State v. Williams

• Decision Date: 24 March 2000
• Citation: 18 S.W.3d 425
• Parties: (Mo.App. S.D. 2000) State of Missouri, Respondent, v. Dennis L. Williams, Appellant. 22994 0
• Court: Missouri Court of Appeals

18 S.W.3d 425 (Mo.App. S.D. 2000)

State of Missouri, Respondent, v. Dennis L. Williams, Appellant.

22994

Missouri Court of Appeals Southern District

03/24/2000

Appeal From: Circuit Court of Stone County, Hon. J. Edward Sweeney

Counsel for Appellant: Marc L. Edmondson

Counsel for Respondent: Krista D. Boston

Opinion Summary: None

Parrish and Shrum, JJ., concur.

John C. Crow, Presiding Judge

Appellant, tried as a persistent offender, section 558.016.3, RSMo 1994, was found guilty by a jury of the class C felony of stealing cattle, section 570.030, RSMo Cum. Supp. 1997.¹ The trial court sentenced Appellant to sixteen years' imprisonment.

Seeking reversal, Appellant claims in this appeal that the evidence was insufficient to support the verdict, that certain evidence was erroneously received, and that the verdict-directing instruction was flawed in three respects.

This court first addresses Appellant's fifth point -- his challenge to the sufficiency of the proof. Appellant maintains the trial court erred in denying Appellant's motion for judgment of acquittal at the close of all the evidence in that "the State failed to prove Appellant, either as a principal or an accomplice, committed the crime of stealing as alleged in the Second Amended Felony Information."

The information referred to by Appellant averred, inter alia, that on or about February 18 or 19, 1998, he, acting alone or in concert with another, stole "nine head of Charolais cows and one Angus cow" owned by Gary Harshaw.

The standard for appellate review of the sufficiency of the evidence to support a criminal conviction is set forth in State v. Grim, 854 S.W.2d 403 (Mo. banc 1993), cert. denied, 510 U.S. 997, 114 S.Ct. 562, 126 L.Ed.2d 462 (1993). The appellate court accepts as true all evidence favorable to the State, including all favorable inferences therefrom, and disregards all evidence and inferences to the contrary. Id., 854 S.W.2d at 405. Appellate review is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the accused guilty beyond a reasonable doubt. Id. That standard applies where -- as here -- a conviction rests on circumstantial evidence. Id. at 405-07[2]. In applying the standard, an appellate court neither weighs the evidence nor determines any witness's credibility. State v. Watson, 968 S.W.2d 249, 252[1] (Mo.App. S.D. 1998).

Viewed according to the above standard, the evidence established that Gary Harshaw, a farmer, bought twenty-two cattle (eleven cow-calf pairs) in January 1998. Ten pairs were Charolais; one pair was black Angus. Harshaw paid $850 for each pair.

Harshaw placed the cattle in a pasture owned by his mother in western Lawrence County, about five miles from his home. He went to the pasture to check the cattle every two or three days.

Just before sundown February 18, 1998, Harshaw went to the pasture and fed the cattle, a chore that required ten to fifteen minutes. All twenty-two cattle were there.

On February 19, 1998, Allen Fryar was employed at North Arkansas Livestock Auction ("NALA") in Green Forest, Arkansas, as a "yard man and barn man." Fryar lived "behind the sale barn" in a house NALA furnished him.

About 5:30 a.m. that day -- some twelve to thirteen hours after Harshaw fed and counted his cattle -- Fryar walked from his house to a cafe in "the front of the barn" to eat breakfast. As he strolled "through the middle of the barn," he saw a pickup with an attached livestock trailer on "the east side of the parking lot." He was unable to see whether anyone was in the pickup, and he did not approach it to investigate.

Later, after finishing breakfast, Fryar saw Cumy Knight, a "write-up person" employed by NALA, unloading cattle from the trailer.

Knight arrived for work about 6:55 a.m. that day. She saw the pickup and trailer "waiting to be serviced." Recalling the incident at trial, Knight testified:

"I parked my pickup and got out and they pulled up and a man got out and so we had to open up the gate. So we opened the gate and . . . this man drove through and the man that got out helped me set up the gate behind them, because I was the only one there, there wasn't my tagger or my gate opener wasn't there yet, because I was the first one there that morning."

Asked whether any other customers were waiting to unload cattle, Knight answered, "Nobody was there but just this trailer[.]"

The man who assisted Knight with the gate had exited the pickup on the "passenger side." This opinion henceforth refers to him as "the passenger." The driver remained inside the pickup. Knight "didn't pay any attention to [the driver]."

