State v. Sielfleisch, s. 62004

• Decision Date: 04 October 1994
• Docket Number: 54430,Nos. 62004,s. 62004
• Citation: 884 S.W.2d 422
• Parties: STATE of Missouri, Respondent, v. Peter C. SIELFLEISCH, Jr., Defendant-Appellant. Peter C. SIELFLEISCH, Jr., Defendant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 422

884 S.W.2d 422

STATE of Missouri, Respondent, v. Peter C. SIELFLEISCH, Jr., Defendant-Appellant.

Peter C. SIELFLEISCH, Jr., Defendant-Appellant, v. STATE of Missouri, Respondent.

Nos. 62004, 54430.

Missouri Court of Appeals,

Eastern District,

Division Three.

Oct. 4, 1994.

Philip M. Horwitz, Haller, Leonard & Lenze, Clayton, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jennifer A. Glancy, Asst. Atty. Gen., Jefferson City, for respondent.

SIMON, Presiding Judge.

Peter C. Sielfleisch, Jr., defendant-appellant, appeals from: (1) his conviction of stealing $150.00 or more by deceit, § 570.030 R.S.Mo.1986 (all further references shall be to R.S.Mo.1986 unless otherwise indicated); and (2) the denial of his motion to vacate judgment and sentence, pursuant to Rule 29.15. On appeal, defendant contends that the trial court erred in (1) denying his motion for acquittal because defendant did not violate § 570.030; (2) denying his motion for acquittal because there was insufficient evidence that defendant had the intent to deceive and the victim relied upon defendant's false representation that financing was arranged; (3) overruling defense counsel's objection to the introduction of evidence regarding civil judgments against defendant when it was not relevant; and (4) entering judgment despite manifest injustice, which occurred when the prosecutor impermissibly argued during his closing statement that the jury should not consider the full range of punishment, and that defendant would commit crimes in the future. On his appeal from the denial of his Rule 29.15 motion, defendant argues that the motion court was clearly erroneous in finding no prejudice when defense counsel failed to call John Olivarri, Jr., to testify that defendant had financing arranged prior to March 1, 1988, and therefore no deceit occurred. Judgment affirmed.

On January 29, 1989, defendant was charged by indictment with stealing $150.00 or more by deceit, class C felony, § 570.030.

The evidence adduced at trial is viewed in the light most favorable to the verdict. In 1986, James Roberts (Roberts) owned J.R. Too's, a bar located in the Florissant Meadows Shopping Center. Bianco Properties (Bianco) owned the shopping center and leased the space to Roberts. Roberts purchased from Aries Lighting and Audio Company (Aries) approximately $70,000.00 worth of sound and light equipment, which subsequently was installed in the bar, and owed Aries approximately $7,000.00 at the time of the sale involved here. In addition to the sound and lighting equipment, Roberts also purchased and installed chairs, various fixtures and appliances, cash registers, soda fountains, televisions, tiling, carpeting, freezers and coolers.

In the fall of 1987, Roberts decided to sell his bar and listed J.R. Too's with Art Kelly, a real estate and commercial business broker. On March 1, 1988, Roberts sold J.R. Too's to defendant for $75,000.00. At that time, defendant gave Roberts a personal check in the amount of $40,000.00. The closing occurred at the office of defendant's attorney, who prepared the documents.

Per the sale agreement between Roberts and defendant, Roberts agreed to accept defendant's personal check for $40.000.00 as partial payment for the bar equipment, and defendant agreed to make monthly payments on the balance. As part of the sale agreement between Roberts and defendant, Roberts agreed to sublease the property to defendant until defendant could obtain a lease from Bianco.

Prior to the March 1, 1988 closing date, defendant paid Fred Barrera, the owner of Aries, $1,000.00 towards the unpaid balance. Defendant advised Roberts that he had made arrangements for the $40,000.00 check to clear, and that the "financing was all set." On March 1, 1988, after defendant gave Roberts the $40,000.00 check, Roberts gave defendant the keys to the bar and defendant took possession of the premises and began operation of J.R. Too's. On March 3 and 7, 1988, the written sale agreement was signed by defendant and Roberts, respectively.

At the closing, defendant asked Roberts to hold the $40,000.00 check until the following day. Roberts deposited defendant's check on that day and was notified two weeks later that the defendant had insufficient funds to satisfy the check. The bank ran the check through a second time and informed Roberts that defendant had insufficient funds to satisfy the check.

