State v. West, WD

• Decision Date: 13 October 1981
• Docket Number: No. WD,WD
• Citation: 629 S.W.2d 429
• Parties: STATE of Missouri, Respondent, v. Kenneth E. WEST, Appellant. 32048.
• Court: Missouri Court of Appeals

Page 429

629 S.W.2d 429

STATE of Missouri, Respondent, v. Kenneth E. WEST, Appellant.

No. WD 32048.

Missouri Court of Appeals, Western District.

Oct. 13, 1981.

Motion for Rehearing and/or Transfer to Supreme Court

Overruled and Denied Nov.

17, 1981.

Application to Transfer Denied Jan. 18, 1982.

Patrick Beeman, Kansas City, for appellant.

John Ashcroft, Atty. Gen., John C. Reed, Asst. Atty. Gen., Jefferson City, for respondent.

Before TURNAGE, P. J., and PRITCHARD and CLARK, JJ.

CLARK, Judge.

Kenneth E. West was indicted for the offense of stealing and he was jury tried and convicted. He now appeals contending in his principal points that the evidence was insufficient to support the charge and the verdict. He also complains as to admission of improper evidence, the failure to give a defense tendered instruction and improper argument by the state. Affirmed.

At approximately 1:00 a. m. the night of April 14, 1979, the night shift manager at a retail automobile sales and service establishment in Clay County noticed unusual activity in the sales lot and called security guards. When the guards arrived, they heard a loud boom as if something had been dropped. Further inspection revealed a pickup truck with Wyandotte County, Kansas license plates next to which was a camper shell on the ground. The camper shell was the property of the sales agency. Near the truck was one Street, later identified as the owner of the pickup truck.

While Street was being questioned, the guards noticed the shadow of a person running between rows of parked vehicles on the lot and one guard gave chase. West was found crouched down behind a van. Inspection of Street's truck disclosed two large C-clamps which are commonly used to attach camper shells to pickup trucks. The camper shell found on the ground next to Street's truck was about eight feet long and weighed 250 to 300 pounds.

Before turning to the merits of the contentions on appeal, it is first necessary to observe that West's motion for new trial was filed out of time, an impediment with which West does not deal in his brief.

This case was tried and the verdict was returned May 19, 1980. At that time, West requested and the trial court granted thirty days in which to file West's new trial motion. The motion was not filed, however, until June 19, 1980, the thirty-first day, and was beyond the time extension granted by the court. Moreover, the trial court erred in its grant of additional time in excess of its jurisdiction. Rule 29.11(b) requires that a new trial motion be filed within fifteen days after the verdict is returned and limits the court to one extension for a period not to exceed ten days. Thus, the last day for West's motion to be filed was June 13, 1980, and his filing six days later was too late. Because the new trial motion was out of time, it preserves nothing for appellate review and we consider the cause only as to issues deemed plain error under Rules 29.12(b) and 30.20. State v. Rainwater, 602 S.W.2d 233 (Mo.App.1980).

We consider now West's claim that the state's evidence made no case against him for stealing, an issue of appropriate gravity to warrant consideration under the plain error doctrine. Because West himself did not testify and he offered no evidence, the facts previously summarized are drawn from testimony by the state's witnesses. That evidence and the inferences to be drawn therefrom are considered in the light most favorable to accord with the verdict the jury reached, the sufficiency of the evidence being that which would persuade reasonable jurors to find the defendant guilty as charged. State v. Wood, 596 S.W.2d 394, 400 (Mo. banc 1980), cert. denied, 449 U.S. 876, 101 S.Ct. 221, 66 L.Ed.2d 98 (1980).

The proof adduced here quite apparently was circumstantial in character and depended on inferences to link West to the abortive theft of the camper shell. West argues, first, that the evidence of his presence at the scene and attempted flight was insufficient to show affirmative participation in the crime and, second, that there was no evidence the camper shell had been appropriated as required to complete the offense of stealing.

In State v. Biddle, 599 S.W.2d 182 (Mo. banc 1980), the court re-examined the standards applicable to appellate review of a conviction based entirely on circumstantial evidence. Citing State v. Franco, 544 S.W.2d 533 (Mo. banc 1976), cert. denied, 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977), the court held that circumstantial evidence alone is sufficient to support a conviction only if the facts shown are consistent with each other and with the guilt of the defendant and are inconsistent with any reasonable hypothesis of innocence. Of course, the evidence need not be absolutely conclusive of guilt or demonstrate the impossibility of innocence. State v. Morgan, 592 S.W.2d 796, 805 (Mo. banc 1980), vacated on other grounds, 449 U.S. 809, 101 S.Ct. 56, 66 L.Ed.2d 12 (1980), on remand State v. Morgan, 612 S.W.2d 1 (Mo. banc 1981); State v. Lumsden, 589 S.W.2d 226, 227 (Mo. banc 1979), cert. denied, 446 U.S. 984, 100 S.Ct. 2967, 64 L.Ed.2d 841 (1980).

In this case, West was present at the scene of the theft and attempted to conceal himself from the security guards, an act equivalent to flight. While presence at the scene of a crime is not alone enough to support conviction, that element coupled with flight and suspicious conduct may give rise to circumstances from which guilt may be inferred. State v. Juralos, 611 S.W.2d 569 (Mo.App.1981).

In addition to West's presence nearby and his attempt to avoid detection, other facts bear significantly on West's involvement in the crime. He had no legitimate basis to be on the sales lot after midnight when the business was closed. Following a loud noise, as of something being...