State v. Bird

1 S.W.3d 62, 1999 Mo. App. LEXIS 1755, 1999 WL 688113
CourtMissouri Court of Appeals
DecidedSeptember 7, 1999
DocketNo. ED 74827
StatusPublished
Cited by6 cases

This text of 1 S.W.3d 62 (State v. Bird) 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. Bird, 1 S.W.3d 62, 1999 Mo. App. LEXIS 1755, 1999 WL 688113 (Mo. Ct. App. 1999).

Opinion

KENT E. KAROHL, Judge.

Defendant appeals convictions and consecutive sentences on three felonies filed in one information: (1) Count I charged receiving stolen property in that, between December 10, 1996 and March 15, 1997, he “retained” a Winchester 30-30 rifle “knowing or believing that it had been stolen;” (2) Count IV charged burglary in the second degree committed on November 1, 1997; and, (3) Count V charged possession of burglar’s tools on November 1, 1997. The information also charged defendant in Count II with burglary second degree and Count III with possession of burglary tools both occurring- on March 17, 1997. The jury found defendant not guilty of Counts II and III.

Defendant’s first point contends the court erred in not granting a motion for judgment of acquittal on Count I. In order to support the charge of receiving stolen property, the state bears the burden of proving beyond a reasonable doubt that: [64]*64(1) defendant retained a 30-30 Winchester rifle that was in fact stolen; (2) defendant exercised dominion over the rifle by receiving, retaining or disposing of it; (3) defendant knew or believed the rifle had been stolen; and, (4) defendant intended to deprive the owner of a lawful interest in the property. State v. Taylor, 691 S.W.2d 379, 381-82 (Mo.App.1985). On this point we review the evidence in the light most favorable to the verdict, “including all favorable inferences drawn from the evidence and disregard[s] all evidence and inferences to the contrary.” State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993) cert. denied, 510 U.S. 997, 114 S.Ct. 562, 126 L.Ed.2d 462 (1993).

Defendant’s principal challenge is to the third element of the offense, knowledge or belief. There is no dispute that the weapon was stolen on December 10, 1996 in a burglary of the home of Kody Newkirk. Newkirk paid around $300.00 for the rifle. After the burglary, Newkirk first saw his rifle on August 14, 1997 at PHD Sporting Goods. A second weapon stolen in the December 1996 burglary was subsequently found in the possession of a person other than defendant.

Sometime in “January and February 1997,” Keith Long put two axles on an automobile of defendant’s wife. At some unidentified time thereafter, Long went to defendant’s home for payment for the automobile repairs. Long agreed to accept the 30-30 Winchester as compensation for his work. There is no evidence to support a finding of the value of the repairs or that the rifle was worth more than the repair charges. Long did not know the rifle was stolen. He subsequently traded the rifle at PHD Sporting Goods for another gun.

Rodney Phegley, co-owner of PHD Sporting Goods, did not know the rifle was stolen. He testified that the rifle had a retail value of about $225.00. The serial number on the rifle was untouched. He had no way of knowing that the rifle had been stolen because Newkirk made no record of the serial number, and the number was unavailable after the burglary.

We conclude that the evidence viewed in light of the verdict is insufficient to support the verdict. There is no evidence to support a finding connecting defendant with the December 10, 1996 burglary during which the rifle was stolen. There is no evidence to support a finding regarding the circumstances in which defendant obtained the rifle. Particularly, there is no evidence to support finding when defendant acquired the rifle. Thus, there is no unexplained possession by defendant of recently stolen property. The jury may consider this circumstance when determining whether defendant knew or believed the stolen nature of the property. State v. Taylor, 691 S.W.2d 379, 382 (Mo.App.1985) citing State v. Sours, 633 S.W.2d 255, 258 (Mo.App.1982). However, there must also be evidence to support finding “recent.” The state relies on State v. Lindsey, 868 S.W.2d 114, 117 (Mo.App. W.D.1993) and State v. Morgan, 861 S.W.2d 221, 222 (Mo.App. E.D.1993), which both involve “recently” stolen property as the basis for an inference that defendants knew they possessed stolen property. However, these cases are inapposite.

In Morgan, defendant was charged with stealing a johnboat in June 1990. State v. Morgan, 861 S.W.2d 221, 222 (Mo.App. E.D.1993). In July 1990 it was found at his home with the serial number tags removed. Id. Defendant told the police he paid $150.00 for the boat from an unidentified person. Id. There was evidence the boat had a value of $600.00. Id. We affirmed the conviction relying on evidence of a recent theft, defendant’s possession of the boat with serial numbers removed and the apparent fabricated story of purchase. Id. In the present case there is no evidence to support a finding that defendant acquired the rifle near to the time it was stolen; no evidence to support a finding that anything connected to the rifle would suggest that it was stolen; and, no state[65]*65ment of the defendant which would infer knowledge. Defendant did not testify.

In Lindsey the defendant was found in the backyard of a home, which had been burglarized shortly before. State v. Lindsey, 868 S.W.2d 114, 116 (Mo.App. W.D.1993). A witness observed a man, not the defendant, cany a television from the home and saw a man return to the house. Id. at 117. He called the police. Id. When a police officer caught defendant in the backyard a “short time later” defendant had in his possession a television antenna and remote controls for a television of the make or model stolen. Id. Further, the police located the television and its connection to the burglary by following tracks in the snow. Id. at 116. There was direct evidence of: (1) a theft immediately before the arrest; (2) defendant’s possession of recently stolen property; and, (3) possession of equipment related to the television. Id. at 117. This constituted substantial evidence to support inferences defendant knew or believed that he received stolen property. Id. There is no such evidence in the present case. The conviction and sentence on the charge in Count I, receiving stolen property, is reversed for lack of sufficient evidence to make a submissible case.

Defendant’s second point argues the court erred in failing to sustain his timely motion for a severance because joinder was improper. On December 31, 1997 the state filed an information charging five felonies. Defendant filed a motion for severance on March 2, 1998. He alleged, inter alia:

3. Severance of offenses should be granted if their joinder for trial would result in substantial prejudice to the accused. Section 545.885 RSMo. (1994)
4. Joinder of these offenses would result in substantial prejudice to defendant because the jury would likely consider evidence of guilt on one charge as evidence of guilt on another charge.
[[Image here]]
6.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Rodney Donelson v. Troy Steele
11 F.4th 675 (Eighth Circuit, 2021)
State v. Holliday
231 S.W.3d 287 (Missouri Court of Appeals, 2007)
State v. Langdon
110 S.W.3d 807 (Supreme Court of Missouri, 2003)
State v. Winder
50 S.W.3d 395 (Missouri Court of Appeals, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
1 S.W.3d 62, 1999 Mo. App. LEXIS 1755, 1999 WL 688113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bird-moctapp-1999.