6 and entry of a building with the intent to steal, defendant is not guilty of those offenses. Section 570.070 recognizes that a creditor who takes property from his debtor in settlement of a debt lacks the requisite mental state for stealing if he honestly believes he has a legal right to settle the debt in that manner. 7 It follows that a defendant likewise lacks the requisite mental state for stealing if he honestly believes a person he assists in taking property has a legal right to do so. Section 570.070.2 is explicit, however: The defendant who asserts a claim of right has the burden of injecting the issue 8; the issue is not submitted to the trier of fact unless supported by evidence. In this case, the defendant clearly failed to inject the issue of his own belief in a right to take David Hook's property. The State's evidence on one hand, demonstrated that defendant aided Buger Hook knowing full well the "furs were stolen." Defendant's evidence, on the other, was that he was asleep and completely unaware of any appropriation. There was no evidence by either side that the defendant assisted Buger Hook in the belief he or Buger had a right to take the pelts. The absence of such evidence justified omission of the instruction.
Defendant also contends that the trial court erred in failing to instruct the jury that if Buger Hook took the furs in an honest belief he had a right to do so, defendant must be acquitted. Defendant claims that if Buger lacked the requisite mental state for the crime of stealing, no crime was committed; regardless of the culpability of his own mental state, he cannot be convicted as an accomplice to a crime that did not occur. Although the criminal code supports this contention, we find that the defendant also failed to "inject" the issue of Buger Hook's claim of right.
Prior to January 1, 1979, 9 § 556.170 10 provided that a principal in the second degree in the commission of any felony or accessory before the fact to any murder or other felony could be adjudged guilty of the offense in the same degree and could be charged, tried, convicted and punished in the same manner, as the principal in the first degree. In State v. Lute, 608 S.W.2d 381 (Mo. banc 1980), we noted that under this law, one who aided another in the commission of a crime could not be guilty of a greater crime than the actor had an intent to commit. 608 S.W.2d at 384. On January 1, 1979, § 556.170 was replaced by §§ 562.036, 562.041, 562.046 and 562.051, RSMo 1978. Section 562.036 provides that a person with the required culpable mental state is guilty of an offense if it is committed by the conduct of another person for which he is criminally responsible. Section 562.041, in pertinent part, provides that a person is criminally responsible for the conduct of another when "... [e]ither before or during the commission of an offense with the purpose of promoting the commission of an offense, he aids ... such other person in ... committing ... the offense...." (Emphasis added). Under these provisions, commission of an offense seems to be a condition precedent to criminal responsibility based on the conduct of another, and § 570.070 expressly provides that a person does not commit the offense of stealing if he appropriates property under an honest claim of right.
Section 562.046, moreover, enumerates certain defenses an accomplice may not raise. It is no defense to a prosecution for an offense in which the criminal responsibility of the defendant is based upon the conduct of another that "... [s]uch other person has been acquitted or has not been convicted or has been convicted of some other offense or degree of offense or lacked criminal capacity or was unaware of the defendant's criminal purpose or is immune from prosecution or is not amenable to justice; ..." Conspicuously absent from the list of barred defenses is a defense that such person lacked the culpable mental state necessary for the crime. The treatment of culpable mental states in the code is quite thorough; Section 562.051, 11 in fact, clearly contemplates that different mental states might lead to conviction of different degrees of the same offense. Absent any...
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