State v. Sanford

772 S.W.2d 806, 1989 Mo. App. LEXIS 638, 1989 WL 47660
CourtMissouri Court of Appeals
DecidedMay 9, 1989
DocketNo. 53692
StatusPublished
Cited by2 cases

This text of 772 S.W.2d 806 (State v. Sanford) 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. Sanford, 772 S.W.2d 806, 1989 Mo. App. LEXIS 638, 1989 WL 47660 (Mo. Ct. App. 1989).

Opinion

GRIMM, Presiding Judge.

In this jury-tried case, defendant appeals his convictions of second degree burglary, a Class “C” felony under § 569.170, RSMo 1986, and stealing, a Class “C” felony under § 570.030.3(1), RSMo 1986. We affirm.

Defendant raises three points. First, the trial court erred in denying his motion for judgment of acquittal at the close of all the evidence, because the State failed to make a submissible case. We disagree, because the evidence was sufficient to make a sub-missible case on the charged offenses. Second, the trial court erred in denying defendant’s request for a mistrial when a police officer testified that he verified de[807]*807fendant’s birth date against arrest records. We disagree, because the basis for denial was proper; and the trial court did not abuse its discretion. Third, the trial court “plainly erred in failing to declare a mistrial” based on an officer’s answer to a question from defense counsel. This point was not preserved for appellate review; further, we find no plain error.

Defendant’s first point alleges that the trial court erred in denying his motion for judgment of acquittal. Defendant was charged with and found guilty of acting with or aiding another in the commission of burglary and stealing. Defendant contends that the State failed to make a sub-missible case on these charges.

In examining this point, we view the evidence and inferences in the light most favorable to the verdict, disregarding all contrary evidence and inferences. State v. White, 736 S.W.2d 499, 500 (Mo.App.E.D.1987). “We do not weigh the evidence but determine whether the evidence was sufficient for reasonable persons to have found defendant guilty as charged.” Id.

Further, the State’s case is based on circumstantial evidence. Therefore, “the facts and circumstances relied upon to establish guilt must be consistent with each other and with the hypothesis of defendant’s guilt.” State v. Counts, 671 S.W.2d 818, 819 (Mo.App.E.D.1984). “The facts and circumstances must also be inconsistent with and exclude every reasonable hypothesis of defendant’s innocence.” Id. The circumstances, however, “need not be absolutely conclusive of guilt or demonstrate impossibility of innocence, and the mere existence of other possible hypotheses is not enough to remove the case from the jury.” Id.

Within these standards, we now review the evidence. The record shows that on May 31, 1985, at approximately 3:52 a.m., Des Peres police officers William Gleason and Frank Florence received a call from the police dispatcher that a “silent” alarm was sounding from the Video Plus store on Manchester Road. The officers, who were nearby but in separate cars, proceeded east on Manchester Road, en route to the store. Approximately 20 seconds after receiving the dispatch, and when only three city blocks from the Video Plus store, the officers met a westbound car driven by defendant. The car’s trunk lid was open. Defendant turned the car abruptly toward the shoulder of the road and turned off the car’s lights.

Officer Gleason drove across the westbound lane toward the car and shined his spotlight on it. Defendant stopped the car, alighted, went quickly to the rear of the car, and shut the trunk lid.

When Officer Gleason ordered defendant to stop, a back seat passenger opened the right rear door. The officer heard something hit the ground; when he moved to that side of the car, he saw a VCR under the car. The VCR was later identified as having been taken from Video Plus; its electrical cord had been cut or tom. A pair of gloves was in the middle of the front seat, and a tire iron was on the passenger side of front seat.

In the meantime, the other officer had gone directly to the Video Plus store. The front windows had been broken and a rock was found 20 feet inside the store. The remainder of the VCR’s electrical cord was found plugged into a socket near a broken window.

It is settled that “mere presence and an opportunity to commit the crime is not sufficient to make a submissible case.” White, supra at 501. Further, “the inference of guilt raised by unexplained joint possession of stolen property is, by itself, insufficient;” some affirmative participation must be shown. Id. This “affirmative participation” requirement “may be satisfied by inference, and the evidence need not directly place the defendant in the act of committing the crime for which he is charged.” Id. at 502; State v. Pickett, 642 S.W.2d 703, 705 (Mo.App.E.D.1982).

Here, defendant was apprehended three blocks from the Video Plus store at 3:52 a.m., within a minute or so after the crimes occurred. Defendant was driving the car; it was coming from the vicinity of the store, and the car’s trunk lid was open. [808]*808As the police approached, he turned the car abruptly toward the shoulder of the road and turned off the lights. Further, gloves and a tire iron were found in the front seat, and defendant was in joint possession of the stolen VCR.

This combination of circumstantial evidence was sufficient to make a submissible case on the charged offenses. See, White, supra at 501-502; see also Pickett, supra at 705. Point denied.

In his second point, defendant alleges that the trial court erred in denying his request for a mistrial.

That request was prompted by Officer Gleason’s response to a question regarding the accuracy of the information defendant had given him. The prosecutor asked, “And his birth date; did you ever check that out?” The officer responded, “I believe we checked that against arrest records.” Defense counsel immediately requested a bench conference.

At the bench, defendant first asked the court to strike the response and admonish the jury to disregard it. The prosecutor agreed that this action should be taken. Before a ruling was made on this request, defense counsel also asked for a mistrial. The trial court responded, “The mistrial will be denied because you asked and received the relief you wanted.” When defense counsel restated his request for a mistrial, the court replied, “You got your relief before you asked for the mistrial so I am going to deny the mistrial.” Defense counsel then explained, “... my understanding is I have to first ask for the relief I want and up until the point the court grants it, I may then ask for further relief.”

We agree with defendant that Missouri case law lends support to defense counsel’s explanation. State v. Carter, 641 S.W.2d 54, 60 (Mo.banc 1982), cert. denied, 461 U.S. 932, 103 S.Ct. 2096, 77 L.Ed.2d 305 (1983); State v. Cuckovich, 485 S.W.2d 16, 24 (Mo.banc 1972); See also State v. Brigham, 709 S.W.2d 917, 921 (Mo.App.S.D.1986); State v. Holt, 660 S.W.2d 735, 737 (Mo.App.E.D.1983). These cases suggest that, in addition to a request for a mistrial, a request should be made that the court strike the improper question or statement and instruct the jury to disregard it.

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Related

State v. Swederska
802 S.W.2d 183 (Missouri Court of Appeals, 1991)
Mays v. State
810 S.W.2d 68 (Missouri Court of Appeals, 1990)

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Bluebook (online)
772 S.W.2d 806, 1989 Mo. App. LEXIS 638, 1989 WL 47660, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sanford-moctapp-1989.