State v. Winkelmann
| Decision Date | 01 November 1988 |
| Docket Number | No. 54109,54109 |
| Citation | 761 S.W.2d 702 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Richard R. WINKELMANN, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Charles Clifford Schwartz, Jr., Clayton, for defendant-appellant.
William L. Webster, Atty. Gen., Carrie Diane Francke, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
This case presents the novel issue of whether, while an action for dissolution is pending, a husband who is separated from his wife, can be charged and convicted of stealing his spouse's separately-owned property. Under the specific facts of this case, we hold that he can and affirm the judgment.
This is an appeal by defendant-appellant, Richard R. Winkelmann, from a judgment and sentence entered by the circuit court of St. Louis County on December 7, 1987, imposing fines of $1,000 for the misdemeanor offense of stealing less than $150.00 and $5,000 for the felony offense of stealing a motor vehicle. Section 570.030.3(1), (3)(a), (k). 1
On August 30, 1986, appellant, Winkelmann, was indicted by the grand jury of St. Louis County for (1) the offense of stealing a set of car keys on July 17, 1986 at 2900 Telegraph Road at 7:15 p.m., from his estranged wife, Janet C. Winkelmann--a misdemeanor; (2) the offense of stealing a motor vehicle "possessed" by Janet Winkelmann at 8:20 p.m. on July 17, 1986 at 4055 Tarragona Drive--a felony; and (3) the offense of "property damage" in the second degree, a class B misdemeanor on the same date. On October 21, 1987, the state nolle prossed the property damage count, Count III, and the defendant was tried on the other two counts.
On October 21, 1987, the cause was tried before a jury. Prior to trial and at the time the state entered its nolle prosequi as to Count III, the state requested a protective order seeking to exclude "all" evidence and testimony relating to an incident on November 8, 1986 wherein the defendant-appellant was shot by his wife, Janet, "while breaking into [the] victim's house." It appears that on that date that Janet shot the appellant "in the face three times with a 20 gauge shotgun."
Argument was had on the motion for a protective order. Defense counsel argued that there was a substantial dispute "over who's [sic] property this is, and ... if [appellant] feels he has a right to the ownership or is an owner, that issue ... is interjected ..." The court, however, referred to the specific incidents of stealing which took place on July 17, 1986 as involving a "domestic situation" and that the "evidence" of the shooting which took place several months later was irrelevant. The court sustained the protective order, and the trial on the two counts of stealing proceeded.
The jury could reasonably find the following.
Janet C. Winkelmann, the estranged and separated wife of appellant, had been married to one Joseph Maurer for approximately eighteen years. Three children were born of that marriage. That marriage ended when Mr. Maurer died in 1980. On March 12, 1983, Janet married Richard Winkelmann after they met in an economics class some time earlier in August, 1982. They were married and lived together until April, 1986. Divorce proceedings were brought, but at the time of the incidents for which appellant is charged, July 17, 1986, the parties were still married since the divorce proceedings were still pending.
During the course of Janet's marriage to Maurer, she purchased a "1978 Pontiac Bonneville" and the title to the automobile was titled in their joint names. After Maurer's death, the vehicle was titled in her name. It was so titled at the time she married appellant.
Janet Winkelmann testified that in March, 1978, she and her former husband, Maurer, purchased the 1978 green and white Pontiac Bonneville. She testified that on the morning of July 17, 1986, Richard called her about five times at her place of employment and he requested that she deliver some personal items to him. They agreed to meet at a precinct station parking lot so that she could return some "items" he wanted. When she arrived, Richard was there. She "jumped out of the car [and] threw the bag of stuff ... that he wanted." Richard wanted to talk about a paper she had signed. While she was in her vehicle, Richard reached "over and got his hand on the keys, while the car was running." They fought. Richard took the keys out of the car and left. Janet walked across the parking lot to the police station and "reported the keys stolen." She then called her daughter, who brought some duplicate keys and drove home.
Then at about 8:15 p.m. that same evening, while visiting two friends, Cathy Wiltfeldt and Bonnie Breen, at 4055 Tarragona, a "gray car drove around" which "happened to be Richard's car" driven by someone Janet did not recognize. The car "stopped about a hundred yards up and Richard got out of the car." He went over "to my car, got in the car and drove off." Two days later Janet viewed her vehicle at a police tow lot. It "was a mess." The "side windows were bashed out" and the "front end was all banged like it had run into something."
