State v. Sloan

• Decision Date: 08 March 1977
• Docket Number: No. 37595,37595
• Citation: 548 S.W.2d 633
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Leonard W. SLOAN, Defendant-Appellant. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 633

548 S.W.2d 633

STATE of Missouri, Plaintiff-Respondent, v. Leonard W. SLOAN, Defendant-Appellant.

No. 37595.

Missouri Court of Appeals, St. Louis District, Division One.

March 8, 1977.

Allen I. Harris, Clayton, for defendant-appellant.

John C. Danforth, Atty. Gen., Preston Dean, William F. Arnet, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for plaintiff-respondent.

PER CURIAM.

This is an appeal by defendant-appellant, Leonard W. Sloan, from a judgment of conviction entered by the circuit court of the City of St. Louis on October 24, 1975, by which the appellant was sentenced to two years in the department of corrections for the offense of burglary, second degree. § 560.070, RSMo. The appellant was found guilty by the jury. The state having pleaded and proved a prior conviction, appellant was sentenced by the court under the Second Offender Act, § 556.280, RSMo.

A jury could reasonably find the following facts. Mr. James Bedrosian owned certain real property located at 3862 Olive Street in the City of St. Louis. He had owned the property since 1964. The building is located on the southeast corner of Vandeventer and Olive Streets in the city. He used the building as a "warehouse." He kept lumber, paneling, paint, "plumbing stuff" and general storage therein. A few days before January 25, 1974, he closed up the premises and secured the front door. Included in the property stored therein was a sink and two copper refrigerator coils. These items were in his warehouse on January 21, 1974.

On January 25, 1974, Ms. Wanda Reeder, who lived a few doors from the warehouse at 3848 Olive Street, was at home watching television. Shortly after 3:00 p. m. Ms. Reeder intended to move her automobile which was parked on Olive Street because "(y)ou have to move it before four o'clock; they have a traffic thing that you have to move it." Shortly after 3:00 p. m., while in her house, she heard an "unusual noise" she heard some glass breaking. The sound came "from the left of me" towards the intersection of Olive and Vandeventer. When she heard the sound, she went downstairs and walked to the corner and saw that the "door, (of the warehouse) the bottom half of the door in the corner was broken." She also saw a truck in which were "two gentlemen" and one "gentlemen (was) getting in the truck." The pick-up truck which was parked on Vandeventer "drove away" and went "(d)own Vandeventer towards Washington." She noticed the license plate on the truck and wrote the number down when she returned to her home. When she returned to her home, she called the police and Mr. Bedrosian and then went back downstairs to move her car. When she did so, one of her neighbors "yelled at me and told me to look down towards the corner." ¹ When she looked, the same truck which she had seen before was parked on Olive Street. One man (the appellant) was sitting in the truck and two men were "coming up the street carrying a sink." Refrigerator coils were already in the pick-up truck at that time. She walked to the corner near the truck and "yelled" at two detectives to "come over." The detectives were on Olive Street, at the curb, "stopped at the light." Ms. Reeder remained on the scene. After the police arrived, she walked to the corner and there she saw a tire tool "propped up against a square thing that holds up the corner of the building." When she went to the corner the second time, the refrigerator coils were in the pick-up truck and "the two gentlemen were carrying the sink and put it in the truck." The appellant, Mr. Sloan, was sitting in the truck, and two other persons Wiley Shields and Roy Waites were carrying the sink. She did not see where they had gotten it from but "they were walking down the sidewalk with it and put it in the back of the truck." She found broken glass in front of the door. The men, however, were neither cut nor bleeding.

When Ms. Reeder was at the intersection of Vandeventer and Olive Streets the second time, she hailed two detectives William Pietrowski and Frank Ellis. They were working the 8:00 a. m. to 4:00 p. m. shift. Shortly after three o'clock on January 25, 1974, the officers were in the area working on another case when they saw a lady standing on the southeast corner of Vandeventer and Olive. She was calling " 'police officer, police officer, over here.' " They "got out" of their vehicle and talked to the lady. As a result of the conversation, they detained the three men, one of whom was the appellant, Mr. Sloan. Detective Pietrowski "(s)poke with the lady, . . . and informed the gentlemen what the lady had said and asked them to stay in the area, (and) that a uniformed policeman would come to make a full investigation." At the scene, Detective Pietrowski saw "cooler coils," a "sink" and a "broken window." Officer Pietrowski saw the appellant, Sloan, in the driver's side of the blue Ford pick-up truck. "He (appellant) got out a couple of times" and inquired "what was the matter why was he being detained there." The pick-up truck was parked about "twenty-five to thirty feet" from the building. While Sloan was in the truck, the other two men were on the sidewalk. Officer Pietrowski examined the glass door which contained several decals and which had a wooden frame about eighteen inches from the ground. The window, three and a half to four feet from the ground, was broken. Other officers eventually came onto the scene and the detectives left.

