State v. Washington
| Decision Date | 29 October 2002 |
| Docket Number | No. WD 60354.,WD 60354. |
| Citation | 92 S.W.3d 205 |
| Parties | STATE of Missouri, Respondent, v. Antwone WASHINGTON, Appellant. |
| Court | Missouri Court of Appeals |
Elizabeth U. Carlyle, Lee Summit, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Asst. Atty. Gen., Jefferson City, for respondent.
Before HAROLD L. LOWENSTEIN, P.J., JAMES M. SMART, JR., and THOMAS H. NEWTON, JJ.
Mr. Antwone Washington appeals from a judgment convicting him of first degree burglary and stealing. We reverse Mr. Washington's conviction for first degree burglary, enter a conviction for second degree burglary, and remand the case for resentencing. In all other respects, we affirm.
Mr. Washington's conviction stems from an incident at the residence of Ms. Mary Vannice. On August 18, 1999, Ms. Vannice's neighbor, Mr. Steve Nelson, observed an unfamiliar man walking toward the Vannices' open garage. Moments later, Mr. Nelson observed the same man walking away from the garage carrying a leaf blower and a weed trimmer. Mr. Nelson later identified that man as Mr. Washington. Police subsequently arrested Mr. Washington as a suspect in the Vannice case. Among other things, the State charged him with first degree burglary based upon the allegation that he entered the Vannice garage and removed the yard tools while Ms. Vannice and her teenage son were home. Mr. Washington denied being the burglar, attributing his arrest to a case of mistaken identification by Mr. Nelson.
At trial, Mr. Washington argued, among other things, that there was insufficient evidence to place him at the residence and that the State had not satisfied the elements for first degree burglary. He moved for judgment of acquittal at the close of the State's evidence and at the close of all evidence. The trial court denied these motions.
The trial court read several instructions to the jury. Instruction number 5, submitted by the State, set forth the elements of first-degree burglary. Instruction number 7, also submitted by the State, set forth the elements of stealing. The trial court likewise read the converse instructions that Mr. Washington submitted. Instruction number 6 was supposed to be Mr. Washington's converse of instruction number 5, the burglary instruction, but Mr. Washington inadvertently submitted a duplicate of his converse to the State's stealing instruction instead. As a result, the trial court never read a converse to the State's burglary instruction.
The jury convicted Mr. Washington of first-degree burglary and stealing, but acquitted him of first-degree tampering with a motor vehicle. Mr. Washington stipulated that he had a prior conviction and was a prior offender. The trial court sentenced him to five years in the Missouri Department of Corrections on the burglary conviction and to thirty-days in the Jackson County Department of Corrections on the stealing conviction, to run concurrently with time served in the Regimented Discipline Program under § 217.378. The court suspended execution of the sentence on the burglary conviction and placed Mr. Washington on probation. As a condition of probation, the trial court ordered Mr. Washington to complete the Regimented Discipline program. He now appeals.
In his first point, Mr. Washington argues that the trial court erred in overruling his motions for judgment of acquittal because the State did not establish that he burglarized an inhabitable structure while anyone else was present. In his second point, Mr. Washington requests plain error review of the trial court's exclusion of expert testimony pertaining to witness identification. In his third point, Mr. Washington requests plain error review of the trial court's failure to address allegedly improper comments made by the prosecution during closing argument. In his fourth and final point, Mr. Washington requests plain error review of the failure to submit a converse instruction on the burglary count.
Mr. Washington has preserved only one point of error for review: his claim that the trial court erred in denying his motions for judgment of acquittal because there was insufficient evidence to convict him of first degree burglary. When reviewing a challenge to the sufficiency of the evidence we "accept as true all evidence and its inferences in a light most favorable to the verdict, and we reject all contrary evidence and inferences." State v. Goddard, 34 S.W.3d 436, 438 (Mo.App. W.D.2000). "We only determine whether sufficient evidence was presented from which a reasonable juror could find the defendant guilty beyond a reasonable doubt, not whether the verdict was against the weight of the evidence." Id. The same standard applies to the review of a motion for a judgment of acquittal. Id.
