State v. Albarado

6 S.W.3d 197, 1999 Mo. App. LEXIS 2261, 1999 WL 1043931
CourtMissouri Court of Appeals
DecidedNovember 19, 1999
DocketNo. 22177
StatusPublished
Cited by8 cases

This text of 6 S.W.3d 197 (State v. Albarado) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Albarado, 6 S.W.3d 197, 1999 Mo. App. LEXIS 2261, 1999 WL 1043931 (Mo. Ct. App. 1999).

Opinion

CROW, Presiding Judge.

Defendant, Brett L. Albarado, tried as a prior offender, § 558.016.2, RSMo 1994, was found guilty by a jury of stealing telephone services by deceit in violation of § 570.030, RSMo 1994.1 The trial court sentenced Defendant to four years’ imprisonment.

Defendant appeals, complaining about jury instructions, admission of evidence, and the alleged insufficiency of the proof to support the conviction.

Defendant was tried on a second amended information averring, inter alia, that he:

“ ... appropriated ... telephone services, of a value of at least one hundred [199]*199and fifty dollars, which services were in the charge of Betty Fick, and defendant appropriated such services from Betty Fick and with the purpose to deprive her thereof by deceit in that the defendant represented to Betty Fick that he was using a calling card to place phone calls from her telephone to his answering machine in another state, which in fact he was having the calls billed to Betty Fick, which representation was false and known by defendant to be false and Betty Fick relied on the representation and was thereby induced to part with such services

Defendant’s third point, which this court addresses first, reads:

“The trial court erred in not sustaining Appellant’s motion for judgment of acquittal at the close of the State’s case and Appellant’s motion for judgment of acquittal at the close of all evidence in that the facts presented failed to state[2] any crime for which submission to the jury was possibility, such failure denied Defendant his rights to due process and a fair trial as guaranteed by the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and Article 1, Sections 10 and 18(a) of the Missouri Constitution.”

Defendant’s complaint that the trial court erred in “not sustaining” Defendant’s motion for judgment of acquittal at the close of the State’s case was not preserved for review at trial in that after the State rested, Defendant testified in his own defense. By presenting evidence after the States rested, Defendant waived any claim of error regarding the denial of his motion at the close of the State’s case. State v. Purlee, 839 S.W.2d 584, 587[1] (Mo. banc 1992). Consequently, for purpose of this court’s review, the issue is whether Defendant’s motion for judgment of acquittal at the close of all the evidence should have been granted. Id.

In deciding that issue, this court considers the evidence in the light most favorable to the verdict. State v. O’Brien, 857 S.W.2d 212, 215-16 (Mo. banc 1993). Evidence supporting a finding of guilt is taken as true, and all logical inferences that support such a finding and that may reasonably be drawn from the evidence are indulged. Id. at [5]. Conversely, evidence and inferences therefrom that do not support a finding of guilt are ignored. Id.

So viewed, the evidence established that in 1994, Betty Fick got acquainted with Defendant when he became a frequent customer of a restaurant she was operating.

In October 1995, Fick3 allowed Defendant to move into one of the bedrooms in a two-bedroom apartment where she resided. Fick explained: “[H]e didn’t have a place to stay, and his car was in the shop and couldn’t afford to have it fixed.... He was just a good friend, and I wanted to help him out when he needed help.”

Fick supplied Defendant one of the two keys to the apartment. She kept the other. No one else had access.

Fick had a telephone in the apartment. She gave Defendant permission “to use it for local calls,” but not long distance calls. Fick recounted: “He had had a credit card. He ... said he would use the phone with his credit card. Any long-distance calls he would make he had a GTE credit card.... I saw a card in his hand at one time_ He was using it, reading off of it, dialing a phone number.” Fick’s testimony continued:

“Q In December [1995] did you have a discussion with him about the card?
A Yes, sir.
Q What was the nature of that?
[200]*200A He told me he had received a call from a friend of his who works for the credit card company, that they were not going to honor his credit card, and that those calls would be put on my bill[.]”

Asked whether Defendant made any suggestion about what to do, Fick replied: “He said that I should tell the phone company that my 15-year-old step-grandson had come in and made those calls, and I would not be charged with them, they would take them off my bill, and I told him I couldn’t do that.”

According to Fick, Defendant picked up the mail from her outside mailbox most of the time because he was planning to start a business and “was getting information mailed to him at that address.”

During November and December 1995, Fick received no bill for telephone service for those months.4 She was not overly concerned because there were “children in the apartments” and she had “seen mail on the ground that belongs to people, that the mailboxes had been gotten into.”

Defendant resided in Fick’s apartment until January 1, 1996, when Fick moved to another address. She asked him to “find another place to live.”

Fick avowed her telephone bills prior to November 1995 were “typically between $50.00 and $70.00” per month.

Asked whether she received a bill in January 1996, Fick answered, ‘Tes, sir.” She added, “It was for $9,000.00, and it was — ”

At that juncture, Defendant’s lawyer interrupted Fick’s answer by objecting that it was hearsay, whereupon the following dialogue ensued:

“[Prosecutor]: I don’t think it’s hearsay, Judge, if she knows how much her bill was.
THE COURT: Do you have the bill?
[Prosecutor]: Yes.
THE COURT: All right, overruled.
A It was for over $9,000.00.
Q (By [Prosecutor]) Did you receive ... a December bill?
A I had called the phone company when I received the $9,000.00 bill. Needless to say, I was on the phone all day, and they sent copies of all of the phone calls for November and December to me, and then I received it, and the total amount was over $16,-000.00.
Q Would that be for November and December—
A —For November and December.”

The prosecutor then showed Fick State’s Exhibit 1; she identified it as her telephone bill dated December 1, 1995, itemizing “November’s calls.” Then, this:

“Q What was unusual about this bill that was not normal from your normal bills?
A Because it was over, I would say, it was $9,450.00 more than what I ordinarily would have.
Q Now ... would that be for one month or both months we’re talking about?
A One month.

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Bluebook (online)
6 S.W.3d 197, 1999 Mo. App. LEXIS 2261, 1999 WL 1043931, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-albarado-moctapp-1999.