State v. Vance, WD
| Decision Date | 23 March 1982 |
| Docket Number | No. WD,WD |
| Citation | 633 S.W.2d 442 |
| Parties | STATE of Missouri, Respondent, v. Dennis L. VANCE, Appellant. 31638. |
| Court | Missouri Court of Appeals |
Stephen W. Mendell, Asst. Public Defender, Fifth Judicial Circuit of Missouri, St. Joseph, for appellant.
John Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
Before NUGENT, P. J., and TURNAGE and LOWENSTEIN, JJ.
Dennis L. Vance appeals his conviction following a jury verdict finding him guilty of attempting to steal property having a value of at least $150 in violation of § 564.011 1. He was sentenced to a term of four years imprisonment under the provisions of § 558.011. We affirm the judgment.
Vance was arrested in the early hours of May 17, 1979, as he tried to hitch a parked refrigerated trailer unit to a tractor unit at Wiedmaier's Truck Stop in St. Joseph, Missouri. His defense was his honest belief that he had a right to take the trailer (which issue was explicitly submitted to the jury by the court's instructions). He testified that on the evening of May 16 while at the Fireside Inn, Emmett Pendergras, the "bouncer" at the bar, offered him $100 to drive Pendergras' truck and park it under a trailer. According to Vance, Pendergras broke the window to enter a White Freightliner truck unit which Pendergras claimed was his. He told Vance to follow Pendergras' Ford LTD. Vance, in turn, was trailed by a white Lincoln Continental Mark IV. Vance did not know the occupants of the Lincoln and had no conversation with them.
The caravan made three stops at which Pendergras looked for "his" trailer. At the second stop, Pendergras removed a CB unit and personal effects from the truck. At the third, Wiedmaier's, Pendergras directed Vance to hook the truck up to a particular refrigerator trailer. Pendergras had left the scene when Vance was arrested. He was not called as a witness by either party.
Vance unsuccessfully tried to introduce into evidence as a business record under § 490.680, a police report prepared by Officer Babe McGaughy on May 17. It included a statement made to the officer by Kenneth E. White, a witness he had interviewed. White did not appear at trial. In the report McGaughy quoted White as stating that at about 2:15 or 2:45 that morning he was asleep in the cab of his truck at Wiedmaier's and was awakened by the noise of a man walking on the fuel tank of his truck. When White asked what he was doing, the man replied that "everything was cool" and that he "had broke down and was going too (sic) have someone pick up his truck." White was reported to have said that the man was driving a white Lincoln Continental with a Kansas dealer's plate.
In preparation for trial, defense counsel contacted White, who resided in Oklahoma, to get him to appear at trial to testify as to those statements. Vance unsuccessfully sought a second continuance for the purpose of securing the attendance of White. The prosecutor offered to stipulate that a white Lincoln was in Wiedmaier's parking lot at the time of defendant's arrest. The arresting officer subsequently testified that he had seen a white Lincoln parked at Wiedmaier's shortly before Vance's arrest.
Verdict-directing Instruction No. 5, cast in the form of MAI-CR2d 18.02, told the jury of the range of punishment it could assess in the form of imprisonment but said nothing about a fine. Instruction No. 6, in the form of MAI-CR2d 2.60, instructed the jury that the court could sentence defendant to a term of imprisonment not to exceed the term assessed by the jury, the payment of a fine or both imprisonment and a fine. The court refused Vance's requested Instruction No. "X", identical to Instruction No. 5 except for the inclusion of a paragraph giving the jury the option of assessing a fine.
On appeal Vance contends that the court erred, first, in failing to allow into evidence under the Uniform Business Records as Evidence Act 2 the police report containing White's statement, and, second, in failing to comply with the requirements of § 557.036.2 that the jury be instructed as to the range of punishment authorized by statute and directed "upon a finding of guilt to assess and declare the punishment as a part of their verdict."
Vance's first point must fail. While qualification as a business record under the Act offsets the objection that the person who prepared the report is not present for cross-examination, the Act does not make all records competent evidence regardless of by whom, in what manner, or for what purpose they were compiled or offered. State ex rel. State Highway Commission v. Koberna, 396 S.W.2d...
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