State v. Trujillo, s. WD

• Decision Date: 01 February 1994
• Docket Number: Nos. WD,s. WD
• Citation: 869 S.W.2d 844
• Parties: STATE of Missouri, Respondent, v. Israel TRUJILLO, Appellant. 46122, WD 47710.
• Court: Missouri Court of Appeals

Page 844

869 S.W.2d 844

STATE of Missouri, Respondent, v. Israel TRUJILLO, Appellant.

Nos. WD 46122, WD 47710.

Missouri Court of Appeals Western District.

Feb. 1, 1994.

Teresa Anderson, Asst. Public Defender, Kansas City, for appellant.

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

Before HANNA, P.J., and LOWENSTEIN and FENNER, JJ.

HANNA, Presiding Judge.

The defendant appeals from his conviction by a jury of tampering in the first degree, § 569.080.1(2), RSMo 1986, and his subsequent sentence of six years imprisonment and fine of $4,300.

The facts viewed in the light most favorable to the conviction are as follows. On September 2, 1990, Officer John Barrett of the Kansas City Police Department found a car parked in the woods. When he approached the car, he noticed a person, later determined to be the defendant, asleep in the front seat. He then returned to his patrol car to request backup and to run a computer check on the vehicle. At that time, the vehicle had not been reported stolen.

When backup arrived, Officer Barrett again approached the vehicle and woke the defendant. He asked the defendant several questions to which the defendant responded that he had had too much to drink and had pulled off of the road to sleep. The defendant also claimed that the car belonged to someone named Valdez. During the conversation, the officer noticed that the steering column of the car was broken. When he asked the defendant how he started the car, defendant replied that he had used a screwdriver. Officer Barrett then ran a computer check on the defendant which revealed an outstanding traffic warrant and arrested him.

On September 11, the defendant was brought to the police station for questioning. At the station, Detective Bob Arnold gave the defendant a Miranda waiver form, which the defendant read aloud and signed. The defendant then made a statement. Detective Arnold later discovered that the vehicle had been stolen from Joel Smith, who testified at trial that he had not given the defendant permission to drive the car.

The defendant was convicted and sentenced to six years imprisonment and a $4,300 fine. The defendants criminal appeal was suspended pending a final determination of his Rule 29.15 motion for post-conviction relief which was denied following the defendants waiver of an evidentiary hearing. The defendant filed a timely notice of appeal from the denial of his Rule 29.15 motion. However, since he has not filed a brief with this court addressing the Rule 29.15 order, the matter is deemed waived. State v. Newman, 839 S.W.2d 314, 317 n. 1 (Mo.App.1992). We proceed solely on the defendants direct appeal of his conviction. The defendant challenges the sufficiency of the evidence, and claims instructional error, violation of his Fifth Amendment and Miranda rights and misconduct of a juror who took notes during trial.

In his first point, the defendant argues that the trial court erred in overruling his motion for judgment of acquittal at the close of the states evidence because there was insufficient evidence to support the verdict. Following the denial of that motion, the defendant produced evidence. When a defendant introduces evidence on his own behalf, he waives any error with respect to the denial of the motion of acquittal at the close of the states evidence. State v. Davis, 753 S.W.2d 25, 27 (Mo.App.1988). Point denied.

In his second point, the defendant argues that the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence because there was insufficient evidence to support the verdict in that the state failed to prove that he drove the vehicle, an essential element of its case.

The defendant concedes that he told Officer Barrett at the scene and Detective Arnold at the police station that he had been driving the car and had decided to pull off the road to sleep because he had had too much to drink. However, the defendant, citing State v. Charity, 587 S.W.2d 350 (Mo.App.1979), argues that the statements he made to the police officers are not sufficient to sustain his conviction without independent proof of operating an automobile, which is an essential element of tampering in the first degree. § 569.080.1(2), RSMo 1986.

To prove the corpus delicti of a crime, the state need only show proof, direct or circumstantial, that the specific crime charged was committed by someone. State v. Duvall, 787 S.W.2d 798, 800 (Mo.App.1990). Independent evidence of circumstances which correspond and interrelate with the circumstances described in the confession are sufficient to prove the corpus delicti of the crime. State v. Stimmel, 800 S.W.2d 156, 158 (Mo.App.1990).

