State v. Tripp, s. 20008

• Decision Date: 13 February 1997
• Docket Number: 20913,Nos. 20008,s. 20008
• Citation: 939 S.W.2d 513
• Parties: STATE of Missouri, Plaintiff-Respondent v. Keith L. TRIPP, Defendant-Appellant and Keith L. TRIPP, Appellant STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 513

939 S.W.2d 513

STATE of Missouri, Plaintiff-Respondent v. Keith L. TRIPP, Defendant-Appellant and Keith L. TRIPP, Appellant STATE of Missouri, Respondent.

Nos. 20008, 20913.

Missouri Court of Appeals,

Southern District,

Division Two.

Feb. 13, 1997.

A. Renae Adamson, Asst. Appellate Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Joanne E. Joiner, Assistant Attorney General, Jefferson City, for respondent.

PARRISH, Judge.

Keith Tripp (defendant) was convicted following a jury trial of robbery in the second degree (Count I), § 569.030; ¹ burglary in the first degree (Count II), § 569.160; burglary in the second degree (Count III), § 569.170; and stealing (Count IV), § 570.030. He was charged and tried as a prior offender. § 558.016.2, RSMo Supp.1993.

Defendant filed a motion for post-conviction relief as permitted by Rule 29.15. ² The motion was denied following an evidentiary hearing.

Defendant appeals the judgment of conviction in his criminal case (No. 20008) and the order denying his Rule 29.15 motion (No. 20913). The appeals were consolidated pursuant to Rule 29.15(l ) as it existed on the date defendant's motion was filed. See Rule 29.15(m). No. 20008 is affirmed. No. 20913 is reversed and remanded with directions.

No. 20008

Facts

At approximately 12:20 a.m. the morning of January 19, 1994, defendant and his half-brother, ³ Daniel Tripp, forcibly entered the residence of Dennis Smithson. Daniel believed there were baseball cards valued at about $8,000 and money in the house. Daniel kicked open a back door to the residence. Smithson was home. Smithson heard the noise and screamed--defendant and Daniel thought Smithson was at work.

Smithson believed his furnace had exploded. He got out of his bed. When he entered his dining room, Smithson was met by Daniel. Smithson was struck in the face. He was told to shut up and get on the floor.

Daniel went to the front door. He opened the door for defendant. Defendant ran past Smithson and entered a bedroom. Defendant put change from the top of a dresser into a sack. A few minutes later one of the intruders asked Smithson if he had any rope. He said he did not. Daniel told defendant to tie him up. Defendant cut cord from Smithson's telephone and used the cord to tie his feet together. Defendant tied his hands behind his back. Smithson was placed face down on the floor. Daniel had a gun. He clicked it and told Smithson, "I sure wouldn't want to have to shoot somebody."

After tying Smithson, defendant and Daniel went into the bedroom and turned on the lights. They came out of the bedroom and asked Smithson if he had a safe. He answered, "[N]o."

The house became quiet. Smithson explained:

I then began to try to get untied. And surprisingly to myself, I was able to get untied, my hands. And I--I, of course, you know, rose up and got my feet untied. And during this time I was getting untied, I had this real bad feeling that there were--they were behind me on the porch or behind me waiting for me to get untied.

Well, I got untied, and I immediately turned to the telephone. Even though I realized the phone lines had been cut, I--I just tried the telephone. There was no dial tone. And I simply ran out the front door and ran all the way to the police station.

After the burglary, cash was missing from Smithson's billfold. There were two keys missing. The change that was in the bedroom was gone. Before the burglary there was about $60 in the billfold. The change that was missing was estimated to be $40 to $60.

Around noon, January 25, 1994, defendant and his two half-brothers, Daniel Tripp and Richard Tripp II, went to John Hutchison's residence located on a farm about 5 miles south of Nevada, Missouri. They traveled in defendant's wife's orange Toyota Tercel automobile. Richard was driving. When they reached the Hutchison residence, Richard got out of the car and knocked on the front door of the residence. No one answered. Defendant and Daniel got out of the car and approached the residence. Richard got back in the car and drove away.

Daniel kicked in the front door. He and defendant entered the house and searched for money. They took gold necklaces, a black ski mask, rolls of coins and other items. They placed them in a backpack they found in the house.