Asked whether she could observe the passenger's "features," Knight responded:

"We was working right there together. He helped me set up the gates and we unloaded . . . the cows first. I set my gates up . . . so I would have the chute open and then we had the gate shut behind them. Then we undid the trailer gate and let the cows out, ran them in and at the time I asked him . . . if he knew the pairs on them and he said, No, he didn't.[²] So I thought . . . I will pen the cows by themselves . . . and pen the calves by themselves and so he waited for me to open a gate up in the barn and I opened the gate and then I opened the gate to the chute and we ran the cows into this pen and then I shut the gate on them. And then we went back there and opened up the gate that was inside that had the calves penned in the front and we let them out, ran them up there and put them in another pen right by the side of the cows."

Knight avowed there were nine Charolais cows, nine Charolais calves, one black cow, and one black calf.

Knight asked the passenger "who he wanted the check made to." He handed her a piece of paper bearing the name Ruby Williams and an address of Post Office Box 663, Seymour, Missouri 65746.

Asked how long she spent with the passenger, Knight replied:

"I would say 20 to 30 minutes . . . I don't know for sure . . . I didn't time myself because I was doing the job . . . that most of the time other people help me do so it would take me longer . . . to do it by myself than it would have if I would have had help."

After the cattle were unloaded, Fryar saw the pickup and trailer depart, heading west toward Berryville.

About 8:30 a.m. that day (February 19), Harshaw received a call from his brother, who told Harshaw he "didn't have no cows left."

Harshaw went to the pasture; he found only one cow and one calf. He called the "sheriff's department," then called a stockyard in Joplin. Someone there gave him the names of other "sale barns," including NALA.

Harshaw phoned NALA and described his missing cattle. According to Harshaw, the person to whom he spoke said, "[T]hey are here, sir."

Rick Abney, an investigator with the Lawrence County Sheriff's office, drove to NALA, accompanied by Harshaw. The journey, according to Harshaw, was "over 100 [miles] or in that neighborhood." Upon arrival, Harshaw identified his cows and calves.

With permission of an officer of the "Arkansas State Police" and the cooperation of NALA, Abney arranged for Harshaw's cattle to be offered for sale at auction. Abney testified:

"[W]e ran [Harshaw's] cattle through for the simple fact, even though the person that brought the cattle said mail the check, we thought . . . a lot of times people show back up to pick up the check instead of mailing it. . . . We will wait and have [Harshaw's] cattle sold last and we made sure that the bid price was run up to make sure nobody else bought the cattle. . . . [T]hat was the idea to sell the cattle to produce the dollar amount and to see if someone would show up for the check."

After the pretended sale, no one came forward to claim the proceeds. Harshaw "paid a man and we hauled [the cattle] home."

The next day (February 20, 1998), NALA's bookkeeper issued a check payable to Ruby Williams and mailed it to Post Office Box 663, Seymour, Missouri. The mailing was sent "certified with a return."

Jess Croney is postmaster at Seymour, Missouri. On January 22, 1998 -- about four weeks before Harshaw's cattle were stolen -- Ruby Williams, whom Croney had known several years, appeared at the Seymour Post Office. Ruby³ was accompanied by a man with whom Croney was unacquainted.

The man told Croney he wanted to rent a post office box. Croney had the man fill out a written application. The man wrote "Dennis L. Williams" on it.

Because Croney did not know the man, Croney asked to see his driver's license. The man showed Croney a Missouri driver's license bearing the name Dennis L. Williams and an address of Route 2, Stockton, Missouri 65785.

At trial, Appellant's driver's license was received in evidence. It displayed the same name, address and driver's license number as the one shown Croney.

Croney rented the man post office box 663 and issued him a single key. However, Croney explained that anyone who arrived at the post office with the key could open the box. The rental agreement allowed Ruby to "receive mail through the box."

Corporal Roger Renken of the Missouri State Highway Patrol was one of several investigators looking into "a rash of cattle thefts in southwest Missouri" in February 1998.

On February 23, 1998, Renken and Abney established surveillance of the Seymour Post Office to see who would pick up the certified mailing from NALA to Ruby. Renken explained:

"I was waiting for someone to pick the letter up. It was a registered piece of mail and they would have been required to bring a receipt . . . to the clerk to receive [that] piece of mail."

About 11:00 a.m., a man entered the post office and removed the "yellow slip" from box 663. The slip had to be presented to a postal clerk to obtain the NALA mailing. The man left the post office with the slip. Renken did not follow him because, said Renken:

"I didn't want to lose a surveillance team because the target of our surveillance wasn't...