State v. Vernon

• Decision Date: 22 February 2011
• Docket Number: No. WD 71123.,WD 71123.
• Citation: 337 S.W.3d 88
• Parties: STATE of Missouri, Respondent,v.Michael P. VERNON, Appellant.
• Court: Missouri Court of Appeals

337 S.W.3d 88

STATE of Missouri, Respondent,

v.Michael P. VERNON, Appellant.

No. WD 71123.

Missouri Court of Appeals, Western District.

Feb. 22, 2011.Motion for Rehearing and/or Transfer to

Supreme Court Denied March 29, 2011.

Application for Transfer Denied

May 31, 2011.

Alexa I. Pearson, Columbia, MO, for appellant.Shaun J. Mackelprang and James B. Farnsworth, Jefferson City, MO, for respondent.Before Division Three: CYNTHIA L. MARTIN, Presiding Judge, JAMES E. WELSH, Judge and GARY D. WITT, Judge.GARY D. WITT, Judge.

Michael Vernon (“Vernon”) was convicted after a jury trial in the Circuit Court of Buchanan County of one count of possession of burglar's tools, a class D felony, in violation of Section 569.180.¹ On May 5, 2009, the jury recommended that Vernon be sentenced to a fine to be determined by the court but did not recommend incarceration. On June 2, 2009, the trial court sentenced Vernon to a fine in the sum of $500. Vernon now appeals. We affirm.

STATEMENT OF FACTS²

Shortly after 1:30 a.m. on June 18, 2008, Jessica Holmes (“Holmes”) was sitting on her front porch when she heard a “rustling” noise coming from a nearby yard. At first she assumed it was an animal, but then she heard the breaking of glass. Holmes could tell that the sound had come from the house at 104 South 15th Street (the “House”), which was located diagonally across the street from her porch. The House was unoccupied, and the owners lived out of state. Richard Withrow (“Withrow”), a friend of the owners, acted as caretaker and checked on the building periodically.

Holmes called 911 and reported that she had heard breaking glass and believed that someone was in the “abandoned” house on the corner. Holmes estimated that she called the police within a minute or so of hearing the glass break and that two or three minutes after her call she saw officers arrive at the House.

When the officers received the dispatch regarding the possible burglary in progress, they drove toward the House without activating their lights or sirens and parked a short distance away, hoping to avoid alerting any intruders that the police had arrived. The street light nearest the House was not working, so the surrounding area was very dark. The officers approached the House and established a perimeter.

On the west side of the House, the officers found a broken window. The glass had been broken out to make a hole large enough for a man to enter without difficulty.

Meanwhile, the officers on the southeast corner of the House spotted Vernon walking up the street, coming toward the House. Vernon was walking low, as if he were trying to avoid being seen, and crept toward the west side of the house. Vernon walked right past the officers, failing to see them in the dark beside the House.

The officers announced themselves, and Vernon stopped, looked startled, and dropped the bag he was carrying. The end of a pry bar was sticking out of the bag. Vernon consented to a search of the bag, and the police found, in addition to the pry bar, a flashlight and a pipe cutter—the kind used for cutting copper pipe.³ Officer Beene arrested Vernon because there was “damage” in the bathroom of the House, and the officer saw that Vernon had a pipe cutter. When the officers asked Vernon what he was doing, he answered that he was on his way home from a friend's house.

Vernon resided at 305 North 13th Street in property owned by the Calvary Chapel Church, where Vernon had been attending church for the previous two years. The church building was in need of certain repairs, including plumbing repairs, so that it could be brought up to code. Vernon agreed to make those repairs as part of his rent.

Reverend Charles Rhine (“Reverend”) testified that he had known Vernon for about two years. The Reverend purchased several hundred dollars of plumbing and construction materials for Vernon, including copper pipes, copper caps, a compact tubing cutter, and other various tools. There was not a “pipe cutter” on any of the receipts. The Church paid for these items and would have paid for any materials that Vernon needed.

Richard Withrow was hired by the owners of the House to be the property's caretaker. He would go to the House approximately every thirty days. Sometimes he would just drive by, other times he would walk around the house. He had previously boarded up windows and doors on the home due to prior unrelated break-ins. In the past, lighting fixtures, posts from the stairway, and some of the door hardware had been stolen from the home.

On June 19th, during daylight hours, Withrow went to the House. He entered the home through the window. There was damage in the upstairs bathroom; he explained that the roof leaks, so there was a lot of plaster on the floor. In the first-floor bathroom, some plaster was on the sink, and there was a hole near the ceiling, exposing copper pipe. Above the sink in the downstairs bathroom, the ceiling was damaged, exposing copper pipes. He did not recall the damage in the bathrooms in the past and did not know when the damage occurred. He had not been inside of the house for at least two to six months before June 19th.