As stated, Ms. Reeder called the owner of the property, Mr. James Bedrosian. When he received the telephone call he came to the building. When he arrived he saw the "front window broken and two detectives and a truck with a sink and two refrigerator coils and three suspects." ² He did not know the suspects and never gave them permission to go into the warehouse. When he arrived the front door was closed. He testified at trial that the sink and the two coils were in his warehouse on January 21, 1974, "about seven or eight feet from the front door." He knew Wanda Reeder. On cross-examination he testified that he inspected the coils and sink while at the scene. When asked "What identifying marks did the sink have on it?", he replied, "I know the sink; I pulled it out of a lavatory."

Then the following occurred:

"Q. (By defense attorney): What identifying marks did it have?

"A. I can't say; the sink was missing out of the place and the coils came out of a beer box that is all I know. As far as some identification, I can't see there is any mark on them, you know.

"Q. Well you can't see any identifying mark on this sink that shows it was your sink?

"A. No.

"Q. What makes these beer cooler coils any different than any other beer cooler coils?

"A. They are about the same.

"Q. How do you know they were your coils?

"A. Because they were missing out of my establishment.

"Q. You had some missing beer coils and a missing sink. Is there any way at all you can say that sink and beer coils were in fact the same beer coils and same sink that were in your place?

"A. I didn't see the men carry them out, but they were gone out of the place.

"Q. That is not my question. Was there anything did you have your name attached, a broken chip that you recognized?

"A. No, sir."

On redirect examination, Mr. Bedrosian testified that the appellant offered him some money if he would not prosecute.

On February 15, 1974, an information was filed charging the appellant, Mr. Shields and Mr. Waites with burglary in the second degree. On June 30, 1975, the information was amended to charge a prior conviction. Trial was held beginning on June 30, 1975, at which the above evidence was adduced.

At trial the appellant, Mr. Sloan, testified on his own behalf. He testified that he worked for a cab company and on January 25, 1974, went to the Carioca Lounge where he met Shields and Waites. While there he had "(q)uite a few" drinks. While there a man "I really don't know the man" told him about a job "(t)o move some stuff for him" and offered the three of them ten dollars to do a job for him. The "stuff" was at Vandeventer and Olive. The man had a green Volkswagen. They arrived at Vandeventer and Olive but did not see the Volkswagen. When appellant parked, he saw Ms. Reeder coming down the street

". . . and she started screaming. I thought somebody was jumping on her. I jumped out of the truck to help her and the police were there. I said 'what's going on?' This lady I found out later after I was locked up Helen Kaiser, said that man never did anything. They told me to get back in my truck. I got back in my truck. They stayed out there talking and I got out and said 'what's going on?' They said to get back in the truck you never had nothing to do with it but they still locked me up."

The appellant denied breaking any window and denied that the sink and coils were ever in his truck.

Both sides rested, instructions were given including the burglary and circumstantial evidence instruction (MAI-Cr 3.42), arguments were made and the jury found the appellant guilty of burglary in the second degree. After overruling the motion for new trial, the court granted allocution and sentenced the appellant to a minimum sentence of two years in the department of corrections.

Appellant appeals. On this appeal he contends that the court erred ". . . in failing to dismiss this case on the grounds that the victim (Mr. Bedrosian) was unable to identify any property which might have been involved . . . as being his, therefore, negating the element in a burglary case that the breaking and entering must be with the intent to 'steal' or commit a felony."

The thrust of appellant's contention on this appeal, as we understand it, is that, since the victim, Mr. Bedrosian, was unable to identify the sink and coils as belonging to him, there was no showing that the breaking and entering of the warehouse was with intent to steal or commit a felony therein, an essential element of the offense,...