Mr. Washington's first point requires us to consider the meaning of the term "inhabitable structure" as defined in § 569.010(2)1 and as used in § 569.160.1. To get at the meaning of this term in the context of our case, we must assess the General Assembly's intent "from the words used in the statute and give effect to that intent ..." Goddard, 34 S.W.3d at 438. In so doing, we examine the language used, according it its plain and ordinary meaning. State v. Williams, 24 S.W.3d 101, 115 (Mo.App. W.D.2000). Where the meaning is ambiguous or will lead to an illogical result, we look beyond the plain and ordinary meaning of the statute. Goddard, 34 S.W.3d at 438. In such a case, we construe the statute strictly against the State, "keeping in mind common sense and the evident statutory purpose." Id. at 438-39. See also State v. Northcutt, 598 S.W.2d 130, 132 (Mo. banc 1980) (when interpreting statutory provision, the court must consider purpose and object of that provision). With these principles to guide us, we turn to the contested terminology.
A person commits the crime of first degree burglary if he "knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein" and does so while "[t]here is present in the structure another person who is not a participant in the crime." § 569.160.1(3). Section 569.010(2) helpfully defines the term "inhabitable structure":
"Inhabitable structure" includes a ship, trailer, sleeping car, airplane, or other vehicle or structure: (a) Where any person lives or carries on business or other calling; or (b) Where people assemble for purposes of business, government, education, religion, entertainment or public transportation; or (c) Which is used for overnight accommodation of persons. Any such vehicle or structure is "inhabitable" regardless of whether a person is actually present[.]2
Section 569.010 does not define the term "building."
Although a person may commit first degree burglary in either a building or an inhabitable structure, the first-degree burglary charge submitted to the jury in this case did not refer to the burglary of a building. It referred only to the burglary of an inhabitable structure. By charging Mr. Washington with entering an inhabitable structure, the State assumed the burden of proving that the Vannice garage was such a structure. See State v. Yacub, 976 S.W.2d 452, 453 (Mo. banc 1998).
Mr. Washington argues that the State failed to meet its burden. He argues that the victim's garage by itself does not fall within the definition of an inhabitable structure because the State presented no evidence that anyone lived or slept in the garage, that anyone carried on a business there, or that anyone assembled there for any purpose, let alone those purposes set out in § 569.010(2). He further argues that the garage in this case is not part of the home to which it is attached because the garage and the living space in the home are not connected by an interior door.
We have no doubt that the home by itself qualifies as an inhabitable structure3 under the plain meaning of § 569.010(2)(a) and (c), both as a place where people live and as a place used for overnight accommodation. See also Yacub, 976 S.W.2d at 453 (); State v. Pulis, 822 S.W.2d 541, 544-45 (Mo.App. S.D.1992) ().
Conversely, we also have no doubt that the garage by itself fails to qualify as an inhabitable structure under the plain meaning of § 569.010(2). As Mr. Washington observes, there is no evidence that any of the defining activities set forth in § 569.010(2) — activities that make a structure inhabitable — ever occurred in the garage.
The question, then, is whether the garage qualifies as a part of the home's inhabitable structure under § 569.010(2). In this case, we think not.
Section 569.010(2) does not tell us whether a garage is part of a home's overall inhabitable structure. As applied to this case, the statute is ambiguous. However, it appears that one of the evident purposes behind the first-degree burglary statute is to increase the penalty for someone who puts an innocent in harm's way during a burglary. Cf. Northcutt, 598 S.W.2d at 132 (). Thus, the General Assembly has raised what otherwise would be second degree burglary to first degree burglary in cases where "Where is present in the structure another person who is not a participant in the crime." § 569.160.1(3).
Given this apparent purpose, the garage does not qualify as part of the home's inhabitable structure in this case. As the State's photographic exhibits undoubtedly...
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