State v. Holt

603 S.W.2d 698, 1980 Mo. App. LEXIS 3222
CourtMissouri Court of Appeals
DecidedAugust 8, 1980
Docket11339
StatusPublished
Cited by21 cases

This text of 603 S.W.2d 698 (State v. Holt) 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. Holt, 603 S.W.2d 698, 1980 Mo. App. LEXIS 3222 (Mo. Ct. App. 1980).

Opinions

TITUS, Presiding Judge.

As a second offender (§ 556.280 RSMo 1969), defendant was charged with and jury-convicted of stealing a television set having a value of at least $50. §§ 560.156-1(2) and 560.161-1(2) RSMo 1969. Following denial of the after trial motions, defendant was court-sentenced to confinement with the Missouri Division of Corrections for a term of eight years. Defendant appealed and his appellant’s brief in this court contains 12 points relied on.

Point relied on I: “The trial court abused its discretion and erred in failing to grant defendant’s applications for continuance, filed on grounds of unavailability of two defense witnesses, for the reason that said applications were timely, met the requirements of Section 545.720 RSMo., and were necessary to obtain substantial justice because the testimony of said witnesses were essential to the defense of not guilty by reason of mental disease or defect excluding responsibility.”

What two defense witnesses were unavailable, wherein and why the applications for a continuance met the requirements of the law and wherein and why the testimony of the witnesses, whatever it may have been, was essential to the defense stated, is left for us to guess. Appellate courts bear no duty to seek through the transcript on appeal or the argument portion of a defendant’s brief to gain understanding of possible intendments of points presented in a conclusionary and abstract fashion. State v. McMillin, 581 S.W.2d 612, 615[3] (Mo.App.1979). Points relied on which are written contrary to the mandatory requirements of Rule 30.06(d), V.A.M.R., and which cannot be comprehended without resorting to the transcript or other sections of the brief, preserve nothing for appellate review. State v. Drake, 514 S.W.2d 653, 655[2] (Mo.App.1974).

Point relied on II, in essence, claims the trial court erred in not suppressing the identification testimony of Colleen Prine Cobb and permitting her testimony at trial because the pretrial identification procedure of the defendant at the Springfield police station was unduly suggestive causing a likelihood of misidentification.

Mrs. Cobb, testifying on the motion to suppress and at trial, recounted that she was employed and present in the store from which the television set was stolen at the time the theft occurred. She stated that defendant had been in the store 15 to 20 minutes before she saw him take the set and that during approximately 10 minutes of that time she had particularly watched defendant “[b]ecause he didn’t seem to have any business in the store, just hanging around . . . just acting very strangely.” The last three or four uninterrupted minutes Mrs. Cobb was watching defendant, she had an unobstructed view of his face. This occurred just before and as defendant turned and walked out of the store with the television.

The evidence was that within two hours after observing the theft, Mrs. Cobb was taken to police headquarters to ascertain if she could identify “the man.” She was not told she would see “the man that took the tv out of the store", and identified defendant as the thief from one of three persons she saw in a room. As did the trial court, we conclude the identification procedures were not impermissibly suggestive. Cf. State v. Dickerson, 568 S.W.2d [702]*702559, 561[3] (Mo.App.1978); State v. Armbruster, 541 S.W.2d 357, 361[4] (Mo.App.1976). But even assuming, arguendo, the line-up or show-up procedures “were imper-missibly suggestive, we find no want of due process in the trial court’s rulings on the identification testimony. Reliability, not suggestiveness, ‘is the linchpin in determining the admissibility of identification testimony and reliability of the in-court identification testimony is to be assessed under the ‘totality of the circumstances.’ . . . Factors to be considered include: (1) The opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation.” State v. Higgins, 592 S.W.2d 151, 160[13, 14] (Mo. banc 1979).

No one can seriously doubt that Mrs. Cobb had and exercised the opportunity to view the defendant at the time the crime was being committed and for several minutes prior thereto. Because of defendant’s appearance and conduct while in the store, Mrs. Cobb’s attention was high. Except for not knowing what kind of shirt he was wearing, Mrs. Cobb was able to and did give the police a most accurate description of the defendant, and was most certain of his identification upon confrontation which occurred in less than two hours after the crime’s commission. Consequently, even if the line-up or show-up procedures had been unduly suggestive, and we have found they were not, there was sufficient reliability in the witness’ in-court identification to overcome defendant’s complaints thereof. Point relied on II is denied.

Points relied on III and IV complain of the trial court’s overruling “Defendant’s Motion for Judgment of Acquittal at the Close of the State’s Case-In-Chief” for various reasons. In this regard we note that after the court overruled the motion, defendant produced 12 witnesses, including himself, in the defense of the cause. By introducing evidence in his own behalf, defendant waived any error with respect to overruling the motion for judgment of acquittal at the close of the state’s case. State v. McMullin, 576 S.W.2d 581, 582[1] (Mo.App.1979); State v. Mack, 576 S.W.2d 550, 552[5] (Mo.App.1978). Nevertheless, point III predicates the claim of error on the false assumption that the evidence failed to establish the value of the stolen television of at least $50. It is enough to say there was ample evidence to establish the stolen item had such a value and the question as to the value of stolen property was properly a question for jury consideration. State v. Webb, 527 S.W.2d 728, 730[3] (Mo.App.1975). Under point IV the claim of error revolves around defendant’s assertion that the evidence was insufficient to properly identify Exhibit 14 as the stolen television set and was insufficient to prove ownership. “One is guilty of stealing if he takes property from the person who has charge and control thereof” [State v. Webb, 400 S.W.2d 84, 86[6] (Mo.1966)] and the evidence was abundant that the set had been taken from the employees of the company who had charge of and control over the television. Two store employees made positive and direct identification of the exhibit as being the stolen set. However, even if the testimony of other witnesses was only to the effect that the exhibit “looks like”, “looks familiar”, “very much like”, “very similar”, etc., such testimony would have been sufficient to warrant its admission into evidence. State v. Ridinger, 589 S.W.2d 110, 113[4] (Mo.App.1979).

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Bluebook (online)
603 S.W.2d 698, 1980 Mo. App. LEXIS 3222, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-holt-moctapp-1980.