State v. Weicht

• Decision Date: 16 August 2000
• Citation: 23 S.W.3d 922
• Parties: (Mo.App. S.D. 2000) State of Missouri, Plaintiff/Respondent, v. Samuel Weicht, Defendant/Appellant. 23155 0
• Court: Missouri Court of Appeals

23 S.W.3d 922 (Mo.App. S.D. 2000)

State of Missouri, Plaintiff/Respondent, v. Samuel Weicht, Defendant/Appellant.

23155

Missouri Court of Appeals Southern District

08/16/2000

Appeal From: Circuit Court of McDonald County, Hon. Timothy Perigo

Counsel for Appellant: Emmett D. Queener

Counsel for Respondent: Catherine Chatman

Opinion Summary: None

Parrish, P.J., and Montgomery, J., concur.

Kenneth W. Shrum, Judge

A jury convicted Samuel Weicht (Defendant) of burglary in the first degree, section 569.160, RSMo 1994.¹ The trial court sentenced Defendant to ten years in the Department of Corrections per the jury's recommendation. Defendant's appeal presents three questions:

First, is there sufficient evidence to support Defendant's conviction? We answer, "Yes."

Second, did the trial court err when it overruled Defendant's motion to suppress his statements and admitted them at trial over his objections? We answer, "No."

Third, does Defendant's claim of "plain error," on its face, establish substantial grounds for believing that manifest injustice or miscarriage of justice will result if we do not exercise our discretion to review for plain error? We answer, "No."

We affirm.

FACTS

Robert D. Cullers ("Robert") owned real estate in McDonald County where his son Jeffrey Cullers ("Jeffrey") lived until the summer of 1998. By September 1998, Jeffrey had moved out and was staying in Neosho. Even so, Jeffrey left most of his possessions in the house and checked on the house once or twice a week.

On September 14, 1998, Jeffrey checked on the house. He found some of his larger possessions missing, i.e., television, videocassette recorder, and air conditioner. Other possessions were scattered about the house, including items stacked near a door as if someone was preparing to remove them. That night, after unsuccessfully watching for the perpetrator to return, Jeffrey told his father (Robert) the items had been stolen from the house.

The next morning, Robert drove toward his house to see what had happened. As he approached, he saw a car parked on the road about one hundred and fifty feet from the house. Upon entering the house, Robert saw Defendant hiding behind a chair. He immediately left the house and began planning how to "catch him." First, he checked Defendant's car, but found no keys therein. Later, Defendant came out of the house, but ran off and hid when Robert pursued him. Thereon, Robert attempted to disable Defendant's car by slicing two tires on the car. Next, Robert went to a neighbor's house to call the sheriff's office.

As Robert drove back toward his house, he saw Defendant fleeing in his car despite the two flat tires. Robert pursued Defendant until both approached highway patrolmen, who were working a traffic stop on a nearby highway. Both Defendant and Robert pulled over behind the patrol car and started toward each other, "yelling and screaming." After they were separated, Robert told officer Prewitt about finding Defendant in his house. Defendant told the other officer, J.W. Krehbiel, he was in the area "looking for walnuts" when Robert slashed his tires, chased him, and crashed his truck into Defendant's car.

Ultimately, Defendant was arrested for the burglary at Robert's house. After his arrest, Defendant gave several statements to law enforcement personnel regarding this incident. Defendant's first statement was to Robert Wormington, narcotics agent with the Southwest Missouri Drug Task Force.² In it, Defendant wrote of his efforts to buy drugs. He said that on September 14, 1998, he wanted to "trade for $1000 of meth with Lucy Palmer." Accordingly, Defendant went to the "same spot" where he and Palmer usually met to do their drug business. While at that location, "some guy ran me off the road, slicing my tires."

Defendant gave his second and third statements to law enforcement personnel on September 21, 1998. In his second statement, Defendant told deputy sheriff McEntire he had gone "close to the Cullers['] residence" to make a drug deal with Palmer. Upon arriving, he saw Palmer and another person loading things from the house into the car. Palmer told Defendant they needed to leave, and she and her companion left. Thereon, Defendant heard a noise inside the Cullers' house and walked in to investigate. As he stood at the back door, an "old man showed up." Defendant ran to the barn and watched as the "old man" cut Defendant's car tires.

