State v. Fox

510 S.W.2d 832, 1974 Mo. App. LEXIS 1582

• Court: Missouri Court of Appeals
• Decided: June 4, 1974
• Docket: 35365
• Status: Published

Opinions

SIMEONE, Acting Chief Judge.

Defendant-appellant, Willie Fox, was found guilty by a jury and sentenced by the court under the Habitual Criminal Act to five years in the Missouri Department of Corrections for the offense of operating a motor vehicle without the owner’s consent. § 560.175, RSMo, V.A.M.S. He appeals.

Taking the evidence most favorably to the State, the jury could reasonably have found that the Tree of Lights Holy Missionary Baptist Church, located at 4060 Easton Avenue in St. Louis was the title holder of a white, four door, 1964 Plymouth automobile which was used exclusively by and in the custody of Reverend George H. Grey, the church’s pastor. Reverend Grey, who had been affiliated with the church for some three years, had used the automobile on November 3, 1972. On that date he and his invalid wife went fishing at Chain of Rocks Bridge and returned to his home at 4054 Kennerly Avenue in St. Louis at about 9:30 p. m. He parked “his” car in front of his home, took the keys out of the ignition, unlocked his house door, went back to assist his wife, and went into his home. He either left his key ring containing the car and house keys in the door or he may have lost them at some point. In any event, shortly after entering his home, he was talking on the telephone to a friend about his fishing trip, heard his dog barking and “got up to see what was wrong; when I went to the front window the car was gone.” This was about 9:30 or 10:00 p. m. on November 3, 1972. Reverend Grey testified he did not give anyone permission to drive his automobile, did not know the defendant, Willie Fox, and did not have his car returned until November 8, 1972. In his glove compartment he had a duplicate of his license and a receipt for some car repairs with his name on both, which were later found at the time the car was returned, on the front seat of the automobile.

The scene then shifts to the early morning hours of November 8, 1972. At about 1:30 a. m. Sergeant Ward Frederick Stoll of the Berkeley Police Department, while on duty and checking an abandoned automobile parked on the shoulder of Highway 1-70, noticed a 1964 white, 4-door Plymouth going west, exceeding the speed limit. It was traveling seventy miles an hour in a fifty-five mile zone. Sergeant Stoll turned on his red lights and pulled the vehicle off at the exit near the airport. The vehicle contained one occupant — Willie Fox. The vehicle had license plates CE 7140. He approached the vehicle and checked the trunk locks, the number of persons in it, and checked to see if the ignition had been “punched out.” He found nothing wrong as to any of these items. He requested a driver’s license, and Mr. Fox handed him “an application for a duplicate operator’s license,” which was dated three years earlier, August, 1969. The Sergeant asked for his valid operator’s license, and Fox replied he did not have one. Sergeant Stoll then radioed the dispatcher to check on an operator’s license, but the result showed that a person by that name never had an operator’s license in Missouri. He then advised Fox under standard procedure that he “would have to place him under arrest for operating a motor vehicle with no operator’s license.” He requested Fox to “get out” of the vehicle, patted him down, and went with Fox back to the police car; before doing so, he took the key out of the ignition and requested a “license check” on the license plate on the vehicle. The information “came back as stolen, the vehicle bearing that license number; the license number was given, description of vehicle and location where it was stolen” from [4000 block of Kennerly], and the date.” Then Sergeant Stoll “charged Mr. Fox with auto theft, fugitive, St. Louis City, and operating a motor vehicle without owner’s consent, St. Louis County.”

After giving the Miranda warnings, Sergeant Stoll questioned the defendant as to whether he would “like to tell me where he got the car.” Fox replied that “he had gotten the car from a fellow down in the City.” The Sergeant asked if he knew the man’s name and, according to the Sergeant, he understood Fox to say the name “Isaiah Johnson.” Fox stated he had known Johnson a couple of days, that he got the keys from Johnson, and that he had “just gotten it that night” and that he was out “just for a ride out by the airport.” On the front seat of the car at this time were a driver’s license change of address stub and a receipt for repair work both in the name of Reverend George H. Grey. Fox was then conveyed to the Berkeley Police station and the vehicle was towed to an impound area. Later, Sergeant Stoll checked the St. Louis City and County arrest records and the phone book to locate one “Isaiah” Johnson, and could not locate a person by that name. On cross-examination, defense counsel brought out that the defendant might have said that he received the vehicle from “Ezell” Johnson, but the officer stated that he understood him to say “Isaiah” Johnson, although he admitted he could have said “Ezell.” He did not look for the name “Ezell” Johnson.

