State v. Ballenger

72 S.W.3d 154, 2002 Mo. App. LEXIS 543, 2002 WL 417194
CourtMissouri Court of Appeals
DecidedMarch 19, 2002
DocketNo. WD 59885
StatusPublished
Cited by7 cases

This text of 72 S.W.3d 154 (State v. Ballenger) 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. Ballenger, 72 S.W.3d 154, 2002 Mo. App. LEXIS 543, 2002 WL 417194 (Mo. Ct. App. 2002).

Opinion

THOMAS H. NEWTON, Judge.

Mr. Joel Clark Ballenger appeals his conviction of attempting to steal anhydrous ammonia, a class A misdemeanor in violation of § 570.030.4.1 We reverse.

I. Factual and Procedural Background

On January 17, 2001, at approximately 12:30 a.m., two Moniteau County Sheriffs Deputies were on surveillance of a farm in Moniteau County. Earlier in the day, one of the farm’s co-owners, Mr. Tim Blankenship, had contacted the sheriffs office when he saw three individuals on his property in a blue and white Oldsmobile. After stopping and speaking with these individuals, they left the premises. Mr. Blankenship believed that they were on his property in order to steal anhydrous ammonia from his applicator tank. Anhydrous ammonia is a source of nitrogen used to grow crops. However, some people use it as an ingredient to produce methamphetamine.

At approximately 1:15 a.m., the sheriffs deputies observed a truck approach the farm. The truck stopped in the vicinity of the anhydrous ammonia applicator tank, and an individual exited the truck and began to walk towards the tank. While walking towards' the tank, this individual shined a flashlight on the top of the tank, where one would have to gain access to obtain the anhydrous ammonia.

At this time, the two deputies began walking toward the truck, which was near the tank. Moments later, the individual returned to the truck, and the truck began to drive away. The officers quickly returned to their vehicle, activated their emergency lights, and the truck was stopped. The officers approached the vehicle and ordered all three occupants to exit the truck.

Subsequently, the officers arrested the individuals and transported them to the Moniteau County Sheriffs office. Mr. Bal-lenger was charged with the class A misdemeanor of attempting to steal anhydrous ammonia.

At the bench trial, Gary Simmons, one of the arresting officers, testified that after detaining the three individuals outside the truck, he asked them what they were doing. In response, Mr. Ballenger stated, “Well, I know the owner of the farm. And we pulled back here to go to the bathroom.” Deputy Simmons then asked Mr. Ballenger who the owner of the farm was, and Mr. Ballenger stated that it was Stan Blankenship, and that they had gone to school together. In addition, when Deputy Simmons asked the suspects who went up to the tank with a flashlight, all three individuals denied having a flashlight.

After arresting the suspects, Deputy Simmons seized a flashlight from the truck. Also, in the truck bed, a seven-gallon water container was discovered. It was Deputy Simmons’ testimony that, [156]*156since he began working on methamphetamine eases, it has been common for individuals to use this sort of container to transport stolen anhydrous ammonia. Both the flashlight and the water container were admitted as evidence at the trial.

Mr. Michael Stanley Blankenship, a co-owner of the farm, also testified on behalf of the State. He stated that to gain access to the anhydrous ammonia applicator tank on the farm, one would have to turn off the public road, and drive a quarter mile. At the time Mr. Ballenger was arrested, Mr. Blankenship also testified that no signs were posted at the entrance of the Blankenship farm to notify the public that the road was private property.

After the State completed its case and rested, Mr. Ballenger moved for a directed verdict. This motion was denied. Mr. Ballenger did not present any evidence. The trial court found Mr. Ballenger guilty of attempting to steal anhydrous ammonia in violation of § 564.011, and he was sentenced to thirty days in the Moniteau County jail.

Mr. Ballenger asserts one point on appeal, arguing that the trial judge erred in overruling his motion for a directed verdict because the State failed to meet its burden of proof to establish that he had taken a “substantial step” towards the commission of the crime of stealing anhydrous ammonia.

II. Standard of Review

Review of a challenge to the sufficiency of the evidence to support a criminal conviction is limited to determining whether sufficient evidence was presented from which a reasonable fact finder might have found the defendant guilty beyond a reasonable doubt. State v. Silvey, 894 S.W.2d 662, 673 (Mo. banc 1995). A reviewing appellate court views the evidence and all reasonable inferences drawn therefrom in the light most favorable to the state and disregards all evidence and inferences to the contrary. State v. Watson, 947 S.W.2d 514, 515 (Mo.App. W.D.1997) (citing State v. Idlebird, 896 S.W.2d 656, 660 (Mo.App. W.D.1995)). It neither weighs the evidence nor determines the reliability or credibility of witnesses. Id. Reasonable inferences may be drawn from direct and circumstantial evidence. State v. West, 21 S.W.3d 59, 62 (Mo.App. W.D. 2000). “However, the inferences must be logical, reasonable and drawn from established fact.” Id. at 62-63 (citing State v. Friend, 986 S.W.2d 824, 828 (Mo.App. S.D.1996)).

III. Legal Analysis

The sole point for review in this case is whether the trial court had sufficient evidence to conclude that Mr. Ballen-ger’s conduct rose to the level of taking a substantial step towards the commission of the crime of stealing anhydrous ammonia. Section 564.011.1 states that “[a] person is guilty of attempt to commit an offense when, with the purpose of committing the offense, he does any act which is a substantial step towards the commission of the offense.” A “substantial step” is defined as “conduct which is strongly corroborative of the firmness of the actor’s purpose to complete the commission of the offense.” Section 564.011.1. The Supreme Court of Missouri has recently held that “[a]ttempt, under section 564.011, has only two elements: (1) the defendant has the purpose to commit the underlying offense, and (2) the doing of an act which is a substantial step toward the commission of that offense.” State v. Withrow, 8 S.W.3d 75, 78 (Mo. banc 1999) (citing State v. Molasky, 765 S.W.2d 597, 601 (Mo. banc 1989)).

The underlying offense in this case, the crime of stealing, is committed if a person [157]*157“appropriates property or services of another with the purpose to deprive him or her thereof, either without his or her consent or by means of deceit or coercion.” § 570.030.1. Section 570.030.4 expressly makes the “theft of any amount of anhydrous ammonia” a class D felony.

The merits of Mr. Ballenger’s appeal turn on whether his conduct constituted a “substantial step” towards the commission of the charged crime of stealing anhydrous ammonia. Making this determination is a fact intensive one, where the circumstances of a case must be weighed on an individual basis. State v. Metz, 43 S.W.3d 374, 380 (Mo.App. W.D.2001); see also State v. O’Brien, 5 S.W.3d 532, 534 (Mo.App.

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Bluebook (online)
72 S.W.3d 154, 2002 Mo. App. LEXIS 543, 2002 WL 417194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ballenger-moctapp-2002.