State v. Garner

538 S.W.2d 937, 1976 Mo. App. LEXIS 2509
CourtMissouri Court of Appeals
DecidedJuly 6, 1976
DocketNo. KCD 28135
StatusPublished
Cited by11 cases

This text of 538 S.W.2d 937 (State v. Garner) 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. Garner, 538 S.W.2d 937, 1976 Mo. App. LEXIS 2509 (Mo. Ct. App. 1976).

Opinion

ROBERT R. WELBORN, Special Judge.

A jury'in the Jackson County Circuit Court found Brenda F. Garner guilty of stealing property valued at over $50.00. §§ 560.156, 560.161 1. (2), RSMo 1969. Acting under the Second Offender Act, the trial court assessed punishment at four years’ imprisonment. This appeal followed.

Inasmuch as appellant attacks the sufficiency of the state’s evidence, a detailed statement of the evidence (taken largely from respondent’s brief) is necessary. All evidence came from State’s witnesses. Appellant presented no testimony.

Phillip Gicalone, a security officer at Stix, Baer and Fuller’s Department Store on Ward Parkway in Kansas City, testified that at approximately 5:30 p. m. on October 17, 1974, he saw the appellant and another woman enter the store through the mall entrance, proceed to the escalator which was located near the center of the store, and ride to the second floor. Neither woman was carrying or wearing a coat or jacket when seen by Gicalone.

Approximately fifteen minutes later, at 5:45 p. m., the appellant and her companion were seen by Ann Smith, another security officer, boarding the escalator on the second floor of the store, and preparing to descend to the mall level. One of the women was carrying a gold leather coat over her arm; the coat was rolled inside out. The appellant and her companion rode the escalator down to the mall level, and walked west through the cosmetic department toward an exit.

[939]*939Five or ten minutes later, Ms. Smith saw both women returning through the cosmetic department toward the escalator. Again, neither was wearing or carrying a coat. The appellant and her companion again rode the escalator to the second floor and headed toward the Junior Sportswear Department, where leather coats were on display.

Ms. Smith left to summon the store security manager, Daniel Anderson. She estimated that the appellant and her companion were out of her sight for approximately three or four minutes during this time. Shortly after she returned with Anderson, she saw the appellant and her companion leaving the Junior Sportswear Department, each carrying a green leather jacket over her arm; both jackets were folded inside out. Anderson and Ms. Smith followed the appellant and her companion down the escalator to the mall level. The two women stepped off the escalator, made a U-turn and headed for the mall exit. When they saw Anderson, the two women started to walk in different directions; however, both were stopped by Anderson before they could leave the store.

The appellant told Anderson that she had purchased the coat at Stix, Baer and Fuller’s Independence store. She also pointed to some little blue “squiggles” on the collar of the jacket she was carrying, and stated that she had placed those marks there to identify her jacket. An examination of the remaining leather jackets in stock in the Junior Sportswear Department revealed that they had the same markings.

Anderson testified that, after being summoned from his office by Ms. Smith, he went upstairs and proceeded in the direction of the Junior Sportswear Department, where he saw the appellant and her companion standing with their backs to him, facing a circle rack of leather coats. The appellant was carrying a green leather jacket folded over her arm, inside out; the other woman was in the process of taking a coat off the hanger. The second woman (Ms. Tarry) placed the coat over her arm in the same manner as the appellant, and slipped the hanger under another coat.

The two women then proceeded toward the escalator, passing at least one cash register. Anderson followed them down the escalator, and when the woman noticed that he was following them, they began to walk more quickly. Anderson caught up with them as they started to split up, and informed them that he “wanted to talk to them about the possibility of wrongful taking of merchandise from Stix, Baer and Fuller.” The appellant immediately volunteered that it “was kind of ridiculous to be arrested for stealing her own coat.”

On cross-examination, Anderson stated that from the time he first saw the appellant and Ms. Tarry, they were not out of his sight for more than five or ten seconds. He also testified that when the coats were taken from the two women, the sale tags were missing.

Debbie Dillon, manager of the Junior Sportswear Department, testified that she saw the appellant and her companion standing by the coat rack with leather coats folded over their arms. After the two women left her department, she went to the coat section and counted to see if any coats were missing. Her investigation revealed four empty hangers; however, no leather coats had been sold that day. Ms. Dillon also noted that the plastic fasteners, which kept the coat hangers attached to the rod, were not severed, as they would have been if the coats had been sold by one of the sales clerks. Ms. Dillon testified that the coat in the possession of the appellant had a wholesale value of $59.75 and a retail value of $120.00.

On cross-examination, Ms. Dillon stated that State’s Exhibit 2, the coat found in the possession of the appellant, came from the Stix, Baer and Fuller store in Ward Parkway. She stated that she could prove that it was in her stock because “I counted the coats, I know that it is my coat.” She added: “And I know it was in my stock.” Ms. Dillon also stated, however, that there was no way she could prove she had that particular coat.

[940]*940Nancy Breidenback, merchandise coordinator at the Stix, Baer and Fuller store in Independence, testified that the particular kind of coat found in the possession of the appellant had never been carried by the Independence store.

Carl Jackman, a Kansas City, Missouri police officer, was called to the scene, and took possession of the two coats. He testified that the appellant stated that she had purchased the coat from the Stix, Baer and Fuller’s Independence store. Another Kansas City police officer, Cecil Stockdale, Jr., questioned the appellant at the scene after advising her of her constitutional rights. The appellant told Officer Stockdale “that she had gone to Stix, Baer and Fuller with the intention of stealing something, but [that] she was arrested before she had a chance to do so.” Again she stated that the jacket in her possession had come from the Stix, Baer and Fuller store in Independence.

Although the information charged appellant with stealing two coats, either acting alone or in concert with another, the ease was submitted to the jury on a charge of stealing one coat by appellant. After ten minutes’ deliberation, the jury returned a verdict of guilty.

Appellant first contends that her motion for judgment of acquittal should have been granted because the state adduced insufficient evidence upon which to predicate a finding of guilt. Appellant contends that the state failed to prove the corpus delicti and further that even if it did so, it failed to prove that the loss was due to appellant’s criminal activity.

On the first aspect, appellant challenges the adequacy of Ms. Dillon’s testimony to show that the loss of the four coats she testified were missing was due to criminality. Appellant questions the frequency of the inventory check, relied upon by Ms. Dillon, as evidence that four coats were missing. The witness stated that she made a count every day. She questions the accuracy of the inventories. No questions along that line were propounded to the witness.

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Cite This Page — Counsel Stack

Bluebook (online)
538 S.W.2d 937, 1976 Mo. App. LEXIS 2509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-garner-moctapp-1976.