The defendant’s defense consisted of the testimony of his twenty-one year old sister, Flossie Fox. She testified that a few days before November 7, probably November 4, 1972, “Ezell” Johnson, a friend of. her brother’s, came to her home where she, her older sister, and Willie lived “off and on” and asked her if she wanted to buy a “ ’64 Plymouth and I [Flossie] asked him was it his car; he said yeah and that he would bring it by for me to see it.” At that time Willie was in the apartment. On November 7, “Ezell” returned and “That is when he brought the car . . . over to the house and he gave my brother the keys for him to try the car out, you know, and he said he would call the next day, you know, to see whether I wanted to buy the car or not.” The price of the car was $50.00. She admitted, however, that she did not have a driver’s license and never owned a car before.

At the close of the State’s case and again at the close of all the evidence, counsel for the defendant Fox moved for judgment of acquittal. The motions were overruled.

The trial court instructed the jury and gave certain instructions including Instructions No. 1¹, 2 ², and 3.³

During his opening statement, the prosecuting attorney stated that Sergeant Stoll will “tell you at that time that he placed the Defendant Willie Fox under arrest for suspect stealing a motor vehicle and various other charges, and, of course, let me tell you now that he is not on trial for these other charges.”

And during the prosecutor’s final argument, he stated that “there is no Ezell Johnson;” that between November (the day defendant was arrested) and “today” (February, 1973), “Do you think they [Willie and Flossie] have not talked the case over and sat down and got the stories straight?” He also argued that “Ladies and Gentlemen, this is a man [defendant] who spent twenty-five years living in the City of St. Louis on the north side (objection — overruled). . It is a tough neighborhood down there. ... I think we all know: ghetto, degrading, dehumanizing place to live. One thing it teaches people how to survive . . . (objection —overruled). . . . These are street people; Willie is a street person; he is not employed, does not have a job. This is a person who has come up with a good story; he’s lived down there, knows how to get by, how to get along and how to make ends meet.”

The jury returned a verdict of guilty, motion for new trial was overruled, allocution granted and defendant sentenced to a period of five years in the Department of Corrections.

On this appeal defendant makes four points: the court erred (1) in failing to properly instruct on defendant’s theory of the case and thereby improperly shifted the burden of proof [to defendant] ; (2) in allowing the prosecutor in his opening statement to comment on other crimes, which was “compounded” by the testimony of Officer Stoll when he testified, over objection, to running a record check on defendant’s driver’s license, and that he arrested defendant on “various other charges” ⁴ and that he testified to hearsay information relating to other charges pending against defendant; (3) in allowing hearsay testimony by “a state’s witness” ⁵ and “Improper closing argument by the prosecutor concerning the nonexistence of a potential witness, over defendant’s objections and motions for mistrial,” and (4) in overruling defendant’s continuing objections and in refusing to declare a mistrial as to the prosecutor’s series of statements in his argument concerning defendant’s “character and upbringing” which were outside the record, inflammatory, prejudicial and calculated to appeal to the passions and prejudices of the jury.

As to appellant’s first point — that the court “failed to properly instruct on defendant’s theory of the case and thereby improperly shifted the burden of proof [to defendant],” he argues that the court attempted to instruct on defendant’s theory of the case, but “it did so erroneously.” “The result was that the jury received an insufficient verdict-directing instruction (Instruction No. 1) and an improper and erroneous alternative verdict-directing instruction (Instruction No. 2).” He contends that by giving Instruction No. 2 the court “in effect excluded the essential element of intent as a part of the state’s required burden of proof, and forced it [intent?] upon the defendant as an affirmative defense to prove his lack of guilty knowledge.” He contends that the Supreme Court has ruled that intent, i. e. knowledge on the part of defendant that he operated the vehicle without the consent of the owner, “is an essential element of the offense charged under § 560.175. See State v. Tate, 436 S.W.2d 716 (Mo. 1969); State v. McLarty, 414 S.W.2d 315 (Mo. 1967).” As we understand his contentions, he argues that Instruction No. 2 placed the burden of operating the vehicle in an honest belief that he had permission upon the defendant, rather than upon the state, and that the Instruction failed to place the burden on the state to show the element of intent to operate the vehicle without the owner’s consent. Obliquely, he also contends that the state’s burden of showing that the defendant did not operate the vehicle in the honest belief that he had permission was not included in the verdict director (Instruction No. 1). He relies on the rules that a verdict director which purports to cover the whole case and ignores a defense supported by the evidence constitutes reversible error. [State v. Tate, supra; State v. Drane, 416 S.W.2d 105 (Mo. 1967).] And the fact that a separate instruction is given does not cure the error of failing to include the defense in the verdict-director. State v. Winn, 324 S.W.2d 637 (Mo.1959). He concludes that “this error alone should require a reversal and new trial.”

