State v. Sales

• Decision Date: 26 June 2008
• Docket Number: No. 28627.,28627.
• Citation: 255 S.W.3d 565
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Christopher K. SALES, Defendant-Appellant.
• Court: Missouri Court of Appeals

255 S.W.3d 565

STATE of Missouri, Plaintiff-Respondent, v. Christopher K. SALES, Defendant-Appellant.

No. 28627.

Missouri Court of Appeals, Southern District, Division Two.

June 26, 2008.

Ellen H. Flottman, Columbia, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., and Dora A. Fichter, Asst. Atty. Gen., Jefferson City, MO, for respondent.

GARY W. LYNCH, Chief Judge.

Following a jury trial, Christopher K. Sales ("Defendant") was convicted on two counts of burglary in the first degree (section 569.160), five counts of burglary in the second degree (section 569.170), and five counts of stealing (section 571.030).¹ Defendant was sentenced to twelve ten-year terms of imprisonment, with all sentences ordered to run concurrent with each other.

Defendant appeals his convictions and sentences on the two counts of burglary in the first degree, contending that the trial court erred in overruling his motion for judgment of acquittal, as "the state failed to prove beyond a reasonable doubt that Defendant was `armed' with a deadly weapon within the meaning of Section 569.160(1) in either Count I or Count II, since the state did not establish that the firearms taken from the burglaries were easily accessible and readily available for use as weapons, rather than simply stolen items." Defendant asks this court to reverse his convictions for burglary in the first degree and impose convictions for burglary in the second degree. We affirm.

Factual Background

Upon a challenge to the trial court's denial of a motion for acquittal, we review to determine if the State presented sufficient evidence to make a submissible case. State v. Granger, 966 S.W.2d 27, 29 (Mo. App.1998). "In determining whether the evidence is sufficient to support a conviction, we accept as true all evidence favorable to the State, including all favorable inferences drawn from the evidence, and disregard all evidence and inferences to the contrary." Id. Viewed in that light the evidence at trial established the following:

Sometime during the late night hours on November 21, 2006, or the early morning hours of November 22, 2006, Shawn Bowen, Johnna Melcher, and James Reno drove in Melcher's car to Kansas City and picked up Defendant and another person who was only identified as Josh. They drove to a hunting compound, which consisted of a cabin, a house and various other travel trailers and recreational vehicles, located on some rural acreage in Cedar County, arriving there around 3:00 a.m. Using a tire iron, they busted the chain on the gate to the property to gain access. When they reached the actual compound located on the acreage, Defendant entered the cabin from the back door, opened the front door, and turned on the lights. Melcher stayed in her car, and Bowen stood watch outside. Reno decided they needed a truck or a van in order to transport the stolen items, and Bowen and Melcher drove Reno into Humansville, where Reno stole a blue Chevy Astro minivan.

When they returned to the hunting camp with the van, all of the lights were on in the house and trailers, and Defendant and Josh "already had a bunch of stuff sitting outside." They backed the van up to each residence, and Bowen, Reno, Josh, and Defendant loaded the van with the stolen goods. They loaded the van and Melcher's car with as much as they could fit, which included two firearms stolen from the cabin and three firearms stolen from the house.

Defendant was eventually apprehended, arrested and charged as noted above. The amended information against Defendant upon which he was tried alleged as to the two counts of burglary in the first degree that "defendant or another participant in the crime was armed with a deadly weapon[.]" Count I alleged that Defendant unlawfully entered the premises of [the owner of the house] and, in fleeing therefrom, he or another participant was armed with a shotgun. Count II alleged that Defendant unlawfully entered the premises of [the owner of the cabin] and that he or another participant left the premises armed with a rifle. Defendant appeals his convictions on these two counts.

Discussion

In his single point relied on, Defendant challenges the decision in State v. Crews, 968 S.W.2d 763 (Mo.App.1998), where the Eastern District held that a criminal defendant was considered "armed with a deadly weapon," as provided under section 569.160(1), when he took possession of the victims' loaded rifle for the purpose of stealing it after unlawfully entering their home. Id. at 766. Crews contended that the state failed to prove that he either loaded the rifle or that he knew the rifle was loaded. The Eastern District utilized a dictionary definition in defining the term "armed" to mean "equipped with a weapon" and held that, based upon the definition of "deadly weapon," in section 569.061(10) ("any firearm, loaded or unloaded"), whether or not the rifle was loaded was immaterial to a determination of whether the defendant was "armed with a deadly weapon." Thus, deciding that "once defendant took possession of the Koehlers' .22 caliber rifle while burglarizing their home, he was `armed' for purposes of section 569.160(1)." Id.

