State v. Simmons

528 S.W.2d 8, 1975 Mo. App. LEXIS 2077
Missouri Court of Appeals·Decided September 16, 1975·No. No. 35559·Published·Cited by 8 cases

Opinion

RENDLEN, Judge.

Defendant appeals from a conviction of Burglary Second Degree, § 560.045 RSMo [9]*91969, and sentence of five years imprisonment.

On September 27,1972, Mr. Terry Wayne Doss and his family left their home in Berkeley, St. Louis County, at about six o’clock in the evening. Before leaving, Mrs. Doss looked into the room of her eight year old son Bryan and saw the drapes were drawn and windows closed. Bryan’s room faced on the fenced back yard in which the family dog was kept.

When the family returned at about nine-thirty or ten o’clock p. m., Michele, the fourteen year old daughter, observed her wallet lying open on the floor of Bryan’s room. Later it was determined that approximately one dollar in change was missing. She remembered the wallet had been on the dresser in her room earlier that evening. Her parents immediately called the police. When the police arrived, Mr. and Mrs. Doss entered Bryan’s room and discovered a pane of glass in the left window near the lock had been broken. A curtain rod and curtain had been pulled down, broken glass was scattered in the room, some of which, together with a large footprint, was discovered on the bed. The back yard gate was open and the dog missing. Mr. and Mrs. Doss and their fourteen year old daughter Michele testified they did not know defendant and had never given him permission to enter their home. A clear fingerprint was found on the inside window sill which two police fingerprint experts testified was identical to that of defendant. There were other smudged prints on the sill, none of which were clearly identifiable. The defense presented no evidence.

On appeal defendant makes two contentions of error: (1) the court improperly instructed the jury as to the burden of proof, and (2) the State failed to make a submissible case.

We are asked to find error in Instruction No. 2 which is in pertinent part as follows:

“If, upon consideration of all the evidence, you have a reasonable doubt of the defendant’s guilt, you should acquit; but a doubt to authorize an acquittal on that ground ought to be a substantial doubt touching the defendant’s guilt, and not a mere possibility of the defendant’s innocence.” (emphasis ours)

It is the emphasized phrase which defendant complains is prejudicially erroneous. He argues that this “definition” of reasonable doubt amounts to a comment on the evidence and lessens the burden of proof imposed on the prosecution quoting at length from the comments on reasonable doubt found in MAI-CR Comments. Defendant urges that the formulation for “explaining” or “defining” reasonable doubt which has been in use in this State for over a century, see State v. Nueslein, 25 Mo. 111, 124 (1857), adds nothing of value to the phrase it purports to clarify. See MAI-CR Comments, Reasonable Doubt. The case at bar was tried on May 16, 1973. MAI-CR became effective and those instructions promulgated under the rule are to be used following January 1, 1974. Though the questioned instruction is not included in MAI-CR, it was an approved statement of law at the time of trial. State v. Scott, 491 S.W.2d 514, 520[11] (Mo. banc 1973); State v. Taylor, 506 S.W.2d 94, 96[4] (Mo.App.1974); State v. Aikens, 507 S.W.2d 386, 389[6] (Mo.1974); State v. Parker, 509 S.W.2d 67, 72[7] (Mo.1974). Point I is ruled against defendant.

Defendant next contends the evidence was insufficient to make a submissi-ble case. This point, as developed in the argument section of defendant’s brief, relates only to the sufficiency of the fingerprint evidence to show identity; accordingly, only that issue will be considered. Bopp v. Spainhower, 519 S.W.2d 281, 286 (Mo. banc 1975). We review the pertinent evidence in the light most favorable to the State, considering as true all evidence (whether circumstantial or direct) and reasonable inferences favorable to the State. We must disregard all unfavorable evidence [10] and inferences not supportive of the verdict and judgment of the court. State v. Brunson, 516 S.W.2d 799, 801[2] (Mo.App.1974); State v. Chase, 444 S.W.2d 398, 401[1] (Mo. banc 1969). Detective Carty, who had extensive training in detection and comparison of fingerprints, went to the Doss home on the night of the burglary and dusted the broken window and sill for prints. He found several smudges and one clear latent print on the inside window sill. It was he who personally took the defendant’s fingerprints and testified there were more than thirteen points of identity or comparison between the two. In his opinion the fingerprints were identical. A large photograph of both prints with similar points mapped was admitted in evidence and explained to the jury.

Robert Young, a fingerprint expert with the St. Louis County Police Department, also testified that the print taken from the sill and that of defendant were identical. As previously mentioned, each member of the Doss family that testified said they did not know defendant and had never given him permission to enter their home.

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State v. Simmons, 528 S.W.2d 8, 1975 Mo. App. LEXIS 2077 (Mo. Ct. App. 1975).

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