State v. Wade

711 S.W.2d 523, 1986 Mo. App. LEXIS 4071
CourtMissouri Court of Appeals
DecidedApril 30, 1986
DocketNos. 14354, 14355
StatusPublished
Cited by5 cases

This text of 711 S.W.2d 523 (State v. Wade) 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. Wade, 711 S.W.2d 523, 1986 Mo. App. LEXIS 4071 (Mo. Ct. App. 1986).

Opinion

CROW, Judge.

Gregory Wade (“defendant”) was charged by information with the class C felony of burglary in the second degree, § 569.170, RSMo 1978, and was charged by another information with the class C felony of stealing a firearm, § 570.030.3(3)(d), RSMo Cum.Supp.1984. As demonstrated by the summary of the evidence, infra, both accusations arose from the same incident. The trial court consolidated the charges for trial, and defendant waived his right to trial by jury as to both charges. Rule 27.01(b), Missouri Rules of Criminal Procedure (16th ed. 1985). The trial court found defendant guilty of both charges, sentencing him to concurrent terms of two years’ imprisonment. Defendant appeals from the burglary conviction (appeal 14355), and also from the stealing conviction (appeal 14354). His appeals were consolidated here, and he has filed one brief, raising two assignments of error.

The first assignment of error asserts the trial court wrongly denied defendant’s motion for judgment of acquittal at the close of all the evidence, in that the evidence was insufficient to sustain a finding of guilty of burglary or a finding of guilty of stealing. Defendant’s other assignment of error asserts the trial court wrongly denied defendant’s application for a continuance, which defendant needed in order to secure the attendance of a vital witness. We address defendant’s first point first.

Under Rule 27.01(b), supra, the trial court’s findings have the force and effect of a jury verdict; consequently, our review is as though- verdicts of guilty had been returned against defendant by a jury. State v. Giffin, 640 S.W.2d 128, 130[1] (Mo.1982); State v. Thornton, 704 S.W.2d 251, 252 (Mo.App.1986). In determining the sufficiency of the evidence, we accept as true all evidence in the record tending to prove defendant's guilt, together with inferences favorable to the State that can reasonably be drawn therefrom, and we disregard all contrary evidence and inferences. Giffin, 640 S.W.2d at 130[2]; Thornton, 704 S.W.2d at 252. The test is whether the evidence, so viewed, is such that a rational trier of fact could have found beyond a reasonable doubt that defendant was guilty. State v. Bonuchi, 636 S.W.2d 338, 340[1] (Mo. banc 1982); cert. denied, 459 U.S. 1211, 103 S.Ct. 1206, 75 L.Ed.2d 446 (1983); Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791-92, 61 L.Ed.2d 560, 576-77 (1979).

Viewed in accordance with those precepts, the evidence establishes that about 6:30 p.m., Saturday, December 15, 1984, Pemell Barwick and his wife left their home, 2104 Birkhead Road, in Poplar Bluff, to attend a Christmas banquet hosted by Barwick’s employer, a local bank. The Barwicks locked their home, leaving their “outside floodlights,” back porch light and carport light turned on.

Birkhead Road runs generally from west-northwest to east-southeast. The Barwick home is situated on the south side of Birk-head Road, and faces generally northeast by north. Proceeding southeasterly on Birkhead Road from the Barwick property, the next lot on the south side of Birkhead is 2102 Birkhead, on which is situated the home of J.P. and Mary Ellen McLane. Proceeding southeasterly on Birkhead from the McLane property, the next lot on the [525]*525south side of Birkhead is occupied by the Miles Hays residence. The east side of the Hays property abuts Euel Road, which runs generally north and south. Birkhead Road, passing in front of the Hays property, intersects Euel Road, but does not extend east of Euel.

Shortly after 7:00 p.m., December 15, Mary Ellen McLane looked out the back door of her home and observed two people “[m]oving very rapidly through my back yard.” Her yard was illuminated by the lights from the Barwick property, and by a “large security light” at the corner between the McLane property and the Hays property. The backyard of the McLane home abuts the backyards of two residences lying generally south by southwest of the McLane property. Those two houses “also had lights on outside.”

The lights enabled Mrs. McLane to see that the two individuals were carrying “a big white sack type thing and also a slender item.” As the slender item “caught the light,” Mrs. McLane noted it was shiny. Mrs. McLane opined that this object “could have been the barrel of a gun or numerous items.” The white bag, according to Mrs. McLane, could have been a sheet or a pillowcase.

As the two individuals, heading southeast toward the Hays property, passed beneath one of the security lights, Mrs. McLane noticed they both were black, an she assumed both were males by reason of their clothing. Both were wearing trousers, and one was wearing “a sock cap type of thing.” The clothing of the other was light colored.

Mrs. McLane, aware that no black people lived in the neighborhood, telephoned the police.

About 7:15 p.m., December 15, Poplar Bluff police officers Larry Baxter and Roy Lowe, in separate patrol cars, were on a parking lot along highway 67 a short distance from the subdivision where the Bar-wick, McLane, and Hays homes are situated. The officers received a dispatch about the activity in the subdivision, and immediately started in that direction.

Baxter explained that the subdivision lies west of the “Wal-Mart shopping mall area.” An aerial photograph shows that Euel Road lies west of and parallel to the rear (west) property line of the mall, and that a strip of land lies between Euel and the mall boundary. This strip is divided into lots, lying side by side from south to north. The lots face Euel, and back up to the mall boundary. Some of the lots have houses; others are vacant. Immediately south of the mall, on land abutting the rear line of the two southernmost lots (both of which are unimproved), is the Oak Haven Women’s Clinic.

Baxter, coming south on highway 67, drove into the Women’s Clinic parking lot. Lowe turned into the subdivision and drove south to the corner of Lurlyn Road and Birkhead Road, which is the west terminus of Birkhead. There, Lowe turned east on Birkhead and drove past the Barwick, McLane, and Hays residences to Euel Road. Lowe turned south on Euel, and heard “[mjovement in the wooded area,” the vacant lots between Euel and the rear of the Women’s Clinic. At this point, Lowe was about 500 feet from the McLane residence, and some 200 to 250 feet west of the Women’s Clinic.

Lowe radioed Baxter that he (Lowe) had heard movement. Lowe directed his vehicle's “alley lights” into the area, and a few seconds later Baxter saw two black males running north behind houses situated on the east side of Euel Road. Baxter estimated the distance from his position to the duo as about 200 feet. Neither individual was carrying anything.

Baxter radioed this information to headquarters, then drove north to the rear of the shopping center, stopping behind the “P & N Hirsch Store.” Lowe, who had overheard Baxter’s radio transmission, started toward the rear of the Wal-Mart store.

Baxter, exiting his vehicle, heard a noise about 40 feet to his north. Baxter explained that an eight-foot-high chain link fence runs along the west boundary of the [526]*526mall, separating it from the subdivision.

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Cite This Page — Counsel Stack

Bluebook (online)
711 S.W.2d 523, 1986 Mo. App. LEXIS 4071, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wade-moctapp-1986.