State v. Mullins

637 S.W.2d 435, 1982 Mo. App. LEXIS 3600
CourtMissouri Court of Appeals
DecidedJuly 27, 1982
DocketNo. WD 33202
StatusPublished
Cited by1 cases

This text of 637 S.W.2d 435 (State v. Mullins) 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. Mullins, 637 S.W.2d 435, 1982 Mo. App. LEXIS 3600 (Mo. Ct. App. 1982).

Opinion

SHANGLER, Presiding Judge.

The defendant Mullins was convicted by a jury of an attempt to steal by deceit, a class D felony [§§ 564.011 and 570.030, RSMo 1978] and was sentenced to a term of five years. The defendant contends the evidence was not sufficient for conviction and that there was instruction error in the submission of the offense.

The crime involved three principals: Louella Calvin, the victim, and defendant Eloise Mullins and her confederate Diana Lampo-sona. The site of the encounter was the Woolco store at the Biscayne Mall in Columbia. The victim was at a Woolco counter when she was tapped on the shoulder by the defendant Mullins [a black female] with a billfold in hand, which — she told victim Calvin — she had found and wished to return to the rightful owner. Another woman nearby [a white female, Lamposona] stepped up, said she was not afraid to open the purse, and pulled out some money. [The black female was nicely dressed and attractive. The white female was excessively heavy, over two hundred pounds. The victim had no acquaintance with either of them.] The defendant Mullins [the black female] said she was employed at the Montgomery Ward office and would go there to consult with her boss as to the disposition of the money found. She asked the victim to come along as a witness that she had turned the money in. The white female said she would go along. With that, the white female opened the billfold, took out the money, held it up, restored the currency to the receptacle, and returned the billfold to the black female. The victim was able to see that the money was held by two binders, but could not tell the amount.

They entered a car [described by the victim as a yellow or tan Buick with a vinyl top] and the white female drove them to the Ward store nearby. The defendant [the black female] emerged and went into the Ward store. She returned after some fifteen minutes and explained that her boss wished to speak with each of them, one at a time. The white female went first, and after some fifteen minutes returned with information that the boss was engaged in a business meeting and could not talk to the victim for another half hour, but that the white female would convey his instructions as to what to do. The white female [Lam-posona] reported that the boss had telephoned Washington, D. C. in her presence and learned that the money was illegal, that the rightful owner would not claim the funds. They were told that the boss advised the three of them to pay the taxes and then share the rest in equal parts, since they had come as witnesses. Lamposona reported also that “we had to put up some money to show that we wouldn’t have to spend this money for 30 or 60 days.” This, she explained was “earnest money.” The defendant then asked the victim how much she could “put up as earnest money.” She responded that she did not know. The white female [Lamposona] said she could put up $9,000. The victim responded that she could not furnish that much. Lamposo-na then asked: “[H]ow much can you put up?” She asked victim Calvin also whether she had a savings account. The victim responded that she did, but could not get to it. Lamposona then asked the victim how much there was in her check account. The victim consulted her checkbook in a manner open to the view of the other two and Lamposona then remarked: “[W]ell, you can put up $8,000.” The victim refused that, but agreed to put up $7,000 and wrote out a check for that amount. The defendant then explained to the victim that she would photostat the money the victim put up and after that was done, they would return the money to her. That, the defendant explained, was the procedure described to her by her boss at the Ward office.

The check for the $7,000 executed by the victim in hand, the three drove up to the window of the Commerce Bank drive-in facility at the Biscayne Mall and tendered the instrument for cash. The victim was directed into the facility since there was not sufficient cash at the window. Lamposona accompanied the victim inside. The banker [437]*437Nix persuaded the victim Calvin for reasons of security to accept a cashier’s check rather than cash. Nix attempted to probe the victim if anything was amiss to prompt the need for such a large sum. Lamposona made light of the subject and explained it was for “a business deal they were getting into, some type of business venture, and they needed the cash at that time.” Lam-posona then advised the victim to have the check made payable to herself and that the victim “could then endorse it over for whatever business purposes she wanted.” The three then drove to another bank to cash the check; the victim and Lamposona presented the check, but they were told the check would have to be presented to the bank where the victim had an account. In this interim, the defendant [the black female] drove the car around the block. They then drove to the Commerce Bank. On the way, they stopped at a Pizza Hut because the defendant said she had to call her boss. The other two, the victim and the white female, continued to the bank. The car was parked on the business lot, and the two went up to the teller where Lamposona directed that “she’d like to have this all in large bills.” The victim was referred to the vice-president, Nolke, and he asked to speak with her alone. [Nolke had been informed by the Biscayne Mall facility that the victim, depositor Calvin, had requested a sizea-ble check withdrawal, and Nolke directed the tellers at the main bank to alert him when she arrived to present the cashier’s check for cash.] Calvin was nervous and reticent to talk. The victim told Nolke: “I wasn’t supposed to tell him anything that was going on.” Lamposona had warned her that the victim should not say anything to anyone. Nolke asked Calvin to remain there and dashed to the car park to confront the white female whom he had seen in the bank lobby with the victim. As he did so, Nolke spied two females, a white woman [the female he had seen in the bank lobby with the victim] and a black female [the defendant] enter a yellow car and depart rapidly. Nolke noted the license plate number and telephoned the description to the police.

Later that day a car of that description driven by a black female was stopped by the police. A very large white female lay on the back seat. The police took from the purse of the black female what appeared to be a stack of United States currency, about one-half inch in thickness, encased in a $1,000 bank wrapper, but actually composed of two outer $2 bills around a multilayer of play money. Taken from the automobile was also a black wig worn by the defendant during the encounter with the victim, and other personal accouterments. The two female occupants of the car were identified at the scene of arrest by the victim as the principals in the scheme for her money — the defendant and Lamposona. The victim was at first somewhat halting in the identification of the black female as a principal because at that confrontation she sported an afro hairstyle, and not the black wig of wavy hair [then recovered in the car] she wore during the criminal encounter.

The statute defines that [§ 570.030.-1]

“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.”

Thus, the substantive crime of stealing is accomplished by the appropriation of the property of another with the purpose to deprive that other of the property accomplished without the consent of the other, or by deceit, or by coercion.

The statute defines also that [§ 564.011.1]

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Related

State v. Merchant
871 S.W.2d 102 (Missouri Court of Appeals, 1994)

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Bluebook (online)
637 S.W.2d 435, 1982 Mo. App. LEXIS 3600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mullins-moctapp-1982.