Roberts contacted defendant in regard to the check and defendant informed Roberts that he had sought alternative financing. Defendant continually assured Roberts that "financing was coming." Eventually, Roberts was unable to contact defendant. J.R. Too's remained open approximately two to three months after Roberts sold it to defendant. Defendant never made any subsequent payments to Roberts.

Bianco eventually locked the doors of the bar, pursuant to a court order for non-payment of rent. The Sheriff's Department contacted Roberts and advised him that the bar equipment would be removed and placed on the street. Roberts could not contact defendant so he had to remove the bar equipment, part of which was missing, and he placed the equipment in storage for approximately one year. Defendant never could be contacted and Roberts eventually sold the equipment and settled with Bianco. Further, Roberts had to pay liquor bills that defendant had incurred on Roberts' liquor license.

Defendant testified in his own defense at trial that his $40,000.00 check bounced because he was unable to obtain financing due to the lien on the bar equipment. Defendant further testified that he did not discuss the lien on the bar equipment with Roberts prior to the closing date, that he was unaware that the lien existed until after he signed the sale agreement and took possession of the bar, and that it was not his responsibility to pay the lien. Defendant testified that he had the right to exclusive possession of the bar on the closing date, that he abandoned the bar in mid-April, and that he never owned the bar equipment due to the lien.

During cross-examination, defendant denied that he had subsequently entered into a written security agreement with Willard Lappe in May of 1988, wherein Lappe loaned defendant $25,000.00 and defendant signed a promissory note pledging all of the bar equipment of J.R. Too's, representing that he had full and legal title to the property. Defendant further denied that he had ever pled guilty to a crime, whereupon the state introduced evidence that defendant pled guilty to making a false declaration. Additionally, defendant denied that a series of civil judgments were entered against him for fraud, unpaid bills and liens regarding his operation of various businesses, all of which were previously entered against him.

The state called Lappe as a rebuttal witness. Lappe testified that in May of 1988, defendant approached him to make an investment in J.R. Too's. Lappe entered into a security agreement with defendant whereby Lappe loaned defendant $25,000.00 and defendant signed a collateral promissory note pledging all of the bar equipment in J.R. Too's as collateral. In the security agreement, defendant represented that he had full and legal title to the bar equipment, including the lighting and sound equipment, free of all liens. Lappe eventually obtained a $143,000.00 judgment against defendant for fraud and failure to pay the note.

On March 5, 1992 the jury found defendant guilty of stealing $150.00 or more by deceit, and defendant was sentenced to one year imprisonment and a $1,000.00 fine.

Subsequently, defendant filed a Rule 29.15 motion and an evidentiary hearing was held on that motion. On June 24, 1993, the motion court issued its Findings of Fact and Conclusions of law, denying defendant's Rule 29.15 motion. On July 23, 1993, defendant filed a Rule 75.01 motion to re-open the denial of his Rule 29.15 motion. This motion asked the motion court to consider an allegation that was not contained in his Rule 29.15 motion. The Rule 75.01 motion subsequently was denied by the motion court. Defendant filed his notice of appeal, as to his 29.15 motion, on July 30, 1993.

In his first and second points, defendant contends that the trial court erred in denying his motion for acquittal at the close of all of the evidence because there was insufficient evidence to support his conviction for stealing by deceit, asserting that: (1) defendant did not violate § 570.030; (2) defendant did not have the intent to deceive; and (3) Roberts did not rely upon defendant's false representation that financing was arranged.

In reviewing a challenge to the sufficiency of the evidence, we are limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989). We must accept as true all evidence, whether direct or circumstantial, that tends to prove the defendant's guilt and must accept all inferences which support the verdict. State v. Dagley, 793 S.W.2d 420, 423 (Mo.App.1990). While doing so, we must reject all evidence and inferences contrary to the verdict. Id. A jury may believe all, some, or none of the witness' testimony, and the jury must resolve any contradictions or conflicts in that testimony. Dulany, supra.

Defendant was convicted of stealing over $150.00 by deceit, pursuant to § 570.030, which reads in pertinent part:

1. A person commits the crime of stealing if he appropriates property or services of another with the purpose to deprive him thereof, either without his consent or by means of deceit or coercion.

The essential elements of stealing by deceit under the statute are: (1) there must be an appropriation (2) of property or services of another (3) with the purpose to deprive the other thereof (4) accomplished either without the other's consent or by means of deceit or coercion. State v. Lue, 813 S.W.2d 922, 925 (Mo...