State v. Willis, WD

• Decision Date: 20 December 1988
• Docket Number: No. WD,WD
• Citation: 764 S.W.2d 678
• Parties: STATE of Missouri, Respondent, v. Derrick S. WILLIS, Appellant. 40096.
• Court: Missouri Court of Appeals

Page 678

764 S.W.2d 678

STATE of Missouri, Respondent, v. Derrick S. WILLIS, Appellant.

No. WD 40096.

Missouri Court of Appeals Western District.

Dec. 20, 1988.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Jan. 31, 1989.

Application to Transfer Denied March 14, 1989.

David S. Durbin, Asst. Public Defender, Kansas City, for appellant.

Robert Frager, Asst. Pros. Atty., Kansas City, for respondent.

Before SHANGLER, P.J., and CLARK and NUGENT, JJ.

CLARK, Judge.

Derrick S. Willis was tried by a jury and was convicted of the offense of first degree trespass. On this appeal, he raises five points of alleged trial error among which is the claim that the evidence was insufficient to support submission of the case. We therefore turn first to a review of the evidence.

Accepting as true all evidence, whether circumstantial or direct, tending to prove defendant guilty, together with all reasonable inferences supportive of the verdict, ¹ the following were the facts upon which the jury could have found appellant guilty of trespass.

The evening of February 12, 1987, appellant and his companion, Ronnie Jett, came to the dwelling house at 6229 East 16th Street in Kansas City and, after opening the gate, entered the fenced front yard. The premises were the residence of Richard Norris and George Nickerson. Present in the house at that time were Norris, Nickerson and a guest, Raymond Younce. Appellant and Jett continued on the way to the front door where their knock summoned Norris who had also been alerted by the barking of Nickerson's dog. When Norris opened the door, appellant and Jett entered and immediately thereafter, a fight ensued with the result that appellant and Jett were severely beaten.

Appellant and Jett were strangers to Norris, Nickerson and Younce. After he had been subdued, appellant was questioned by Norris, Nickerson and Younce about his objective. Appellant said he had been sent there to rob the occupants. Appellant denied this and contended in his defense that he and Jett were responding to an invitation to a party and had become confused about the address.

The information in this case charged appellant with the offense of first degree burglary. As applicable to this case, the crime of burglary in the first degree is committed when the accused knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein and when there is present in the structure another person who is not a participant in the crime. Section 569.160, RSMo 1986. In contrast, the crime of trespass in the first degree is committed when the accused knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure or upon real property. (Emphasis added). Entering or remaining upon real property does not constitute trespass unless the property is fenced or notice of the exclusion of intruders is supplied by actual communication or posting. Section 569.140, RSMo 1986.

The factual elements of the proof in this case which appellant contests center on the argument that appellant was not shown to have entered the Norris residence unlawfully but rather at the implied invitation of Norris when he opened the door and held it wide without protest as appellant and Jett entered. The contention is irrelevant. The undisputed evidence was that the front yard of the premises was fenced, a sign was posted to beware of the dog and appellant himself opened the gate in the fence to gain admittance to the yard. Whatever the jury's view may have been of testimony as to events which followed, the proof was adequate to support conviction of first degree trespass. Appellant knowingly and unlawfully entered upon real property which was fenced and which was posted with a sign intended to discourage intruders. Appellant's first point is denied.

In his second point, appellant complains of the use of the words "firmly convinced" in the jury instructions patterned after MAI-CR3rd 300.02 and 302.04. The contention is that this language tends to reduce the state's burden of proof to establish the guilt of the accused beyond a reasonable doubt. This same argument has been regularly advanced and uniformly rejected in numerous cases all of which approve the language of the pattern instructions. State v. Guinan, 732 S.W.2d 174, 177-78 (Mo. banc), cert. denied, 484 U.S. 933, 108 S.Ct. 308, 98 L.Ed.2d 266 (1987); State v. Sandles, 740 S.W.2d 169, 175 (Mo. banc 1987), cert. denied, 485 U.S. 993, 108 S.Ct. 1303, 99 L.Ed.2d 513 (1988). The point is denied.

The third claim of error is based upon the closing portion of the prosecuting attorney's argument to the jury. Responding to defense counsel's closing argument, the prosecutor said:

He talked about the illogicalness of these two men going in there without a weapon. Well, folks, criminals are not smart. Most of them aren't. Why should they get credit because they didn't plan it out right? They were drunk; they were out that night looking for trouble. Isn't it funny how certain people always seem to end up in the middle of things and in trouble?

Appellant notes that because he testified, the jury was aware he had previous convictions for possession of marijuana, stealing from the person, first degree burglary and exhibiting a deadly weapon. He says the argument quoted above suggested he must be guilty of the current offense because he had been in trouble before. Such an argument is, as appellant says, clearly improper.

A trial court has broad discretion to control closing arguments and a wide latitude is to be accorded counsel in his summary. State v. Bryant, 741 S.W.2d 797, 799 (Mo.App.1987). Only when the argument is plainly unwarranted and has a prejudicial effect on the jury's determination will an abuse of the trial court's discretion be found. State v. Fogle, 740 S.W.2d 217, 226 (Mo.App.1987). When the complained of remarks come in the rebuttal portion of argument by the state, the court may consider whether the argument was invited. A prosecuting attorney may go further by way of retaliation in answering the argument of defense counsel than would be permitted in the first instance. State v. Murphy, 739 S.W.2d 565, 570 (Mo.App.1987).

In the present case, defense counsel made the following argument to the jury:

These guys aren't perfect. They have been in trouble before. But Instructions Nos. 16 and 17 tell you that you can't judge them because of their past. They paid for what they have done before. They made mistakes when they were younger. It makes you wonder if that ain't the reason they are here.

The thrust of the defense argument was that appellant and his companion were bumblers and were the victims of circumstances, having unluckily selected the house to enter where three young men were armed and ready to assault them. The argument also suggested that appellant's prior criminal record was a factor in the decision to prosecute. The state's argument was retaliatory and appropriate to draw to the jury's attention to the fallacy in the claim that appellant should be exonerated because he was inept. It was also appropriate to suggest that appellant's problems, including his prior convictions, were the consequences of his own...