State v. Stillions

689 S.W.2d 96, 1985 Mo. App. LEXIS 3995
Missouri Court of Appeals·Decided February 26, 1985·No. No. 48422·Published·Cited by 2 cases

Opinion

KAROHL, Judge.

Defendant appeals conviction for stealing over $150. § 570.030 RSMo 1978. This case was tried jury waived. Defendant’s motions for judgment at the close of the state’s opening statement and at the close of the evidence were denied. In these motions and on appeal defendant complains that the evidence was insufficient to sustain the conviction. We disagree and affirm the finding of guilt based upon cir-[98] eumstantial evidence and the subsequent judgment and sentence.

In September 1982 defendant moved to St. Louis from Florida with his second wife and her child. He left Florida to avoid a former wife who was threatening to have him arrested for non-payment of child support. He rented an apartment in St. Louis under the name of Dennis Simmons so that his ex-wife or Florida authorities could not find him. He paid two months rent in cash. In the middle of October 1982 he began working for Diquie’s Market in Franklin County, Missouri under his true name.

Prior to the present crime, which occurred on December 10, 1982, there was a break-in and theft of merchandise at Diquie’s. All employees including defendant were fingerprinted and gave their birth dates and social security numbers to the police who ran a record check on each. The employees were told the information was needed for that purpose. The check on defendant disclosed no outstanding warrant for defendant. Defendant did not leave his employment to avoid the possibility of local police uncovering an active Florida warrant.

On Friday, December 10, 1982 defendant was the night manager at the market. He closed the store and locked up between 9:20 and 9:30 p.m. At that time the store and its contents were in good order. Particularly there was a price sheet affixed to a bulletin board mounted on a door in the back room which also contained the store safe. The safe and all doors were checked and locked by defendant.

On Saturday, December 11, 1982 at 7:30 a.m. defendant and the day manager, Mr. Brandt, opened the market. They found the bulletin board ripped off the wall, a price sheet on the floor, the safe open and empty, and several thousands of dollars missing. There was no evidence of a break-in.

Detective Horn seized the price sheet because marked upon it was a partial tennis shoe print. He testified that Brandt and defendant told him they had not walked on the price sheet that morning. He also testified that defendant was wearing tennis shoes. Diquie Omer, the owner of the market, said defendant wore such shoes often. After defendant’s arrest his tennis shoes were seized and ink prints made of the soles. A criminologist compared the dust print [approximately one-fifth of the full shoe print] on the price sheet with the ink prints. Utilizing plastic overlays she found a similar configuration between the dust print and the right shoe print in the area of the ball of the right foot. She found no points of dissimilarity. The cleat marks matched as to relative location and “the wear patterns are similar.” The cleats are cone shaped with the wider circle against the sole of the shoe and the smaller circle exposed. As the sole is worn away the holes become larger and farther apart. This results in the wear pattern. She concluded that defendant’s right shoe could have made the dust print. This was based on the configuration and the wear patterns “which would be the uniqueness.” She could not positively say defendant’s shoe made the dust print. In her view comparison of shoe prints is not as exact a science as ballistics or fingerprints.

Defendant left work early on Saturday, December 11, 1982 and never returned. Within a day or two he moved his residence and rented an apartment in the name of Dennis Harris. In so doing he paid $500.00 cash. Police traced the move through his stepchild’s school records.

The sum of defendant’s evidence was his own testimony. He secured the store on Friday evening and left it in good order. He could not say whether he stepped on the price sheet on Saturday morning before the police secured the scene. He used an alias and paid cash for rent both before and after the crime. His suspicious actions were solely motivated by a need to avoid arrest for failure to pay child support in Florida.

In reviewing the sufficiency of the evidence, even where wholly circumstantial, the evidence is viewed in the light [99] most favorable to the state. All contrary evidence and inferences must be disregarded. State v. Ailshire, 664 S.W.2d 630, 632 (Mo.App.1984). It is not the duty of this court to weigh the evidence, but to determine whether there was substantial evidence to support the verdict. State v. Anderson, 663 S.W.2d 412, 414 (Mo.App.1983). Because defendant in his sole point on appeal claims error in failing to sustain a motion at the close of the state’s opening statement we recognize the authority of the trial court to sustain such motion if it affirmatively and clearly appears that the statement of the charge against the defendant cannot be sustained under any view of the evidence. State v. Seddens, 680 S.W.2d 364, 365 (Mo.App.1984). In testing the sufficiency of the opening statement, the facts stated therein and the reasonable inferences therefrom are accepted as true. Seddens, 680 S.W.2d at 365.

We conclude that the opening statement properly recognized the state’s responsibility to inform defendant of the contemplated course of the prosecution in order that he could meet the charges against him. State v. Kirksey, 658 S.W.2d 60, 61 (Mo.App.1983).

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State v. Stillions, 689 S.W.2d 96, 1985 Mo. App. LEXIS 3995 (Mo. Ct. App. 1985).

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