State v. Gates

637 S.W.2d 280, 1982 Mo. App. LEXIS 3620
Missouri Court of Appeals·Decided June 22, 1982·No. No. 32721·Published·Cited by 12 cases

Opinion

SHANGLER, Presiding Judge.

The defendant Gates was convicted by a jury of stealing [§ 570.030, RSMo 1978] and was sentenced to a term of five years. The appeal contends that the information was not a sufficient charge of offense and other points of error.

The victim Abston was an eighty-five-year-old male who was attacked in his home by two females and relieved of $200 in cash. Earlier that day, one of the females, Carol Lloyd, [already known to the victim but not by name] came to the home, told Abston that she was out of work and requested financial help. He offered her the use of one of the apartments on the premises until she found employment and gave her $5. She then left but returned some thirty minutes later with a person she introduced to Abston as her sister. They remained with him on the premises some fifty minutes, talked and drank soda pop together. Throughout this time the other female [identified at the trial by the victim as the defendant Gates] was within the presence of the man, never more than fourteen feet away. She was distinctively tall [described by the victim at the trial as nearly six feet in height]. At a time when Abston turned his back, the defendant struck him on the head with a soda pop can, wounded him above the eye and bloodied his nose. A scuffle ensued among the three. Abston heard one female say, “Did you get it?” and the other reply, “Yes.” The females departed immediately and Abston discovered that his pocketbook with $200 was missing from the hip pocket.

The victim described the assailants as [# 1] a white female, 23 to 24 years old, short, about 125 pounds thin and blond, and [# 2] as a white female, 26 to 27 years old, tall, 142 pounds, medium in stature and with black hair. The police interviewed the victim again, this time in the presence of his friend Betty Sariano. Abston told the police he thought the assailants were sisters and that one of them [suspect # 1] was an acquaintance of his friend, Ms. Sariano. A [282] complaint was filed against Carol Lloyd and the other. Three days later, they were taken into police custody. They were placed in a lineup and Abston identified them from the display. That identification was suppressed on the ground that the defendant was seized without probable cause. The court found nevertheless that there was an independent basis for the trial identification of the defendant by the victim and allowed that evidence.

The defendant contends first that the conviction may not stand because the information fails to allege ownership of the property stolen — an essential element of the crime of stealing under § 570.030 [Laws 1977, effective January 1, 1979].

That statute prescribes:

A person commits the crime of stealing if he appropriates property or services of another with the purpose to deprive him thereof, either without his consent or by means of deceit or coercion.1

The essential elements of offense are (1) an appropriation (2) of property or services (3) of another (4) with the purpose to deprive that other of the property or services (5) accomplished without the consent of the other [or by deceit or by coercion]. See The New Missouri Code, Manual for Court Related Personnel § 15.3 (1978). The definitions, among the others, to be accorded these component terms of offense are delineated in § 570.010:

As used in this chapter:
(3) “Appropriate ” means to take . .. possession of;
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(10) “Property” means anything of value, whether real or personal, tangible or intangible, in possession or in action,
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(9) “Of another" property or services is that “of another” if any natural person .. . other than the actor, has a possessory or proprietary interest therein .... [emphasis added]

The contention of the defendant assumes a parity between the proscriptions of former stealing § 560.156 and code § 570.030. The now discarded § 560.156, however, was an offense against ownership in the traditional common law sense so that an averment of ownership of the property was essential to a lawful charge. State v. Cantrell, 403 S.W.2d 647, 650[7 — 11] (Mo.1966). The code § 570.030 now constitutes stealing as an offense against both ownership and property in lawful possession of the other. § 570.030 and § 570.010, definitions (3), (9) and (10). That is, the stealth of the property of another which the code [§ 570.030] interdicts and punishes is “any property in which someone other than the actor has a proprietary or possessory interest.” [emphasis added] § 570.010, Chapter Definitions, Comment to 1973 Proposed Code (9); The New Missouri Criminal Code, Manual for Court Related Personnel § 15.1, p. 15-4 (1978).

The code makes transition from the multifarious common law definitions [larceny, larceny by bailee, larceny by false pretenses, embezzlement, among the others— each with distinctive essential elements]2 to one basic and encompassed crime. The exclusive source of reference to determine the essential elements of the crime of stealing, therefore, is code § 570.030 itself, and not any prior enactment or common law variant.

The information does not aver that the victim Abston owned the property [283] appropriated by the accused Gates. The inquiry remains whether the information avers that the property was appropriated from the possession of the victim Abston. The actual terms of formal accusation [after the preamble of the statutory sections which proscribe and punish the conduct] are that:

the defendant, Diana Lynn Gates, either acting alone or knowingly in concert with another, appropriated U.S. Currency, by physically taking it from the person of Otto Abston, and defendant appropriated such property without the consent of Otto Abston and with the purpose to deprive him thereof.

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State v. Gates, 637 S.W.2d 280, 1982 Mo. App. LEXIS 3620 (Mo. Ct. App. 1982).

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