Rule 26.02(6) and § 546.070(4) require the court to instruct the jury “upon all questions of law necessary for their guidance in returning their verdict ...”

In State v. Drane, supra, our Supreme Court held that where there is evidence of the defense of driving and operating an automobile in good faith in the honest belief that the defendant “had good legal title by purchase” (416 S.W.2d at 107) which was entirely ignored in an instruction which purported to cover the whole case is erroneous and constitutes reversible error. And in the later decision of State v. Tate, supra, it was held that criminal intent is an essential element of the offense of driving, operating and using a motor vehicle without the permission of the owner, and that an instruction which purports to cover the whole case but which entirely ignores a defense supported by evidence is erroneous. The conviction was reversed because the verdict-directing instruction purported to cover the whole case and ignored the defense. See State v. McLarty, supra, and cases cited in State v. Drane, supra, including State v. Busch, 342 Mo. 959, 119 S.W.2d 265 (1938); State v. Collins, 292 Mo. 102, 237 S.W. 516 (1922); State v. Slusher, 301 Mo. 285, 256 S.W. 817 (1923).

There' is no question that before the jury could find the defendant guilty of operating a vehicle without the permission of the owner, the state must prove and the jury must find, beyond a reasonable doubt: (1) that the defendant operated the vehicle (2) without the permission or consent of the owner or the person having lawful custody thereof and (3) that the defendant operated the vehicle without an honest belief that he had the permission of the owner or a person whom he in good faith believed to be the owner. An instruction which purports to cover the whole case but which entirely ignores a defense supported by the evidence of operating the vehicle with the honest belief that the defendant had permission to do so is erroneous. State v. Drane, supra; State v. Tate, supra.

We believe that Instructions 1 and 2 are erroneous and the judgment should be reversed and the cause remanded. First, the verdict director should have negated the defense of “honest belief” or should have included a cross-reference in a separate numbered paragraph to the defense. State v. Drane, supra, and cases cited therein; Cf. State v. Winn, supra.

Secondly, we believe Instruction No. 2 improperly shifted the burden of proof to the defendant to require the jury to find that the defendant operated the vehicle in the honest belief that he had permission from the owner or lawful custodian.

Instruction No. 2 given by the trial court authorized the jury to acquit if it found that the defendant operated the vehicle with an honest belief that he had permission. If a reasonable doubt existed in the minds of the jury that defendant had an honest belief that he had permission, that doubt would of necessity be resolved in favor of the State, and the jury would be required to convict.

But the true test, as exemplified in MAI-CR 7.80 is that, in order for the jury to find guilt, it must find beyond a reasonable doubt that the defendant did not operate the vehicle in the honest belief that he had permission from the owner or custodian so that if a reasonable doubt existed in the minds of the jury that he did not operate the vehicle in the honest belief that he had permission, that doubt would be resolved in favor of the defendant and the jury would be compelled to acquit.

We believe Instruction No. 2, therefore, improperly shifted the burden of proof to the defendant to require the jury to find that he did operate the vehicle with an honest belief that he had permission whereas the jury should have been required to find that the defendant did not operate the vehicle in the honest belief that he had permission.⁶

Appellant’s second point is that the court erred in permitting the prosecutor in his opening statement to comment on “other crimes” which was compounded by the testimony of Officer Stoll when' he testified to running a record check on the defendant’s driver’s license, and that he arrested defendant on “various other charges” and that Officer Stoll testified to hearsay information relating to the disposition of other charges.

Appellant relies on the well-established rule that proof of the commission of separate and distinct crimes is not admissible, State v. Reese, 274 S.W.2d 304 (Mo. banc 1955), unless within one of the exceptions to show motive, intent, absence of mistake or accident, a common plan or identity. But this general principle was not violated under the circumstances of this case.

The same objection was made in State v. McLarty, 467 S.W.2d 58 (Mo.1971). Defendant complained that the testimony of the officer “At that time I advised [him] he was under arrest for stealing over fifty, an automobile * * * ” was evidence of a separate and distinct offense. The Supreme Court rejected the contention holding that the reference was to the questionable possession and driving of the automobile and not as indicating that the defendant committed another crime. 467 S.W.2d at 61.