"Section 569.160 defines burglary in the first degree as entering or remaining unlawfully in a building or inhabitable structure, with the intent to commit a crime therein, when one or more of three circumstances also exists: (1) the perpetrator is armed with an explosive or deadly weapon, (2) he or she causes or threatens immediate physical injury to a non-participant in the crime, or (3) a non-participant in the crime is present in the building when the perpetrator effectuates entry." State v. Carpenter, 109 S.W.3d 718, 723 (Mo.App. 2003). "Deadly weapon" is defined under section 556.061(10) as "any firearm, loaded or unloaded, or any weapon from which a shot, readily capable of producing death or serious physical injury, may be discharged, or a switchblade knife, dagger, bill, blackjack or metal knuckles[.]"

One of the elements the State was required to prove was that Defendant was "armed." Crews held that "a person is `armed' when he equips himself with a weapon for the purpose of stealing it." Crews, 968 S.W.2d at 766. Pursuant to the decision in Crews, Defendant here was "armed" with a deadly weapon when he stole the firearms during the burglary in Cedar County, and the State presented sufficient evidence to demonstrate that Defendant or another participant in the break-in stole firearms.

However, Defendant urges "that Crews was wrongly decided and should not be followed." Defendant contends that applying a dictionary definition of "armed" to find that stealing a deadly weapon during a burglary constitutes being "armed with a deadly weapon," is an illogical result. As support, Defendant points out that section 570.030 provides that "[s]tealing a firearm is itself punished as a class C felony." Further, under section 569.160, burglary is aggravated "to first degree because the perpetrator's actions are more aggravated: there is someone in the house or the perpetrator brings a weapon to the burglary." Defendant contends that "[s]tealing a firearm cannot be what the legislature intended to aggravate a burglary." Defendant asks this Court, contrary to the holding in Crews, to "reverse his convictions in Counts I and II for burglary in the first degree, impose convictions of burglary in the second degree, and remand for resentencing on those counts."

As support, Defendant cites to cases outside of Missouri. In State v. Befford, 148 Ariz. 508, 715 P.2d 761 (1986), the Supreme Court of Arizona reduced a first-degree burglary conviction and remanded the case for re-sentencing on a second-degree burglary conviction, finding that the defendant was not "armed" when he placed a shotgun in a zippered case next to the door with other items he intended to steal, as such a situation stretched the "definition of `armed' beyond that contemplated by either the legislature or this court." Id. at 763 (no issue or distinction was made from the fact that the firearm was in a zippered case). Before the decision in Befford, Arizona courts specifically included a firearm in its definition of "deadly weapon," and the definition of "firearm" included "any loaded or unloaded pistol, revolver, rifle, shotgun[.]" Id. at 762. The Befford court ultimately decided: "In order to be `armed' within our burglary statute, a defendant must possess the item considered a deadly weapon or dangerous instrument in such a manner as to indicate his willingness or present ability to use it as a `weapon.'" Id. The supreme court reasoned that there was "no evidence that the defendant possessed the gun as a `weapon'; rather, he possessed it in the same status as he possessed the television sets, jewelry and various other items of value stacked near the door. He possessed them as stolen goods or loot." Id. To hold otherwise, the Arizona court found, would elevate almost every burglary to first degree, where Arizona's definition of "dangerous instrument" is "anything that under the circumstances in which it is used, ... is readily capable of causing death or serious physical injury." Conceivably, the Court reasoned, a tool, a lamp, a baseball bat, and most household items could be used as a deadly weapon. Id.

We do not find Befford persuasive because the Arizona burglary statute differs in one significant aspect from Section 569.160. The Arizona statute elevates burglary from second to first degree if the perpetrator is "armed with explosives, a deadly weapon or a dangerous instrument[.]" Id. (emphasis added). Section 569.160(1) provides for such elevation if armed with an explosive or deadly weapon, but omits any reference to a dangerous instrument. Therefore, the Befford court's construction of the meaning of "armed with a deadly weapon" as requiring that a deadly weapon be used as a weapon based upon the Arizona statute's classification of a dangerous instrument by its...