State v. Wade, s. 14354

• Decision Date: 30 April 1986
• Docket Number: Nos. 14354,14355,s. 14354
• Parties: STATE of Missouri, Respondent, v. Gregory WADE, Appellant.
• Court: Missouri Court of Appeals

Page 523

711 S.W.2d 523

STATE of Missouri, Respondent, v. Gregory WADE, Appellant.

Nos. 14354, 14355.

Missouri Court of Appeals,

Southern District,

Division Two.

April 30, 1986.

Motion for Rehearing or Transfer

Denied May 21, 1986.

Application to Transfer Denied July 15, 1986.

Susan L. Hogan, Columbia, for appellant.

William L. Webster, Atty. Gen., Paul LaRose, Asst. Atty. Gen., Jefferson City, for respondent.

CROW, Judge.

Gregory Wade ("defendant") was charged by information with the class C felony of burglary in the second degree, § 569.170, RSMo 1978, and was charged by another information with the class C felony of stealing a firearm, § 570.030.3(3)(d), RSMo Cum.Supp.1984. As demonstrated by the summary of the evidence, infra, both accusations arose from the same incident. The trial court consolidated the charges for trial, and defendant waived his right to trial by jury as to both charges. Rule 27.01(b), Missouri Rules of Criminal Procedure (16th ed. 1985). The trial court found defendant guilty of both charges, sentencing him to concurrent terms of two years' imprisonment. Defendant appeals from the burglary conviction (appeal 14355), and also from the stealing conviction (appeal 14354). His appeals were consolidated here, and he has filed one brief, raising two assignments of error.

The first assignment of error asserts the trial court wrongly denied defendant's motion for judgment of acquittal at the close of all the evidence, in that the evidence was insufficient to sustain a finding of guilty of burglary or a finding of guilty of stealing. Defendant's other assignment of error asserts the trial court wrongly denied defendant's application for a continuance, which defendant needed in order to secure the attendance of a vital witness. We address defendant's first point first.

Under Rule 27.01(b), supra, the trial court's findings have the force and effect of a jury verdict; consequently, our review is as though verdicts of guilty had been returned against defendant by a jury. State v. Giffin, 640 S.W.2d 128, 130 (Mo.1982); State v. Thornton, 704 S.W.2d 251, 252 (Mo.App.1986). In determining the sufficiency of the evidence, we accept as true all evidence in the record tending to prove defendant's guilt, together with inferences favorable to the State that can reasonably be drawn therefrom, and we disregard all contrary evidence and inferences. Giffin, 640 S.W.2d at 130; Thornton, 704 S.W.2d at 252. The test is whether the evidence, so viewed, is such that a rational trier of fact could have found beyond a reasonable doubt that defendant was guilty. State v. Bonuchi, 636 S.W.2d 338, 340 (Mo. banc 1982); cert. denied, 459 U.S. 1211, 103 S.Ct. 1206, 75 L.Ed.2d 446 (1983); Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791-92, 61 L.Ed.2d 560, 576-77 (1979).

Viewed in accordance with those precepts, the evidence establishes that about 6:30 p.m., Saturday, December 15, 1984, Pernell Barwick and his wife left their home, 2104 Birkhead Road, in Poplar Bluff, to attend a Christmas banquet hosted by Barwick's employer, a local bank. The Barwicks locked their home, leaving their "outside floodlights," back porch light and carport light turned on.

Birkhead Road runs generally from west-northwest to east-southeast. The Barwick home is situated on the south side of Birkhead Road, and faces generally northeast by north. Proceeding southeasterly on Birkhead Road from the Barwick property, the next lot on the south side of Birkhead is 2102 Birkhead, on which is situated the home of J.P. and Mary Ellen McLane. Proceeding southeasterly on Birkhead from the McLane property, the next lot on the south side of Birkhead is occupied by the Miles Hays residence. The east side of the Hays property abuts Euel Road, which runs generally north and south. Birkhead Road, passing in front of the Hays property, intersects Euel Road, but does not extend east of Euel.

Shortly after 7:00 p.m., December 15, Mary Ellen McLane looked out the back door of her home and observed two people "[m]oving very rapidly through my back yard." Her yard was illuminated by the lights from the Barwick property, and by a "large security light" at the corner between the McLane property and the Hays property. The backyard of the McLane home abuts the backyards of two residences lying generally south by southwest of the McLane property. Those two houses "also had lights on outside."

The lights enabled Mrs. McLane to see that the two individuals were carrying "a big white sack type thing and also a slender item." As the slender item "caught the light," Mrs. McLane noted it was shiny. Mrs. McLane opined that this object "could have been the barrel of a gun or numerous items." The white bag, according to Mrs. McLane, could have been a sheet or a pillowcase.

