State v. Schneider

585 S.W.2d 114, 1979 Mo. App. LEXIS 2904
CourtMissouri Court of Appeals
DecidedJune 11, 1979
DocketNo. 30115
StatusPublished
Cited by2 cases

This text of 585 S.W.2d 114 (State v. Schneider) 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. Schneider, 585 S.W.2d 114, 1979 Mo. App. LEXIS 2904 (Mo. Ct. App. 1979).

Opinion

ROBERT R. WELBORN, Special Judge.

On an information charging burglary in the second degree and stealing in connection therewith, a jury in the Jackson County Circuit Court found William J. Schneider guilty of the burglary charge. The jury could not agree on punishment and the court fixed the punishment at five years’ imprisonment. The defendant waived the filing of a motion for new trial and judgment of conviction was entered on October 14, 1976.

On June 20, 1977, Schneider filed a motion under Rule 27.26 to set aside the judgment of conviction. By an amended motion the grounds for relief included the allegation that the waiver of filing of motion for new trial and appeal resulted from improper advice of his trial counsel. The motion also claimed inadequate assistance of counsel at trial.

A hearing was held on the motion. The trial court found that the waiver of filing of motion for new trial and appeal was induced by erroneous advice of trial counsel and set aside the judgment in order to permit the filing of a motion for new trial. See State v. Jones, 446 S.W.2d 796 (Mo. 1969).

A motion for new trial was filed and overruled. Appellant was again sentenced to five years’ imprisonment.

On December 26, 1974, at around 7:20 A.M., Charles Conyers, principal of the Benton School in Independence, went to the school building in response to a call from the building custodian. When he got to the building, Conyers found policemen and firemen there. The firemen were putting out a fire in the basement of the building. Co-nyers discovered that a glass window had been broken on an outside door and that glass in a door between the kitchen and cafeteria inside the building had been broken and the cafeteria ransacked. Items of food were missing from the kitchen and vending machines in the building had been broken into. The principal’s office had been ransacked. Conyers noticed that a tray which ordinarily was on his secretary’s desk was on the floor in the office.

Police laboratory personnel were called to the scene and they examined the area for fingerprints. Fingerprints were found on the tray on the floor near the secretary’s desk and on a sanitary napkin dispenser and nurses’ storage cabinet.

At the trial, the police fingerprint technician compared the fingerprints so found with those of appellant and concluded that the prints were those of appellant.

Appellant offered alibi testimony of his former wife, two sisters and his mother to the effect that appellant was at his mother’s house throughout the night of December 25. His former wife testified that he was with her during Christmas Day.

In this court, appellant first contends that the trial court should have sustained his motion for acquittal because there was not sufficient evidence that appellant acted with the requisite intent to be guilty of the crime of burglary. Appellant relies upon the fact that the jury did not find him guilty of stealing and argues that, since entry with intent to steal was the basis of the burglary charge, there has been no showing that his entry was with intent to commit a felony. This contention is answered in State v. Pauley, 515 S.W.2d 824, 825-826[4-7] (Mo.App.1974). In that case the court noted that actual stealing is not essential to a burglary conviction and an acquittal on that charge is not inconsistent with a finding of guilt on a burglary charge, based upon entry with intent to steal. See also State v. Massey, 542 S.W.2d 88, 90[1 — 4] (Mo.App.1976).

Here the presence of appellant’s fingerprints inside the school, coupled with evidence that he had no permission to be there, was sufficient to permit the jury to find that he broke and entered the building. [116]*116State v. Schleicher, 442 S.W.2d 19 (Mo. 1969). The evidence would further warrant a finding by the jury that the breaking and entering was with the intent to steal.

State v. Shepard, 442 S.W.2d 58 (Mo. banc 1969), relied upon by appellant, is of no assistance here. That conviction was reversed on the basis of an instruction which predicated a conviction upon a finding of breaking and entering with intent to steal or commit any other felony. The problem there was the lack of evidentiary support for submission of the other felony intent. Such is not the problem in this case.

Appellant next contends that the trial court erred in admitting into evidence State’s Exhibit No. 6, the alleged fingerprint record of appellant. Appellant contends that the record was not properly identified as a business record and that in the absence of evidence that it was appellant’s fingerprint record, its admission into evidence was error. Appellant relies upon the plain error rule (Rule 27.20) inasmuch as this objection was not voiced at the trial.

Ms. Virginia Strohm, the fingerprint technician for the Independence Police Department, testified that she compared the latent prints found in the school building with those on State’s Exhibit No. 6 bearing the signature of William Schneider. According to Ms. Strohm, she received the inked fingerprint card from “detention.” “They fingerprint people as they come in.” The items, notations and fingerprints on the card are there when she picks up the card from the detention area. Detention people work under her supervision in preparing the fingerprint cards. The card is a record of the police department, kept under her custody and control. On the basis of Ms. Strohm’s testimony, the exhibit was admitted into evidence without objection.

Appellant now contends that the exhibit was not qualified as a business record under Section 490.680, RSMo 1969, because there was no evidence of the mode of preparation of the exhibit and no evidence that the entries thereon were made near the time of the act, condition or event.

On this record it may not be said that the trial court abused its discretion in admitting Exhibit No. 6 in evidence. The witness who identified it was the custodian of the record; she testified to its mode of preparation and to the time of the making. Her testimony did hot show the exact time at which this exhibit was prepared but it did show the routine followed and that the preparation was under the supervision of the witness-custodian. This testimony was sufficient to show that “the sources of information, method and time of preparation were such as to justify its admission.” § 490.680. See State v. Boyington, 544 S.W.2d 300, 305-306[7, 8] — [12, 13] (Mo.App.1976); State v. Jones, 518 S.W.2d 322, 324-325[1, 2] (Mo.App.1975).

Appellant’s next assignment of error is based upon a remark of the prosecutor in his closing argument. In the course of his argument, the prosecutor stated:

“If there had been any doubt that those fingerprints were anyone’s other than the defendant’s, you would have heard from a defense expert in this case. You would have heard from somebody hired * * At this point defense counsel objected and asked that the jury be instructed to disregard the prosecutor’s comment.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Ealey
624 S.W.2d 465 (Missouri Court of Appeals, 1981)
State v. Crow
600 S.W.2d 162 (Missouri Court of Appeals, 1980)

Cite This Page — Counsel Stack

Bluebook (online)
585 S.W.2d 114, 1979 Mo. App. LEXIS 2904, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-schneider-moctapp-1979.