Hutchison returned home unexpectedly. Daniel saw him drive up to the residence in a pickup truck. Hutchison got out. He had his back toward the house getting something from behind the seat of the pickup.

Defendant and Daniel left the house through a sliding back door. They were carrying the backpack. Defendant picked up a portable phone as he was leaving the house. He threw the phone into the back yard in an effort to prevent Hutchison from calling law enforcement officers.

John Hutchison began unloading feed from his pickup. He heard noises behind the house. He walked to the back of the house and saw defendant and Daniel running away. He saw the back door to the house standing open. Hutchison shut the door and noticed that items in the house had been ransacked. He returned to his pickup and went after defendant and Daniel.

Defendant and Daniel ran to their car. Richard was there. He got in the back. Defendant and Daniel got in the car and drove away.

Hutchison saw the orange Toyota. It was standing still when he first saw it. He followed the Toyota but was unable to keep it in sight. After he lost sight of the car, he went to the Vernon County Sheriff's office in Nevada, Missouri, and reported what had happened.

Defendant, Richard and Daniel drove to Nevada to Daniel's house. They left the stolen items there and changed clothes. The road to the Hutchison house had been muddy so they decided to take the car to a car wash.

An off-duty deputy sheriff observed the three men at the car wash. The deputy had heard a radio transmission about a burglary and a description of an orange car. He contacted the sheriff's dispatcher and held the three until other officers and Hutchison arrived. Hutchison identified the orange car as the one he had followed from his house.

A check of the Hutchison house revealed that the front door had been kicked in; that two bedrooms and a closet had been ransacked. The cordless telephone was found outside behind the house in the area where the two intruders had run. There was $45 in change, four necklaces and a $5 bill missing from the house. Hutchison noticed a ski mask missing and that two pairs of coveralls had been moved. A search warrant was obtained for Daniel's residence. Officers seized items that Hutchison identified as his property.

Allegations of Trial Court Error

Defendant contends the trial court erred in denying a motion to sever the offenses with which he was charged for separate trials and in giving Instruction No. 5, the verdict-directing instruction for robbery in the second degree, which he argues did not comply with MAI-CR3d 323.04.

Point I is directed to the four-count information on which defendant was tried. Counts I and II charged offenses that were committed January 19, 1994. The offenses charged in Counts III and IV occurred January 25, 1994. Defendant filed a Motion for Severance of Offenses the morning of trial. It requested the trial court to sever Counts I and II from Counts III and IV for trial. The trial court denied the motion.

Point I contends the trial court erred in denying defendant's Motion for Severance of Offenses. It alleges the offenses "were improperly joined for trial"; that the presentation of evidence of separate criminal acts unduly prejudiced defendant. Point II argues further that even if the joinder were proper, the trial court abused its discretion in denying the request for severance.

Point I presents two distinct issues. The first issue is whether the offenses were properly joined in the information. State v. Forister, 823 S.W.2d 504, 508 (Mo.App.1992). If the joinder is found to have been proper, the second issue must be addressed. The second issue is whether the trial court abused its discretion by failing to sever the offenses and trying them in a single prosecution. Id.

Joinder is either proper or improper under the law, while severance is within the trial court's discretion. [State v. Sims, 764 S.W.2d 692, 696 (Mo.App.1988).] Joinder addresses the more basic question of what crimes can be charged in a single proceeding, while severance presupposes proper joinder and leaves to the trial court's discretion the determination of whether prejudice may or would result if charges properly joined were tried together. Id.

Joinder is governed by Section 545.140(2), RSMo 1986, which provides as follows:

Notwithstanding Missouri supreme court rule 24.07, two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or infractions, or any combination thereof, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

Joinder of more than one offense in a single indictment or information is also provided for in Supreme Court Rule 23.05 which states:

Misdemeanors or Felonies--Indictment or Information-Joinder of Offenses

All offenses that are of the same or similar character or based on two or more acts that are part of the same transaction or on two or more acts or transactions that are connected or that constitute parts of a common scheme or plan may be charged in the same indictment or information in separate counts.

State v. Olds, 831 S.W.2d 713, 718 (Mo.App.1992).

Similar tactics followed in the commission of crimes suffice to show acts "of the same or similar character." State v. White, 755 S.W.2d 363, 367 (Mo.App.1988). Tactics need only resemble or correspond with tactics used in another joined offense; they need not be identical. State v....