As the two individuals, heading southeast toward the Hays property, passed beneath one of the security lights, Mrs. McLane noticed they both were black, an she assumed both were males by reason of their clothing. Both were wearing trousers, and one was wearing "a sock cap type of thing." The clothing of the other was light colored.

Mrs. McLane, aware that no black people lived in the neighborhood, telephoned the police.

About 7:15 p.m., December 15, Poplar Bluff police officers Larry Baxter and Roy Lowe, in separate patrol cars, were on a parking lot along highway 67 a short distance from the subdivision where the Barwick, McLane, and Hays home are situated. The officers received a dispatch about the activity in the subdivision, and immediately started in that direction.

Baxter explained that the subdivision lies west of the "Wal-Mart shopping mall area." An aerial photograph shows that Euel Road lies west of and parallel to the rear (west) property line of the mall, and that a strip of land lies between Euel and the mall boundary. This strip is divided into lots, lying side by side from south to north. The lots face Euel, and back up to the mall boundary. Some of the lots have houses; others are vacant. Immediately south of the mall, on land abutting the rear line of the two southernmost lots (both of which are unimproved), is the Oak Haven Women's Clinic.

Baxter, coming south on highway 67, drove into the Women's Clinic parking lot. Lowe turned into the subdivision and drove south to the corner of Lurlyn Road and Birkhead Road, which is the west terminus of Birkhead. There, Lowe turned east on Birkhead and drove past the Barwick, McLane, and Hays residences to Euel Road. Lowe turned south on Euel, and heard "[m]ovement in the wooded area," the vacant lots between Euel and the rear of the Women's Clinic. At this point, Lowe was about 500 feet from the McLane residence, and some 200 to 250 feet west of the Women's Clinic.

Lowe radioed Baxter that he (Lowe) had heard movement. Lowe directed his vehicle's "alley lights" into the area, and a few seconds later Baxter saw two black males running north behind houses situated on the east side of Euel Road. Baxter estimated the distance from his position to the duo as about 200 feet. Neither individual was carrying anything.

Baxter radioed this information to headquarters, then drove north to the rear of the shopping center, stopping behind the "P & N Hirsch Store." Lowe, who had overheard Baxter's radio transmission, started toward the rear of the Wal-Mart store.

Baxter, exiting his vehicle, heard a noise about 40 feet to his north. Baxter explained that an eight-foot-high chain link fence runs along the west boundary of the mall, separating it from the subdivision. Along the fence, there are gaps at the bottom large enough for humans to crawl through. Baxter realized that the noise was the fence rattling. Baxter directed his flashlight toward the noise, and saw the two black males running north. He radioed this information to headquarters, then began pursuing the duo on foot.

Baxter overtook the pair at the north end of the rear of the Wal-Mart store, and ordered them to place their hands along the wall. One of them, later identified as William H. Thomas, complied. The other, later identified as defendant, "turned around and attempted to and then he turned and took off running again."

About that time, Lowe arrived and started after defendant while Baxter was handcuffing Thomas.

Defendant, pursued by Lowe, ran around a shoe store, where he was spotted by Sergeant Ricky Price of the Butler County sheriff's office, who had arrived at the scene with another deputy sheriff. Price joined the chase, overtook defendant, and subdued him. Defendant was wearing "a dark blue sock cap," "a blue pullover type sweatshirt," a white shirt, and blue jeans.

Thomas was wearing gloves, and was clad in blue trousers, a light colored shirt, and a light colored jacket.

Both suspects were taken to the police station.

Officers Baxter and Lowe, remaining at the scene, promptly returned to the site where Baxter had overtaken the suspects behind the Wal-Mart store. From there, the officers "backtracked," retracing the route the suspects had taken in reaching that point. When the officers arrived at the location where Lowe had first heard the noise--the wooded area between Euel Road and the Women's Clinic--Baxter found two white bags lying on the ground beside a tree. A shotgun lay next to the bags. Baxter estimated the distance from the point where the fence had been rattled to the point where the bags and shotgun lay as "[p]robably three hundred fifty feet, maybe."

The shotgun and bags were taken to police headquarters, where the bags' contents were examined. Among the contents were several pens bearing the name of the bank where Barwick was employed, together with a Christmas present to Barwick from a bank secretary, the wife of a city official.

The secretary and her husband were attending the same banquet as the Barwicks. Police contacted the secretary's husband at the banquet, and he informed the Barwicks that their home had been burglarized. The...