After Defendant wrote the above, McEntire told Defendant this was "a completely different story," and he "didn't believe the statement he had provided." At that point, Defendant grabbed the statement from McEntire and tore it up, saying he had lied but should have told the truth. McEntire asked Defendant if by tearing up the second written statement he "intended to invoke his rights and not speak with [McEntire] any longer." According to McEntire, Defendant answered, "No." Defendant then gave McEntire another statement.

In his third statement, Defendant told McEntire he went to Robert's house "to make a dope deal with Lucy Palmer, and . . . when he . . . arrived, they decided to clean the house out." After loading Palmer's car, she and another individual left, telling Defendant they would "be back in half an hour to make the dope deal with him." As Defendant was preparing to take items from the house to his car, he saw Robert come onto the scene.

Defendant attempted to have all of his statements kept from the jury, first by pre-trial motion to suppress and second, by timely objection at trial. In his motion to suppress, Defendant complained he was not "properly advised of his constitutional rights [per] Miranda v. Arizona," his statements "were not voluntary and were a result of mental or physical coercion and duress and threat," and the statements "were obtained by trick, promises, and false pretenses." The trial judge overruled the motion to suppress and Defendant's objections at trial.³

When required, additional facts are given as we discuss Defendant's points relied on.

DISCUSSION AND DECISION

Point I: Sufficiency of Evidence

Defendant's first point relied on urges reversal on the theory there was insufficient evidence to support his conviction. The basis for this argument is that the information and verdict-directing instruction described the burglarized house as owned by Jeffrey, whereas the evidence clearly showed the subject house was owned by Robert.⁴ Specifically, Robert testified Jeffrey had only lived in the house, and described the house to the highway patrol as "my house." Jeffrey testified he was only "in possession of this property where this incident occurred." Defendant insists his conviction must be reversed as there was no evidentiary support for one proposition hypothesized in the verdict-directing instruction, i.e., that Jeffrey owned the house in question.

When reviewing claims regarding the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict, accepting as true all of the state's evidence, giving the state the benefit of all inferences from it, and disregarding all evidence and inferences contrary to a finding of guilty. State v. Grim, 854 S.W.2d 403, 411[5] (Mo.banc 1993). "'The test is whether the evidence, so viewed, was sufficient to make a submissible case from which rational jurors could have found beyond a reasonable doubt that the defendant was guilty.'" State v. Hopkins, 841 S.W.2d 803, 804 (Mo.App. 1992) (citation omitted). Appellate courts do not act as a "super juror with veto powers," but give great deference to the trier of fact. Grim, 854 S.W.2d at 414; State v. Chaney, 967 S.W.2d 47, 52 (Mo.banc), cert. denied, 525 U.S. 1021, 119 S.Ct. 551, 142 L.Ed.2d 458 (1998).

The elements of burglary in the first degree are set forth in section 569.160:

"1. A person commits the crime of burglary in the first degree if he knowingly enters unlawfully . . . in a building or inhabitable structure for the purpose of committing a crime therein . . . .

"(3) There is present in the structure another person who is not a participant in the crime." (Emphasis added.)

In the argument part of Defendant's brief, he first claims that ownership is an element of the crime. Later, as he discusses State v. Fowler, 938 S.W.2d 894 (Mo.banc 1997), Defendant concedes "ownership of the building in question is not an element of the offense of burglary . . . ."

We agree Fowler, by analogy, teaches that identity of the owner of real estate is not an element of the crime of burglary. In Fowler, the information charged defendant with stealing property from Rhoda Blade, whereas the verdict director referred to property owned or in the possession of Lyle Blade. On appeal, the defendant complained he was prejudiced by the variance between the information and the instruction. In rejecting that argument, the Fowler court declared:

"The identity of the owner is not an element of the crime with which [the defendant] was charged. Instead, the purposes of alleging, proving, and submitting for a jury finding, the ownership of property stolen are to show the ownership is not in the accused, to give notice to the accused of the crime for which he stands charged, and to bar subsequent prosecution of the accused for the same offense. . . . In summary, the state must prove that the property is 'of another,' but the state need not prove that the property belongs to a particular person. section 570.030."

938 S.W.2d at 896-97[4] (citations omitted).

When burglary is charged, there are reasons similar to those given in Fowler why "ownership" of the subject premises must be proven, even though ownership is not an element of the crime of burglary. The first reason is to show the premises are not the dwelling of the accused. See State v. Rist, 456 S.W.2d 13, 15 (Mo. 1970); State v. Ford, 403 S.W.2d 611, 612 (Mo. 1966). The second reason is to identify the offense as to protect the accused from a second prosecution...