The trial court did not err in overruling the objection in the opening statement, State v. Paige, 446 S.W.2d 798, 805 (Mo.1969), nor in overruling the objections to Officer Stoll’s testimony. The evidence was part of one continuous transaction and the state is not required to nicely sift and separate the evidence and exclude testimony tending to prove the crime for which the accused is not on trial. State v. Sinovich, 329 Mo. 909, 46 S.W.2d 877 (1931); See State v. Cox, 508 S.W.2d 716, No. 35,290, St. Louis District, April 16, 1974.

Appellant next contends that certain portions of the prosecutor's argument were improper. We need not discuss these contentions for the comments may not again occur. We only refer to the general principle that a prosecutor’s remarks must be confined to the record and the legitimate inferences to be drawn therefrom. State v. Baldwin, 358 S.W.2d 18, 27 (Mo. 1962).⁷

Because we believe the instructions were erroneous, we reverse the judgment of conviction and remand the cause.

The judgment is reversed and the cause remanded for further proceedings.

WEIER, J., concurs. KELLY, J., concurs in separate opinion.

1 . “INSTRUCTION NO. 1. The Court instructs the jury that if you find and believe from the evidence in this case beyond a reasonable doubt and in the light of these instructions of the Court that in the County of St. Louis and State of Missouri on the 8th day of November, 1972, the defendant, Willie Fox, did willfully, unlawfully and feloniously drive, operate and use' a certain motor vehicle, to-wit: a 1964 Plymouth, as mentioned in the evidence, the personal property of the Tree of Lights Church, in the lawful care and custody of its employee, Rev. George H. Grey, without having secured the permission and consent of said owner, if you so find, and if you further find and believe from the evidence beyond a reasonable doubt that the said Tree of Lights Church was the owner of the said automobile, then and there in the lawful care and custody of the said Rev. George H. Grey, then you will find the defendant guilty of Operating a Motor Vehicle Without Consent of Owner. Unless you so find the facts to be as* aforesaid, you will acquit the defendant.

‘Feloniously’, as" that term is used in these instructions, means wickedly and against the admonition of the law, that is, unlawfully.

‘Wilfully’, as that term is used in these instructions, means intentionally, not accidentally.”

2 . “INSTRUCTION NO 2. The Court instructs the Jury that even if you find and believe from the evidence in this case beyond a reasonable doubt that on or about the 3rd of November, 1972, a certain 1964 Plymouth automobile, the personal property of the Tree of Lights Church, in the lawful care and custody of Rev. George H. Grey was stolen; and even if you further find and believe from the evi-deuce in this case beyond a reasonable doubt that in the County of St. Louis and State of Missouri, on the 8th day of November, 1972, the defendant, Willie Fox, did operate and use said automobile; and even if you further find and believe from the evidence in this case beyond a reasonable doubt that the defendant operated the automobile without the permission of the said Rev. George H. Grey, you must nonetheless acquit the defendant, if you further find and believe from the evidence in this case that the defendant operated said motor vehicle with an honest belief that he had permission to do so from a person he in good faith believed to be the owner and in lawful possession of it.”

3 .“INSTRUCTION NO. 3. You are further instructed that the Amended Information' contains the formal statement of the charge, but it is not to be taken as any evidence of defendant’s guilt.

The law presumes the defendant to be innocent and this presumption continues until it has been overcome by the evidence which proves the defendant’s guilt beyond a reasonable doubt; and the burden of proving the defendant’s guilt rests with the State.

If, however, this presumption has been overcome by the evidence and the guilt of the defendant proved beyond a reasonable doubt, your duty is to convict.

If, upon consideration of all the evidence, you have a reasonable doubt of the defendant’s guilt, you should acquit; but a doubt to authorize an acquittal on that ground ought to be a substantial doubt touching the defendant’s guilt, and not a mere possibility of the defendant’s innocence.”

4 . Officer Stoll never used these words; he stated he arrested Fox for “auto theft, fugitive, St. Louis City, and operating a motor vehicle without owner’s consent, St. Louis County.”

5 . A very vague point — presumably Officer Stoll. Such a point is not compatible with Rule 84.04(d), V.A.M.R.

6 . The new criminal instructions MAI-CR 7.-80 require that the verdict-director incorporate paragraph Third: “That [defendant] did not operate such vehicle in good faith in the honest belief that he had the permission of the owner” (or a person he in good faith believed to be the owner and in lawful possession.) On retrial, we assume MAI-OR would be used.

7 . And see State v. Jackson, 499 S.W.2d 467 (Mo.1973) and State v. Heinrich, 492 S.W.2d 109 (Mo.App.1973) for a collection of cases and principles relating to argument.