At the conclusion of the jury trial, Vernon was found guilty, and the jury recommended a fine to be determined by the court but no imprisonment. The court sentenced him to a $500 fine.

Analysis

In Point One, Vernon argues that the evidence presented at trial was legally insufficient to prove beyond a reasonable doubt that he was guilty of the offense of possession of burglar's tools. He attacks the sufficiency of the evidence in two respects: (1) the State failed to prove that a pipe cutter is a burglar's tool; Vernon insists that it cannot be so classified because it is not used to assist in forcibly entering a building; and (2) the State failed to prove that he intended to use the tools to facilitate a burglary; Vernon contends that he had a lawful purpose for possessing the tools and that the State's theory was implausible.

When reviewing the sufficiency of evidence, the Court gives great deference to the trier of fact. State v. Oliver, 293 S.W.3d 437, 444 (Mo. banc 2009). “Appellate review ‘is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found [Vernon] guilty beyond a reasonable doubt.’ ” Id. (quoting State v. Chaney, 967 S.W.2d 47, 52 (Mo. banc 1998)). “In applying this standard, ‘the Court accepts as true all evidence favorable to the state, including all favorable inferences drawn from the evidence and disregards all evidence and inferences to the contrary.’ ” Id. (quoting Chaney, 967 S.W.2d at 52).

Section 569.180 requires proof that: (1) possession by the defendant of tools mentioned; (2) adaptability, design, or common use of the tools for committing or facilitating offenses involving forcible entry into premises; and (3) circumstances evincing an intent to use or employ, or allow the same to be used or employed, in the commission of an unlawful forcible entry into a building or inhabitable structure, or knowing that the same are intended to be used. State v. Adkins, 678 S.W.2d 855, 860 (Mo.App. W.D.1984). Due process requires the State to prove each element of a crime beyond a reasonable doubt. State v. Bowman, 311 S.W.3d 341, 343 (Mo.App. W.D.2010).

Vernon does not dispute that he possessed a flashlight, pry bar, and a pipe cutter satisfying the first element of the offense. Vernon's argument is that the pipe cutter does not meet the specifications to be deemed a burglar's tool and fails to fulfill the second element of the test.

In prosecuting the crime of possessing burglar's tools, the State need not show that tools were especially designed for use by burglars. “[I]t is ... immaterial that [tools] were also designed and adapted for honest and lawful uses.” State v. Hefflin, 338 Mo. 236, 89 S.W.2d 938, 942–43 (1936). The second element is met so long as the tools are suitable for illegal purposes. Id. Vernon possessed various pry bars and wire cutters. “These tools while legitimate in and by themselves, can also be adapted for illegitimate use.” State v. Lake, 686 S.W.2d 19, 21 (Mo.App. E.D.1984). Because a pipe cutter can be used to further the crime (i.e. breaking into the House to steal copper pipe), the designation of the pipe cutter as a burglar's tool comports with the facts and the law. The police testimony as to numerous incidents of people breaking into empty houses to steal copper because of its high price supports the classification of the pipe-cutter as a burglar's tool, and such a conclusion was not erroneous by the trial court. Vernon's claim that the pipe-cutter cannot be classified as a burglar's tool because it is not used to assist in forcibly entering a building is refuted by the holding in Adkins.

The second element for possession of burglar's tools is met.

The third element of the charge is that Vernon had intended to use the tools he possessed as burglar's tools, or he had knowledge that some other person intended to use the tools, to make forcible entry into a building or inhabitable structure or room thereof. Lake, 686 S.W.2d at 20; Adkins, 678 S.W.2d at 860. “[T]he defendant's intent is most often proved by circumstantial evidence and may be inferred from surrounding facts or the act itself.” State v. Oliver, 293 S.W.3d 437, 446 (Mo. banc 2009).

Vernon claims that the evidence did not prove beyond a reasonable doubt that he intended to use the tools to commit an unlawful entry into the house. “This court will not weigh the evidence. Evidence that supports the verdict is accepted as true, and the State is accorded all favorable inferences therefrom. Adverse evidence and inferences are disregarded.” State v. Martin, 211 S.W.3d 648, 651 (Mo.App. W.D.2007) (internal citations omitted.) “The requisite mens rea is not shown by the mere possession of everyday tools which are not burglar's tools except in the hands of a burglar.”...