State v. Hall

785 S.W.2d 652, 1990 Mo. App. LEXIS 141, 1990 WL 4626
CourtMissouri Court of Appeals
DecidedJanuary 23, 1990
DocketNos. 54348, 55547
StatusPublished
Cited by4 cases

This text of 785 S.W.2d 652 (State v. Hall) 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. Hall, 785 S.W.2d 652, 1990 Mo. App. LEXIS 141, 1990 WL 4626 (Mo. Ct. App. 1990).

Opinion

SATZ, Judge.

Defendant was convicted by a jury of burglary in the second degree, § 569.170 RSMo 1986. He was sentenced as a prior and persistent offender to a term of seven years imprisonment. He appeals. We affirm.

Defendant also appeals from the denial of his Rule 29.15 post-conviction motion but has not briefed or raised any claim of error as to that order; and, therefore, he has abandoned that appeal.

Defendant was charged with burglary in the second degree by “knowingly [entering] unlawfully ... a building, ... for the purpose of committing stealing therein.” § 569.170 RSMo 1986. Defendant contends there was insufficient evidence to show his intent to steal when he entered the building. To resolve this issue, we review the evidence most favorably to the state, accepting as true all facts and reasonable inferences tending to support the conviction and disregarding evidence and inferences to the contrary. State v. Brown, 660 S.W.2d 694, 699 (Mo. banc 1983).

On March 10, 1987, at 11:06 p.m., Officers Craig Feldmeier and James Molden of the St. Louis Metropolitan Police Department received a call that an alarm was activated at the Montgomery Brothers Auto Repair at 2901 Parnell in St. Louis. As the car crested a hill on Parnell, Officer Feldmeier could see the repair shop some 400 feet away. The area was well lighted. As the officers drove toward the repair shop, they saw someone leave the building through a hole in one of the garage doors. Officer Molden drove the car to the repair shop and pulled on to the driveway with the headlights of the car shining on the garage doors. Officer Feldmeier got out of the car, approached defendant, whom he had seen leaving the repair shop, and arrested him. At no time did Officer Feld-meier lose sight of defendant. Officer Feldmeier then helped Officer Molden handcuff a second person who emerged from the building.

At trial, the state produced several pictures of the garage doors as they appeared that night. The pictures also showed the positions of several pieces of a panel from one of the garage doors, which had been scattered about the immediate area around the door. The state also produced the panel pieces, on one of which was a foot print.

The repair shop was being used as a warehouse for storing supplies. In addition, some repair work was done there, and, thus, the building contained mechanic’s tools. Nothing was taken from the shop. The owner of the store testified that he never gave defendant permission to enter the garage on the night in question.

Defendant acknowledges that intent, more often than not, is proved by inferences drawn from circumstantial evidence. State v. Joos, 735 S.W.2d 776, 780 (Mo.App.1987). Here, however, defendant contends the state failed to show any material was taken from the building and also failed to show he ran or resisted arrest. Therefore, defendant reasons, there were insufficient operative facts to support an inference of his intent to steal. We disagree.

At times, to support a burglary charge, the state will show a defendant tried to take or actually took material from the building in question in order to show an intent to steal. See, e.g. State v. McNair, 719 S.W.2d 113, 114 (Mo.App.1986). Our courts, however, have also made the common sense inference that an unexplained intrusion into the building of another, without more, will support a jury’s finding of an intent to steal material located in the building. See, e.g. State v. Harris, 744 S.W.2d 505, 508 (Mo.App.1988); State v. Moore, 729 S.W.2d 239, 240 (Mo.App.1987). That inference is sufficient here.

Defendant also contends the trial court committed plain error in allowing Officer Molden to testify that, upon being arrested, defendant “remained silent” after being read his Miranda rights. During re-direct examination of Officer Molden, the following exchange took place between him and the prosecutor:

Q. After [defendant] was arrested, was he advised of his rights?
A. I would assume so. It’s normal procedure.
[654]*654Q. And was he given the opportunity to make a statement?
A. Yes, sir.
Q. Did he make any such statement?
A. Not to my knowledge he never made a statement to me.
Q. He never said, hey, you got the wrong guys?
A. No, sir.
Q. Hey, I was just walking down the street?
A. No.
[Defense counsel]: Objection.
Q. Hey, I was coming out of a bar?
[Defense Counsel]: Asked and answered, he’s testifying here.
[Prosecutor]: Just asking questions, Judge.
The Court: Okay. Next question.
Q. Did he ever tell you he had just come out of the lounge and just walking down the street and you picked up the wrong guy?
A. No, sir.
Q. But he was given that opportunity to?
A. Yes, sir.
[Defense Counsel]: Objection.
The Court: Be overruled. You opened it up.

Defendant notes that his trial counsel made no specific objection to the prosecutor eliciting testimony from Officer Molden about defendant’s failure to make a statement, and defendant also notes this issue was not raised in defendant’s motion for a new trial. Therefore, defendant now requests us to review the admission into evidence of this testimony as plain error. Defendant’s request is misdirected and, thus, misses the mark.

Plain error here presupposes that defendant’s trial attorney had the right to object to the inquiry made of Officer Mol-den and the failure to exercise this right caused the trial court to commit plain error in allowing Officer Molden’s testimony to stand. But, according to the record before us, defendant’s trial counsel not only had good reason to refrain from objecting, he had an ethical duty not to do so.

The record shows defendant testified in his own behalf. He testified he did not remain silent; rather, he said he told one of the officers “what had happened.” It is apparent from the motion transcript that, at the time Officer Molden was being questioned on re-direct, defendant’s trial counsel knew defendant claimed to have made a statement at the time of arrest. Thus, for defendant, at the time Officer Molden was being questioned, the issue of whether defendant made a statement was, at worst, an issue of credibility between Officer Mol-den and defendant if defendant were to testify, or, at best, a non-issue resolved by the possible inability of Officer Molden to hear any colloquy between defendant and Officer Feldmeier. when defendant was apprehended and arrested by the latter officer.

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Cite This Page — Counsel Stack

Bluebook (online)
785 S.W.2d 652, 1990 Mo. App. LEXIS 141, 1990 WL 4626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hall-moctapp-1990.