State v. Mick

674 S.W.2d 554, 1984 Mo. App. LEXIS 4708
CourtMissouri Court of Appeals
DecidedMay 9, 1984
DocketNos. WD 34770, WD 34771
StatusPublished
Cited by13 cases

This text of 674 S.W.2d 554 (State v. Mick) 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. Mick, 674 S.W.2d 554, 1984 Mo. App. LEXIS 4708 (Mo. Ct. App. 1984).

Opinion

LOWENSTEIN, Judge.

After consolidated trial, a jury found Mark and Steve Mick guilty of stealing property having a value greater than $150. Section 570.030 RSMo. 1982. They each received sentences of six mouths imprisonment in the county jail and a fine of $500. On consolidated appeal the defendants challenge: 1) the sufficiency of the evidence submitted to the jury to convict them; 2) the submission of jury instructions relating to punishment; and 3) the court’s failure to sustain objections to the prosecuting attorney’s use of his personal opinion during closing argument.

The facts consistent with the jury’s verdicts, viewed in a light most favorable to the state and disregarding appellants’ evidence except that supporting the judgment of convictions, are as follows. On the evening of Saturday, April 3,1982 and continuing onto the next morning, defendant Steve Mick drove a group of people in a car from Holt, Missouri to the town of Osborn, Missouri. The group included defendant Mark Mick (Steve’s cousin), Gaylen Johnson and Liza Johnson, among others. Liza Johnson testified on behalf of the state. In Osborn, a population of 385, Steve stopped the car and dropped Mark and Gaylen off by the municipal water plant. Steve drove around for ten minutes and then returned to about a block away from the water plant where Mark and Gaylen waited to be picked up. At that time they carried a tool box which was placed in the trunk of the car. Steve drove the group back to Gaylen’s house in Holt, where Mark, Steve and Gaylen all [556]*556carried the tool box out of the car and into the house, where it was left. Liza saw that the box contained a mask and some wrenches. Neither Steve nor Mark Mick resided at Johnson’s house.

William Lamar, a part-time worker for the Osborn Water Department, checked the water plant daily. Sometime after the break-in, he noticed that the door to the plant had been left open and a window broken. He contacted a city council member who called the sheriffs office of De-Kalb County. Mr. Lamar examined the plant and learned that several tools, numerous brass fittings and items for water service hook-ups were missing. He also noticed a gas mask missing, although the box used to store the mask had been left intact. He estimated the value of just the missing fittings and wrenches as being over $400. He testified that no one was authorized to take any of the city property during the weekend of April 3-4. Dean Sprague, the Mayor of Osborn, learned of the break-in and also inspected the water plant. He determined that some pipe wrenches, a gas mask, and an unknown amount of brass fittings were missing, which he valued at approximately $350.

The deputy sheriff for Clinton County, David Owen, obtained a search warrant for Gaylen Johnson’s house upon information supplied by Liza Johnson to law enforcement authorities. The warrant was served on May 5. Among other items, Sheriff Owen found and seized a pipe wrench and a gas mask on a workbench in Johnson’s basement. A second pipe wrench was found near a back step leading to the upper level of the house.

At trial the state offered the gas mask into evidence as Exhibit 1 and three pipe wrenches as Exhibit 2. They were identified by Sheriff Owen as the items seized under the search warrant. When the state asked Lamar to identify Exhibit 1, he responded, “[i]t appears to be identical to the gas mask we had stored in the water plant.” Mayor Sprague identified Exhibit 1 as “just like” the mask missing from the water plant, although he also stated the missing mask had additional parts, a can-nister and straps, that Exhibit 1 lacked. In response to the state’s question posed to Lamar whether he recognized the state’s Exhibit 2, he responded, “They’re identical wrenches to the ones that were taken from the water plant.” Mayor Sprague identified State’s Exhibit 2 as standard pipe wrenches which were new. Testimony by both Sprague and Lamar revealed that the wrenches had been purchased shortly before the break-in. Liza Johnson testified that state’s Exhibit 1 “resembled” the gas mask she saw appellants help carry into Johnson’s house. As to Exhibit 2, she testified, “Those are the wrenches that was in the tool box.”

Under point one appellants contend the court erred in failing to sustain the defendants’ motion to dismiss at the close of the evidence for three reasons. First, the date and time of the alleged stealing was not sufficiently established by the evidence. Secondly, the state’s exhibits one and two have no probative value and “at best, do no more than raise a mere suspicion of guilt.” Third, they argue the testimony of Liza Johnson is so inconsistent as to vital and material issues in the case that it cannot constitute substantial evidence to support the conviction.

Defendants have a due process right to be convicted of the charges only after the state has offered evidence upon which a reasonable trier of fact can find the elements of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1979); State v. Huffman, 659 S.W.2d 571, 573 (Mo.App.1983). In a case resting entirely on circumstantial evidence, the facts and circumstances relied upon by the state to establish guilt must be consistent with each other and with the hypothesis of defendant’s guilt, but they must also be inconsistent with every reasonable hypothesis of innocence. State v. Murphy, 356 Mo. 110, 201 S.W.2d 280 (Mo. banc 1947). However, the circumstances need not demonstrate the impossibility of innocence nor be absolutely conclusive of defendant’s [557]*557guilt. State v. Shaw, 602 S.W.2d 17, 19 (Mo.App.1980).

With respect to the time of the offense, the information charged both defendants with stealing “on or about April 4, 1982,” (a Sunday). The defendants have never made any attack on the validity of the informations or as to their being defective under § 545.030, or impairing their ability to defend the charges. State v. Moore, 642 S.W.2d 917, 923 (Mo.App.1982). Liza Johnson testified to events that occurred on either the evening of April 3 or early morning of April 4. The witness’ inability to precisely recall the hour in which appellants visited the water plant can hardly be deemed fatal to the convictions. Time was not the essence of the offense nor did appellants demonstrate any prejudice. See Rule 28.11; State v. Newhart, 539 S.W.2d 486, 490 (Mo.App.1976).

With respect to the state’s exhibits one and two, appellants object to the lack of any evidence pinpointing the gas mask and wrenches as the items missing from the water plant. They argue “this type of evidence alone is not sufficient to support a finding of guilt beyond a reasonable doubt.” (Emphasis added.) Reliance upon State v. Greer, 655 S.W.2d 593 (Mo.App.1983) and State v. Thompson, 428 S.W.2d 742 (Mo.1968) reveals the fallacy to appellants' argument. In Greer,

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Bluebook (online)
674 S.W.2d 554, 1984 Mo. App. LEXIS 4708, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mick-moctapp-1984.