State v. Shubert

747 S.W.2d 165, 1988 Mo. App. LEXIS 3, 1988 WL 113
CourtMissouri Court of Appeals
DecidedJanuary 5, 1988
DocketNo. WD 39278
StatusPublished
Cited by8 cases

This text of 747 S.W.2d 165 (State v. Shubert) 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. Shubert, 747 S.W.2d 165, 1988 Mo. App. LEXIS 3, 1988 WL 113 (Mo. Ct. App. 1988).

Opinion

CLARK, Judge.

Mitchell Jay Shubert was convicted by a jury of the offenses of second degree burglary, stealing and auto theft and he was sentenced to consecutive terms totaling twenty-three years. On this appeal, he seeks reversal of the convictions contending (1) the trial court erred in failing to instruct the jury on the special negative defense of claim of right, (2) joinder of the burglary and auto theft counts should not have been allowed, and (3) the trial court erred in denying a motion of defense counsel for leave to withdraw.

Although sufficiency of the evidence is not an issue raised on appeal, the facts of the case must be outlined to provide a framework for discussion of appellant’s first two points. Viewed most favorably to the state, in conformity with the jury’s verdict, the facts were as follow.

During a time in 1986 relevant to this case, appellant was living in Columbia with Debra Hatcher and had the permissive use of her automobile. On occasion, appellant would leave in Hatcher’s car at mid-day and not return until the early hours of the next morning. He discouraged any attempts by Hatcher to accompany him and when he returned, he had objects in the car trunk which he kept concealed.

On August 31, 1986 in the general time period when appellant was using Hatcher’s car for undisclosed purposes, parties named Cooper returned home from a vacation and found their residence had been burglarized. The following day, the Cooper’s neighbors, the McNeils, also came home and discovered their house had been entered. Various items of personal property were missing from each residence.

On September 3, 1986, appellant moved his personal belongings from the Hatcher residence. He used Hatcher’s car for this purpose and also had her permission to use the car to attend a court hearing that morning. Instead of appearing as he had been required by the court, appellant left Columbia in Hatcher’s car intending to go to New York. From time to time during the next two weeks, appellant called Hatch-er collect but refused to say where he was. Hatcher requested the return of her car but appellant replied that he still needed it.

On September 17,1986, Hatcher reported the car stolen and six days later, appellant was arrested in St. Louis. A search of the Hatcher car, which appellant was then driving, revealed articles stolen from the Cooper and McNeil residences and burglary tools. Appellant was charged with and convicted of four counts of burglary and stealing and one count of auto theft, the latter charge involving his taking of the Hatcher vehicle.

Appellant’s first point asserts that the verdict directing instruction was in error for failing to include the defense of claim [167]*167of right as provided in MAI-CR 3d 324.02.1 Notes on Use and § 570.070, RSMo 1986. Appellant argues that the jury should have considered whether he held an honest belief that he had a right to possession of the automobile based on consent from Hatcher.

To warrant submission of the defense of claim of right, there must be sufficient evidence to enable the court to infer that the accused honestly held that belief. State v. Quisenberry, 639 S.W.2d 579, 584 (Mo. banc 1982). Mere assertion by the defendant that he entertained an honest belief in a legal right is not sufficient to satisfy the burden upon defendant under § 570.070, RSMo 1986, to inject the issue of claim of right. State v. Quisenberry, 639 S.W.2d at 585. Where there is no evidence in the case beyond the subjective conclusions of the defendant concerning his claim of right, that issue is not in the case. State v. Seddens, 624 S.W.2d 470, 474 (Mo.App.1981).

The only evidence in this case showed that appellant had permission to use Hatcher’s car for the sole purpose of attending a court hearing in Columbia on September 3. Instead, appellant left the city with the vehicle, refused to tell Hatch-er where he had gone with the car and also refused her requests to return the vehicle. Some three weeks later, he was still in possession of the car in St. Louis and the automobile was returned to Hatcher only by reason of appellant’s arrest. Even appellant agreed in his testimony that Hatch-er told him to return the car, but he “put it off.” Although appellant did acquire possession of the car on September 3 with the owner’s consent, he exceeded the authority given. There was no evidence from which a jury could have found that appellant had any basis to believe he had a right to the car subsequent to September 3. Consequently, the court did not err in refusing to instruct the jury on the defense of claim of right.

In his second point, appellant asserts that the trial court erred “in allowing the charges of burglary and stealing of [sic] the McNeil and Cooper homes to be joined with the charges of stealing Debra Hatch-er’s automobile.” The contention is that the burglaries and the automobile theft were unrelated crimes which should not have been joined in a single information and should not have been tried to the same jury. Appellant claims he was prejudiced in that the jury was more favorably disposed to convict on the auto theft charge because of evidence submitted on the burglary charges where proof of appellant’s complicity was stronger.

The initial problem in reviewing this claim of error is that appellant directs attention to no ruling by the trial court which “allowed” the five counts of the information to be tried conjunctively. There was no pre-trial objection made to the composition of the information, no motion to sever the counts was filed and the new trial motion did not mention the present claim of error. Even under the aegis of plain error, Rule 30.20, which appellant seeks to invoke, there is no basis for relief because, as the following discussion will demonstrate, there was no error.

We first consider the issue of improper joinder. Two or more offenses may be charged in the same indictment or information if the offenses are of the same or similar character or are based on the same act or constitute parts of a common scheme or plan. Section 545.140.2, RSMo 1986. The essential test in determining whether a common scheme or plan exists, in a case involving a single defendant acting alone, is the requirement that all the offenses charged must be products of a single or continuing motive. State v. McCrary, 621 S.W.2d 266, 271 (Mo. banc 1981). Liberal joinder of offenses is favored to achieve judicial economy. State v. Smith, 682 S.W.2d 861, 863 (Mo.App.1984). Whether join-der of offenses is unduly prejudicial to a criminal defendant is a separate issue from the question of whether offenses have been properly joined under Rule 23.05. State v. McCrary, 621 S.W.2d at 271 n. 7. Joinder is either proper or improper under the law. State v. Clark, 729 S.W.2d 579, 581 (Mo.App.1987).

We agree with appellant that join-der of the burglary and auto theft offenses [168]*168in a single information was improper. There was no link showing the burglaries and the auto theft to have been components of a common scheme or the products of a single motive such that joinder was permissible.

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Bluebook (online)
747 S.W.2d 165, 1988 Mo. App. LEXIS 3, 1988 WL 113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-shubert-moctapp-1988.