There is sufficient circumstantial evidence to prove that the vehicle was driven by someone. Officer Barrett testified that the steering column on the vehicle had been broken which corroborates the defendants statement to the officer that he had started it with a screwdriver. The owner of the vehicle testified that he had left the car in the parking lot of a hotel and that he had not given anyone permission to drive it. The car was found in a wooded area with the defendant in the front seat. The corpus delicti of the crime was proven. This evidence in combination with the statements the defendant made to the police was sufficient to support the conviction for tampering in the first degree. Point denied.

In his next point, the defendant argues that the trial court erred by refusing to give two instructions proffered by the defendant. First, he argues that since the primary evidence in this case was that he was found in the vehicle, it was error not to give his Instruction A, modeled after MAI-CR3d 310.08 regarding presence at or near the scene of the crime. Missouri courts, however, hold that the refusal to give MAI-CR3d 310.08 is not error except in cases of accessorial liability. State v. Lowe-Bey, 807 S.W.2d 132, 136 (Mo.App.1991). As the defendants case did not involve accessorial liability, the trial courts denial of the instruction was not erroneous.

Second, the defendant challenges the trial courts refusal to give Instruction B, modeled after MAI-CR3d 323.26 and addressing the lesser included offense of tampering in the second degree. Trial courts are obligated to give an instruction on a lesser included offense only if there is a reasonable basis in fact for finding the defendant guilty of the lesser offense and innocent of the higher offense. State v. Vineyard, 839 S.W.2d 686, 689 (Mo.App.1992). The crime of tampering in the second degree is unlawfully riding in another persons vehicle rather than actually driving it. § 569.090.1(2), RSMo 1986. Defendant testified, on his own behalf, that he merely found the car in the woods and got inside to sleep. There was no evidence that he rode in the vehicle while someone else drove. In the absence of any evidence to support the theory that he was riding in the car rather than driving it, the defendant was not entitled to an instruction on tampering in the second degree. Point denied.

In his fourth point, the defendant claims that the trial court erred in overruling his motion to suppress the statement made to Officer John Barrett. He argues that because the statement was made while he was in custody and had not been given the Miranda warning, it was inadmissible and should have been suppressed. The defendant claims he was in custody because prior to the statement, the officer had discovered via computer check that the defendant had outstanding traffic warrants and had already made the decision to arrest him.

In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966), the United States Supreme Court held that a person must be advised of his Fifth Amendment rights prior to a "custodial interrogation." The definition of custodial interrogation has been refined over time. See California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (citing Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977)). A "[c]ustodial interrogation occurs only when the suspect is formally arrested or is subjected to arrest-like restraints." State v. Middleton, 854 S.W.2d 504, 516 (Mo.App.1993) (citing State v. Schnick, 819 S.W.2d 330, 334 (Mo. banc 1991); State v. Feltrop, 803 S.W.2d 1, 13 (Mo. banc), cert. denied, 501 U.S. 1262, 111 S.Ct. 2918, 115 L.Ed.2d 1081 (1991)).

According to the testimony of Officer Barrett, the computer check which revealed the outstanding warrants and the decision to arrest the defendant did not occur until after the defendant had made the statement. Because the defendant was not under arrest or restrained in any way, the statement he made was not in response to a custodial interrogation. There was no violation of the defendants Miranda rights and, therefore, the trial court properly overruled the defendants motion to suppress. Point denied.

In his fifth point, the defendant claims that the trial court erred by overruling his motion to suppress the statement he made to Detective Bob Arnold at the police station because the waiver of his Miranda rights was not knowing and voluntary. The defendant argues that he could not comprehend the English language well enough to have understood the Fifth Amendment rights that he was waiving.

In determining whether a waiver of Miranda rights was voluntary, knowing and intelligent, the court must look to the totality of the circumstances. State v. Powell, 798 S.W.2d 709, 713 (Mo. banc 1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2914, 115 L.Ed.2d 1077 (1991). The question of the validity of a waiver is one of fact, and the trial courts finding will not be overturned unless clearly erroneous. Id.

Both police officers testified that they asked questions in English and the defendant responded in English. Detective Arnold testified that the defendant read...