State v. Street
| Decision Date | 23 June 1987 |
| Docket Number | No. WD,WD |
| Citation | 735 S.W.2d 371 |
| Parties | STATE of Missouri, Respondent, v. Lamar O. STREET, Appellant. 38724. |
| Court | Missouri Court of Appeals |
Janet M. Thompson, Columbia, for appellant.
William L. Webster, Atty. Gen., Jefferson City, Philip M. Koppe, Deborah L. Ground, Asst. Atty. Gen., Kansas City, for respondent.
Before CLARK, C.J., and NUGENT and LOWENSTEIN, JJ.
Lamar O. Street was charged with failure to appear, § 544.665, RSMo.1986, in answer to a criminal charge. He was tried before a jury, was convicted and was sentenced by the court to a term of seven years as a prior and persistent offender. On this appeal, he raises two points, that the evidence was insufficient to convict him of the charge and that the court erred in finding him to be a prior and persistent offender.
As to the issue of evidentiary sufficiency, the facts adduced from the evidence, restated in the light most favorable to the state, were as follows. Appellant was scheduled to appear for trial November 19, 1985 in Clay County. He failed to appear and, according to his own testimony, he was in Portland, Oregon on that date. On November 22, 1985, appellant went from Portland to Salt Lake City and eventually to Mound City, Kansas. On December 5, 1985, appellant made contact with his bondsman who surrendered appellant into custody at Clay County.
Appellant argues that the state failed to prove beyond a reasonable doubt that his failure to appear for trial was willful or intentional. He bases the argument on the content of his own evidence in which he explained that his departure from the area on November 10, 1985 was to seek employment in the state of Washington and that his return to Clay County was delayed by weather conditions and a lack of funds. The contention is that the state offered no proof of any intent on appellant's part to evade trial and that circumstance, coupled with appellant's own explanation of the lapse, deprives the case of proof of an essential element of the crime.
The offense of failure to appear does involve a specific intent and therefore the state does not make a case by merely showing that the accused was not present on the assigned court date. From this, however, it does not follow that the state must prove willfulness by direct evidence. The intent not to appear is usually not subject to direct proof but is shown by circumstantial evidence. State v. Young, 636 S.W.2d 684, 686 (Mo.App.1982).
Having in mind the proposition that the jury was entitled to believe some or none of the testimony presented, State v. Carter, 670 S.W.2d 104, 108 (Mo.App.1984), we find sufficient circumstantial evidence to establish that appellant willfully failed to appear for trial. He was aware of the date set for his court appearance and yet only nine days before that date he set out by bus and with limited funds to travel to Seattle on the dubious premise that someone had suggested employment opportunities might be found. Failing to reach his destination, he yet lingered in Portland, Oregon until well after he was scheduled to appear in Clay County. When he did finally return to this general area, he did not report to the court, but spent several days in Mound City, Kansas on the excuse that because he was already late, a few more days made no difference. The court correctly denied a motion for acquittal based on insufficiency of the evidence.
The second point of error presented which focuses on sentencing appellant as a persistent offender is not so readily decided. At trial, the state presented evidence to the court proving three previous felony convictions of defendant. In response to that proof, the court made the finding that appellant was a prior and persistent offender and sentenced him accordingly. The information in the case did not charge appellant to be a prior or persistent offender as required by § 558.021.1(1), RSMo.1986, no request was made by the state at any time to amend the information and no mention of the deficiency appears in the record until it is raised as a point of error on this appeal.
Independent research has disclosed a substantial number of cases under the present repeat offender statute and its predecessors involving deficiencies in this aspect of criminal prosecutions....
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...extended term sentencing, a judicial emasculation of the legislative direction will be the accepted procedural norm." State v. Street, 735 S.W.2d 371, 372 (Mo.App.1987); see also State v. McGowan, 774 S.W.2d 855, 858 (Mo.App.1989)(future violations of section 558.021.2 will be "dealt with h......
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...of his right to sentencing by the jury. In both of these claims of error, Mr. Kidd relies on the opinion of this court in State v. Street, 735 S.W.2d 371 (Mo.App.1987), and its progeny, including State v. Merrill, 990 S.W.2d 166 (Mo.App.1999), his co-defendant's direct appeal. He interprets......
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