State v. Stewart

850 S.W.2d 916, 1993 Mo. App. LEXIS 426, 1993 WL 78559
CourtMissouri Court of Appeals
DecidedMarch 23, 1993
DocketNos. WD 44463, WD 46021
StatusPublished
Cited by6 cases

This text of 850 S.W.2d 916 (State v. Stewart) 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. Stewart, 850 S.W.2d 916, 1993 Mo. App. LEXIS 426, 1993 WL 78559 (Mo. Ct. App. 1993).

Opinion

BRECKENRIDGE, Presiding Judge.

Galen P. Stewart appeals from his conviction for arson in the second degree, § 569.050, RSMo Cum.Supp.1989, for which [918]*918he was sentenced, as a prior and persistent offender, to fifteen years imprisonment. He also appeals from the motion court’s denial of his Rule 29.15 motion for postcon-viction relief. Stewart presents four points on appeal, claiming that the trial court erred in: (1) overruling his motion for acquittal and motion for new trial and entering judgment of guilty because the State did not present sufficient evidence to prove, beyond a reasonable doubt, every element of the offense charged; (2) denying him postconviction relief because he was denied effective assistance of counsel in that trial counsel failed to properly impeach prosecution witness Janice Helton’s credibility; (3) denying him posteonviction relief because he was denied effective assistance of counsel in that trial counsel failed to advise Stewart of the correct range of punishment he faced as a prior and persistent offender; and (4) submitting instruction number four because such does not accurately define reasonable doubt.

The conviction and the judgment on the postconviction motion are affirmed.

Stewart lived with his girlfriend, Beth Carr, and her three children in a basement apartment of a house in St. Joseph, Missouri, with Janice Helton and her family living in the remaining portion of the same house. At approximately 4:30 p.m. on February 26, 1990, Helton was talking on the telephone in her living room when the receiver was jerked from her hand and pulled toward the wall. Helton’s fifteen year-old son, Elvin Ball, testified that he went outside to investigate and he saw Carr drop the telephone wires. Helton followed her son outside. Helton and her son both testified that Stewart yelled that he was going to either get a gun or burn the house down. Donald Bey, a next-door neighbor, testified that he was awakened by “screaming and hollering” and when he looked out the window he saw Carr tearing the telephone wires off the house.

After the argument, Stewart, Carr and her children walked off down the street to Stewart’s father’s house. Helton and her children waited for her husband to come home and then went to her brother’s house, which was four or five blocks away. Hel-ton and her daughter returned to the house about 7:30 p.m., but, after hearing a noise outside, walked back to Helton’s brother’s house. Helton did not return to the house again until around 11:30 p.m., at which time the house was on fire and the fire department was attempting to extinguish the blaze.

Jolene Warthman, a neighbor, testified that when she was returning from work at approximately 11:30 p.m., she saw Stewart, whom she knew, enter the basement apartment. Approximately fifteen minutes later she saw the flames and heard the fire trucks. Bey testified that he was driving down the street just before the fire was discovered and saw a person run between the houses. Bey could not identify the person, but said the person was “around the same height” as Stewart. Bey’s wife called the fire department.

Robert Caw, fire inspector and investigator for the St. Joseph Fire Department, testified that the burn patterns indicated that the fire originated in the basement and was incendiary in nature. Caw testified that the fire had been started at three locations within the apartment: under a door, on a chair and in the center of a mattress. It was Caw’s opinion that a liquid accelerant had been poured around the apartment.

Stewart was arrested for arson by Detective Moore of the St. Joseph police department on February 27, 1990. Stewart told Detective Moore that he was in jail at the time of the fire and had not been to the apartment for two days. Although Stewart was in jail on the night of the fire, he was released at 8:25 p.m.

On January 11, 1991, Stewart was found guilty by a jury of second degree arson. He was sentenced, as a prior and persistent offender, to fifteen years imprisonment. Stewart filed a pro se motion for postcon-viction relief on June 6, 1991. An amended motion for postconviction relief was filed on August 15, 1991. The motions alleged that Stewart had received ineffective assistance of counsel. After an evidentiary hearing, the motion court denied Stewart’s [919]*919postconviction motion and found that Stewart had received effective assistance of counsel. Stewart appeals both from his conviction and from the denial of his motion for postconviction relief.

In Point I, Stewart claims that the trial court clearly erred by overruling his motion for judgment of acquittal at the close of the evidence and his motion for new trial and by entering a judgment of guilty on the charge of arson in the second degree. Stewart argues that there was not sufficient evidence to prove beyond a reasonable doubt that Stewart knowingly damaged an inhabitable structure by starting a fire. Stewart asserts that the State’s evidence was purely circumstantial, was internally inconsistent and did not refute his innocence.

In determining the sufficiency of the evidence on appeal, the court considers all evidence, whether circumstantial or direct, and all favorable inferences that can be drawn therefrom, in the light most favorable to the conviction, and rejects all contrary evidence and inferences. State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1992). Stewart argues that even when the evidence is viewed in the light most favorable to the verdict, the evidence is insufficient to support the verdict. The elements of arson in the second degree are that (1) a building was on fire; (2) the fire was of an incendiary origin, and (3) the defendant participated in the commission of the crime by knowingly damaging a building or inhabitable structure by starting a fire. Section 569.050, RSMo Cum.Supp.1989; State v. Galvan, 798 S.W.2d 185, 188 (Mo.App.1990). Stewart concedes that the first two elements were established but challenges the State’s proof of the third element, namely his participation in the commission of the crime.

Stewart argues that the State’s case against him consisted solely of circumstantial evidence and, as a result, his conviction cannot be affirmed unless the facts and circumstances relied upon to establish his guilt are consistent with each other and with the hypothesis of his guilt, and are inconsistent with his innocence and exclude every reasonable hypothesis of innocence. State v. Biddle, 599 S.W.2d 182, 192 (Mo. banc 1980); State v. Strother, 807 S.W.2d 120, 123 (Mo.App.1991). Stewart’s argument is without merit. The State may only be held to the higher standard of proof required by the “circumstantial evidence rule” if all of the evidence is circumstantial evidence and there is no direct evidence. State v. Newbold, 731 S.W.2d 373, 380 (Mo.App.1987). “Direct evidence is evidence which proves the existence of a fact in issue without other inference of that fact.” Id.

The State did not rely solely on circumstantial evidence. The State presented direct evidence in the form of witnesses who testified as to Stewart’s anger and his statement that he intended to burn the house.

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Cite This Page — Counsel Stack

Bluebook (online)
850 S.W.2d 916, 1993 Mo. App. LEXIS 426, 1993 WL 78559, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-stewart-moctapp-1993.