State v. Echols

742 S.W.2d 220, 1987 Mo. App. LEXIS 4941, 1987 WL 1835
CourtMissouri Court of Appeals
DecidedNovember 24, 1987
DocketNo. 52299
StatusPublished
Cited by4 cases

This text of 742 S.W.2d 220 (State v. Echols) 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. Echols, 742 S.W.2d 220, 1987 Mo. App. LEXIS 4941, 1987 WL 1835 (Mo. Ct. App. 1987).

Opinion

GARY M. GAERTNER, Presiding Judge.

Defendant was convicted by a jury in the St. Louis County Circuit Court of attempted burglary first degree, RSMo §§ 564.011, 569.160 (1986). The trial court found defendant to be a prior offender and sentenced him to five years imprisonment. On appeal defendant alleges that the trial court erred in (1) submitting a verdict director that did not require the jury to find that defendant intended to commit a specific crime once in the building or that a person, not a participant in the crime, was in the building; and (2) trying the case on an information that failed to allege two elements of the crime. We affirm.

On December 19, 1985, at 4:45 a.m. the victim, Miss Bobbie Carter, was awakened by a noise which she originally thought was caused by a neighbor. The third time she heard the noise she proceeded to the front door of her apartment which she had previously blocked with a dresser since she [221]*221had been using the front room as her bedroom. The victim then asked who was at the door. Defendant replied, “let me in, I'm cold.” She told him to leave but he continued to push against the door. The victim testified that it sounded as if defendant was throwing his body against the door. She then telephoned the police.

The police arrived approximately three minutes later. After they entered the apartment through the back door, they moved the dresser from in front of the front door. The door frame fell to the floor. The police apprehended defendant in the basement beneath the stairwell.

In his first point on appeal, defendant argues that the trial court erred in submitting the State’s instruction defining burglary. Defendant maintains that MAI-CR2d Notes on Use and the Southern District’s decision in State v. Pickins require us to find the trial court in error. See State v. Pickins, 660 S.W.2d 705, 707-09 (Mo.App., S.D.1983); Notes on Use, MAI-CR2d 18.02, 23.50. We believe the Notes on Use mandate a contrary result. We reject State v. Pickins.

The general patterned instruction for submitting an attempt crime is found in MAI-CR2d 18.02.1 “A separate instruction must be given defining the object crime_” Note on Use No. 3, MAI-CR2d 18.02. The object crime was first degree burglary which is, defined in MAI-CR2d 33.01. The State submitted, word for word, the MAI-CR2d 33.01 definition of first degree burglary. “If the object crime is defined in a separate definition instruction, words and phrases used in that definition which must be defined ... according to the Notes on Use under the MAI-CR form for submitting the object crime, must be defined.” Note on Use No. 3, MAI-CR2d 18.02 (emphasis added). First degree burglary was the object crime; therefore we turn to the Notes on Use for MAI-CR2d 23.50 to determine which words must be defined according to the Notes on Use under the MAI-CR form for submitting first degree burglary. The Notes on Use under MAI-CR2d 23.50 require that “inhabitable structure” be defined.2 “Inhabitable structure” is the only word or phrase which must be defined according to the Notes on Use for MAI-CR2d 23.50.

In the body of MAI-CR2d 23.50 “a definition of the crime defendant intended” must be inserted. This definition is not required when the object crime of first degree burglary is not charged because MAI-CR2d 23.50 is not submitted. The Southern District’s position would change Note on Use No. 3, MAI-CR2d 18.02 to mean: “words and phrases which must be defined according to the body of the instruction,” instead of “words and phrases ... which must be defined ... according to the Notes on Use....” The Notes on Use for MAI-CR2d 18.02 and 23.50, when read together, do not require a definition of the crime defendant intended had he been successful in his attempt. We fail to see how any other construction of the directions provided would make any sense.

Similarly, defendant appears to argue that the submitted verdict director for attempted first degree burglary should have required the jury to find that defendant intended to commit a specific.crime once in the building. We disagree. MAI-CR2d 18.02, the verdict director for attempt crimes, is a “fill in the blank,” patterned instruction:

18.02 Attempts
... If you find and believe from the evidence beyond a reasonable doubt:
[222]*222First, that (on) (on or about) [date] in the (City) (County) of_, State of Missouri, the defendant [briefly describe the conduct which would constitute the attempt], and Second, that such conduct was a substantial step toward the commission of the crime of [name of offense with sufficient details to identify person or property involved, e.g. rape upon Susan Doe or burglary of a specific building] and was done for the purpose of committing such [name of offense], ...
then you will find the defendant guilty (under Count _) of an attempt to commit [name of offense ].
However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.

To complete paragraph one, the State had to “briefly describe the conduct which would constitute the attempt.” MAI-CR2d 18.02. The State complied with the direction by inserting: “banged on the front door of the residence, breaking the door frame....” Paragraph two required “name of offense with sufficient details to identify person or property involved, e.g. ... burglary of a specific building.” Id. The State followed the direction and the example given by responding with: “burglary in the first degree of such residence.” The Notes on Use do not require any more from the State other than the previously discussed definition of first degree burglary-

Defendant relies on State v. Pickins for the proposition that “the submission of attempted burglary requires a definition of burglary that includes the object crime and the elements thereof.” State v. Pickins, 660 S.W.2d 705, 708 (Mo.App., S.D.1983). The Southern District came to this conclusion after considering the Notes on Use to MAI-CR2d 18.02 in connection with MAI-CR2d 23.50. The Southern District also points out that “ ‘[t]he intent with which an accused breaks and enters is an essential element of the offense of burglary....’ ” Id. at 707 (quoting State v. Asberry, 559 S.W.2d 764, 767 (Mo.App., S.D.1977)). But the case before us is an attempted burglary. More is required of the State in proving burglary than is required to prove attempted burglary.

In the case before us the jury found that defendant took a substantial step toward the commission of burglary. But since the victim foiled defendant’s effort to enter the apartment, it is difficult to infer with specificity, which crime defendant intended to commit once in the apartment. Had defendant entered and taken a substantial step toward the crime intended, he would have been charged with attempting that crime instead of attempted burglary.

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Bluebook (online)
742 S.W.2d 220, 1987 Mo. App. LEXIS 4941, 1987 WL 1835, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-echols-moctapp-1987.