State v. Blank

705 S.W.2d 56, 1985 Mo. App. LEXIS 3861
CourtMissouri Court of Appeals
DecidedDecember 17, 1985
DocketNo. WD 37105
StatusPublished
Cited by2 cases

This text of 705 S.W.2d 56 (State v. Blank) 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. Blank, 705 S.W.2d 56, 1985 Mo. App. LEXIS 3861 (Mo. Ct. App. 1985).

Opinion

SHANGLER, Judge.

The defendant Blank was charged by information with two offenses: Count I was framed as a class C felony of stealing property of the value of $150 or more. Count II was framed as a class B misdemeanor for attempting to steal a barrel of copper wire. The offenses were tried to the court, and the defendant Blank was convicted of both offenses. The court imposed concurrent sentences: two years imprisonment on the felony stealing conviction, and 180 days in the county jail on the misdemeanor attempting to steal conviction.

The defendant contends there was no substantial evidence to convict for the felony stealing on Count I, and that the punishment imposed for the misdemeanor attempt on Count II exceeds any sentence the law allows. We modify the sentence on Count II and, as modified, affirm the convictions.

The charges lodged against Blank were for the theft and attempted theft of property from the Wray Salvage Yard. On December 19, 1984, Henry Wray, yard proprietor, reported to the county sheriff that some radiators were taken from the yard area, and also sets of tires and wheels from a truck on the premises. The tires and wheels had a combined value of $400. On January 31, 1985, at about 10 p.m., he saw [57]*57the tires and wheels on a vehicle parked on the west side of the salvage yard. The vehicle was owned by defendant Blank. Wray reported a prowler to the sheriff, and deputy Knisely responded.

There had been a snowfall, and the area was covered. The salvage yard was bordered on two sides by two roads which intersected there. The road areas had been cleared of snow. The officer arrived at the salvage yard and met with Wray and his son. There were footprints in the snow which lead from the roadway into an area where copper wire and salvage had been stored in a paper barrel. They followed the footprints, and the barrel appeared to have been moved to the edge of the roadway, some thirty or more feet away. The officer described two sets of footprints, one from tennis shoes, and the other from overshoes. He continued to follow the prints over the rise of a hill, and found where “someone had set down or layed down in the snow and changed out of a pair of overshoes.” The officer then found the overshoes in the vicinity. They continued to follow, and encountered Blank. Officer Knisely asked Blank what he was doing there, and Blank told him he was hunting coon. The officer noticed that Blank had neither a weapon nor any lights essential for such a nocturnal activity. The tennis shoes Blank then wore, the officer noticed, had the same distinctive sole markings as were imprinted on the snow.

Wray identified the wheels and tires on the Blank pickup as those taken from his yard. He ascribed a $400 value. He identified the barrel of copper remnants as his property, and ascribed a $75 value. Wray testified that he had purchased the vehicles from which the wheels and tires were taken in the state of Nebraska, and comprised “two traction tires and two straight-tread tires.” They were marked with serial numbers, but he had not recorded them. Wray had the serial numbers of his tires of that kind and knew the numbers from the stolen tires were the same except for “the last three numbers on them” The stolen tires were of the Goodyear manufacture. Wray testified also that the missing wheels upon which the tires were mounted were taken from a Chevrolet pickup truck. These rims were silver-white, but were not marked with serial numbers.

Wray testified also that on the night the radiators, tires and wheels were stolen, and reported — on December 19, 1984 — he noticed a brown and white Chevrolet pickup truck at the salvage yard. The night a barrel of copper salvage was removed from the salvage yard to the edge of the road, on January 31, 1985, and Blank was apprehended, that same brown and white Chevrolet pickup was found to belong to the defendant Blank. That pickup on that night was fitted with the wheels and tires Wray identified were stolen from his premises. Wray was confirmed in that identification, he said, because they were Goodyear tires — a manufacture rarely seen in the area: “You go out here on the street, you won’t find two pickups in Nodaway County [the site of the crimes] with Goodyear’s tires on them or anywhere else on them, or anywhere else around. There’s no dealers for Goodyear’s.”

The defendant does not contest the sufficiency of the evidence to convict for the Count II misdemeanor attempt to steal. The defendant does contend that there was no evidence to “tie” him to the theft of the tires and wheels from the Wray premises, and that the inability of Wray to identify as his own the tires and wheels found on the Blank pickup truck confirm that the felony conviction on Count I for stealing that property was without basis in the evidence.

The case was tried to the court. Our review function of a judgment entered in a jury-waived criminal case is the same as of a judgment entered on a jury verdict. State v. Koetting, 691 S.W.2d 328, 329[1] (Mo.App.1985). We determine whether any rational trier of fact could have found a verdict of guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1979). In that exercise, we accept as true all evidence and inferences in support of the verdict—whether direct or circumstan[58]*58tial—and disregard the contrary evidence. State v. Turner, 623 S.W.2d 4, 6[1, 2] (Mo. banc 1981). We. accord to the findings of the trial court the same deference due a jury verdict. State v. Isom, 660 S.W.2d 739, 740[1] (Mo.App.1983). Thus, we limit review to whether the findings are supported by substantial evidence [State v. Koetting, supra, 691 S.W.2d at 329-330]— evidence from which a rational trier of fact could have determined the issue. State v. Sherrill, 657 S.W.2d 731, 737[15-16] (Mo. App.1983).

The trial court entered findings for the judgment of guilty on both counts, for the felony stealing as well as for the misdemeanor attempt to steal. The court expressly disbelieved the testimony of the defendant that he was afoot in the snow in the area at that time of night on a hunt for coons — without a gun, without a dog, or any other usual paraphernalia of the sport. There was evidence that the defendant had been convicted of burglary in Nebraska, and that fact may have abetted the court to the unwillingness to believe his testimony.

As to Count II, the misdemeanor conviction, the court expressly found that the barrel of copper wire was moved toward the roadway for the obvious purpose of asportation, and that the sheriff tracked down the defendant as the perpetrator. That conviction is not the subject of appeal, although the term of sentence is.

As to Count I, the felony conviction, the express findings of the court and the other inferences from the evidence consistent with the judgment of guilt determine: The wheels and tires taken from the Wray yard in December of 1984 had come from a Chevrolet pickup truck, they were purchased from the state of Nebraska, and are commodities of the Goodyear manufacture rarely seen in the vicinity because that brand is not marketed in the area.

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Related

State v. Williams
797 S.W.2d 734 (Missouri Court of Appeals, 1990)
State v. Hornbuckle
746 S.W.2d 580 (Missouri Court of Appeals, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
705 S.W.2d 56, 1985 Mo. App. LEXIS 3861, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-blank-moctapp-1985.