State v. Weber
| Decision Date | 23 July 1991 |
| Docket Number | No. 58426,58426 |
| Citation | 814 S.W.2d 298 |
| Parties | STATE of Missouri, Respondent, v. Larry E. WEBER, Appellant. |
| Court | Missouri Court of Appeals |
Brad B. Baker, Columbia, for appellant.
William L. Webster, Atty. Gen., Barbara J. Wood, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant was convicted by a jury of burglary, first degree, § 569.010 RSMo 1986, 1 and was sentenced to five years imprisonment. He appeals. We affirm.
A person commits the crime of first degree burglary if he unlawfully "enters ... a building or inhabitable structure for the purpose of committing a crime", while a non-participant in the crime is present in the structure. § 569.160.1(3); e.g. State v. Hicks, 716 S.W.2d 387, 391 (Mo.App.1986). Defendant was charged and convicted of unlawfully entering the female victim's home "for the purpose of committing rape." Defendant contends the state failed to make a submissible case.
To resolve the issue of submissibility, we accept as true all evidence and permissible inferences which support the verdict, reject all contrary evidence and inferences and determine whether the evidence so viewed is sufficient for reasonable persons to find the defendant guilty beyond a reasonable doubt. State v. Sinner, 779 S.W.2d 690, 695 (Mo.App.1989). If the state's case was in part based upon circumstantial evidence, that evidence must be consistent with guilt and inconsistent with any reasonable theory of innocence. Id.
An essential element of the burglary offense here was defendant's intent to commit rape when he entered the victim's home. As in most cases, the state proved defendant's intent by circumstantial evidence. He contends this circumstantial evidence was insufficient to make a submissible case on intent. We disagree.
One night in April, 1989, the victim and her daughter were at home watching television. About 10:00 p.m., defendant, who had previously dated the victim, phoned her and asked to come over to see her. She said no and hung up. The victim went to bed about 12:30 a.m. About 2:30 a.m., she awoke to the sound of someone banging on her back door. Realizing the door was being smashed or kicked-in, the victim grabbed a .22 caliber pistol she kept on her water bed. Defendant kicked in the back door, and, when he entered the victim's bedroom, the victim shot him in the chest.
Defendant shoved the victim on to her water bed and pinned her to it by lying on top of her. The victim struggled but was unable to push defendant off her. She tried to convince him that she should phone for help for him, but he refused. The victim screamed for her daughter, who then came into the victim's bedroom, but defendant ordered the daughter back into her own bedroom.
Subsequently, defendant twice accompanied the victim to her daughter's bedroom so that the victim could try to calm her daughter. Defendant Each time they returned to the victim's water bed, he would lie on top of her. She hoped he "would pass out or go to sleep." He did neither. He did allow her to go to her daughter's bedroom again. This time he did not accompany her, but watched her all the time.
When she returned, he said, "Well, it's time that I get what I came for." Then, he "shoved" the victim on to the bed, undid his jeans and exposed his penis. She "fought ... hit ... struggled ... and it didn't seem to phase him." He then had intercourse with her without her consent. Subsequently, she was able to phone for the police.
The victim admitted she had dated defendant and had engaged in sexual relations with him prior to this incident. With this background, defendant contends that the only probative evidence of defendant's intent was his statement, immediately before intercourse, that "it's time that I get what I came for." To defendant, this evidence, and the scenario that took place before the statement, "equally supports two inconsistent inferences": (1) defendant entered the victim's home to commit rape, or (2) he entered the home to have consensual sexual intercourse.
Defendant's second inference is not reasonable. We apply the circumstantial evidence rule realistically. The circumstances need not conclusively show guilt nor demonstrate the impossibility of innocence. E.g. State v. Morgan, 592 S.W.2d 796, 805 (Mo. banc 1980). Without detailing all the facts again, we focus on one: defendant kicked in the victim's door. Defendant's kicking in a door to reach the victim does not reasonably indicate a desire to have consensual sexual intercourse; the only reasonable inference was an intent to have sexual intercourse at defendant's command.
Defendant next contends the trial court erred in allowing the prosecutor to ask defendant, on cross-examination, if he had ever been convicted of either burglary or assaulting a police officer. The prosecutor, defendant contends, lacked a good faith basis for this inquiry and, thus, the jury was improperly allowed to consider defendant's suggested criminal history as evidence of the crime now charged. We disagree.
During direct examination, the following exchange between defendant and his counsel took place:
Then, on cross-examination, the following exchange between defendant and the prosecutor took place:
Q: (By prosecuting attorney): And, [you] kind of glossed over this, why don't you tell the jury exactly what some of these brushes with the law is you've had?
. . . . .
Prosecuting attorney: Your Honor, they glossed over the brushes with the law. I think the jury is entitled to hear every conviction he's had.
[Defendant]: Would you mind repeating it, please?
The prosecutor then switched to another subject.
Defendant raised this "lack of good faith" argument for the first time in his motion for a new trial. The record does not show whether defendant supported that assertion of error in that motion with any evidence.
On appeal, defendant attempts to support this argument by an affidavit of his trial counsel in which his counsel states the prosecutor, at trial, possessed a printout of defendant's criminal record showing "no previous convictions." (Appendix A) We are, however, precluded from considering an affidavit which was not part of the record before the trial court. State v. Rowling, 687 S.W.2d 246, 248 (Mo.App.1985); State v. Atkins, 549 S.W.2d 927, 930-931 (Mo.App.1977). This preclusion is particularly meaningful here. The affidavit is an attack by one counsel against the integrity of opposing counsel without any supporting documentary evidence.
Moreover, the record before the trial court does not show the prosecutor lacked good faith in this cross-examination. A defendant may be cross-examined about his prior convictions for the purpose of impeaching his credibility. § 491.050; State v. Giffin, 640 S.W.2d 128, 132 (Mo.1982); State v. Lloyd, 750 S.W.2d 589, 593 (Mo.App.1988). And, proof of the prior convictions "may be either by the record or by [the defendant's] own cross-examination, ..., and the party cross-examining shall not be concluded by his answer." § 491.050; State v. Shisler, 752 S.W.2d 447, 451 (Mo.App.1988).
Here, defendant himself "opened the door" for cross-examination about prior convictions when, on direct, he testified he had prior "brushes with the law." See, e.g. State v. Elbert, 471 S.W.2d 170, 172 (Mo.1971). When given the chance on cross-examination to deny a conviction for burglary or assaulting a police officer, defendant did not do so; rather, he testified he did not know of any conviction of burglary and did not remember if he had been convicted of assaulting a police officer.
To support his argument, defendant relies on State v. Amos, 490 S.W.2d 328 (Mo.App.1972). His reliance is misplaced.
In Amos, after the defendant expressly and specifically denied he had any prior felony convictions, the prosecutor continued to inquire about possible prior convictions, with the defendant responding each time: "I have never been convicted." Id. at 329. Then, the prosecutor, "obviously consulting some offense record", asked the...
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State ex rel. Callahan v. Collins, WD
...judicial notice of the file if it is physically before it." State v. Hurst, 845 S.W.2d 669, 670 (Mo.App.1993)(quoting State v. Weber, 814 S.W.2d 298, 304 (Mo.App.1991)). In light of the trial court's finding that Collins was convicted of the felonies, it is apparent that the court file cont......
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State v. Johnson, No. ED 83773 (MO 10/12/2004)
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