Janet testified that she "principally" drove the Pontiac with her daughter. Richard had driven it to work "one time" in "about February." On cross-examination Janet stated that Richard did not use the Pontiac "more than once or twice."
Cathy Wiltfeldt testified that on the evening of July 17, 1986, "Mr. Winkelmann got out of the [grayish silver] car," started walking down the street toward the house, "got in [Janet's] car" and "drove away." She went out in the front yard and saw the "defendant," Winkelmann. Mrs. Bonnie Breen who lives with Cathy also testified that Janet, who was visiting, "jumped up and said, that's my husband's car going by." The three women watched the car go by, turn around, come back and stop.
The defendant testified in his own behalf. He stated that he had an "interest" in the Pontiac; that he did a lot of "repair" on it. He would drive the car "whenever she handed me the keys." There were two other cars in the family and "all" used "all" "the cars." He stated that he paid the personal property taxes on the Pontiac. Janet had told Richard that she was planning to sell the Pontiac, but since Richard had repaired it, he told her "she couldn't" because "we were still married."
He admitted he met Janet on the police precinct parking lot and she returned some of his personal items. But when Janet brought up the fact that she intended to sell the car, he "took" the keys "so she couldn't sell it...." In Richard's opinion, he "owned [the Pontiac] as much as she did." Richard insisted that the Pontiac was "marital property," although the title was in the sole name of Janet Winkelmann. Richard admitted that he decided that "if he couldn't have the car, [and] she was going to sell it, [he] was going to wreck it." When asked "and did you wreck it," he answered "Yes, I did." He ran it into a brick wall because of the aggravation of the divorce.
At the close of the evidence, defendant filed a motion for judgment of acquittal. The motion was denied.
At the instruction conference, discussion was had concerning Instructions 5, 6, 7 and 8. Instruction No. 5, the verdict director on Count I--stealing the keys valued at less than $150, the court noted that defense counsel, prior to trial, had submitted a written memorandum notifying that the defense of a claim of right, pursuant to § 570.070, R.S.Mo.1986, would be utilized. The court noted that when a claim of right is injected, a paragraph fourth--referring to an honest belief that defendant had a right to take the property or an honest belief that the owner, if present, would have consented to the taking--must be given, and subsequent paragraphs are to be renumbered. The court gave MAI-CR 3d 324.02.1, the verdict director as to Count I, but added paragraph fourth: "That defendant did not honestly believe that he had a right to take the property." There was a general objection to this instruction.
At the instruction conference, also, the court noted that the defendant submitted a justification instruction pursuant to MAI-CR 3d 308.16 and § 452.330(3) on the issue of his belief in the legality of his conduct. The court gave Instructions No. 6 and 8 instructing the jury that if the defendant reasonably believed that his conduct, as submitted in Instructions 5 and 7 (the verdict directors on Counts I and II), was not criminal and that he acted in reasonable reliance upon the property being marital property, then he was to be found not guilty.
The court gave Instruction No. 7, 2 the verdict director on Count II, stealing the 1978 Pontiac, based on MAI-CR 3d 324.02.1. Since the defendant injected the issue of claim of right, paragraph fourth would have to be given. But the court asked defense counsel if there were any objection to the sequence of the paragraphs. There was none, so the court said that the claim of right defense paragraph "fourth" became paragraph "fifth" by consent.
As to the options available under MAI-CR 3d 324.02.1--that defendant had an honest belief that he had a right to take the property or that the owner, if present, would have consented--the court noted that the evidence would support either submission under either option, so the court gave Instruction No. 7 with the second option.
The court also gave Instruction No. 9 3 MAI-CR 3d 304.12--the verdict possibilities.
Defense counsel offered Instruction A--informing the jury that if it did not find the defendant guilty of stealing a motor vehicle, it could consider whether he is guilty of tampering with a motor vehicle in the second degree--an alleged lesser included offense. The trial court refused Instruction A.
After arguments were made, the jury retired and found the defendant...
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