State v. Wilkerson

786 S.W.2d 236, 1990 Mo. App. LEXIS 532, 1990 WL 36632
CourtMissouri Court of Appeals
DecidedApril 3, 1990
DocketNo. WD 42564
StatusPublished
Cited by3 cases

This text of 786 S.W.2d 236 (State v. Wilkerson) 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. Wilkerson, 786 S.W.2d 236, 1990 Mo. App. LEXIS 532, 1990 WL 36632 (Mo. Ct. App. 1990).

Opinion

GAITAN, Presiding Judge.

Defendant, Darin A. Wilkerson, was convicted of the class C felony of stealing, in violation of Mo.Rev.Stat. §§ 570.030, 570.-040 (1986), and the class A misdemeanor of [237]*237assault in the third degree, in violation of Mo.Rev.Stat. § 565.070.1(1) (1986). The trial court sentenced the defendant to concurrent terms of five years as a prior offender, Mo.Rev.Stat. § 558.016 (1986), on the stealing charge, and to a term of ninety days in the county jail on the assault charge. The sentences to be served consecutively with a sentence previously imposed in Boone County. The defendant appeals his conviction, contending that the trial court erred in submitting verdict-directing Instruction number six in that the instruction submitted the offense of stealing based upon a different form of the offense than charged in the information, and that the instruction omitted essential and necessary language. Judgment affirmed.

In reviewing the evidence in the light most favorable to the state, the following facts were adduced at trial. On February 18, 1989, a security officer for Sears in Columbia, Missouri, monitored the store by way of video surveillance equipment. Two of the system’s eighteen cameras were hooked up to a video cassette recorder and set on constant record. While monitoring the store, the security officer observed the defendant take a pair of jeans from a store rack and hand them to a female companion, Charity Martin. The defendant and Martin walked up to a sales register, and Martin laid the jeans on the counter. The defendant told the sales clerk that he had received the jeans as a birthday gift, but because they didn’t fit, he wanted a refund. When the sales clerk asked for a sales receipt, the defendant stated that he didn’t have a receipt because the jeans were a gift. The sales clerk informed the defendant that without a receipt, the refund could only be in the amount of the sale price. As the sales clerk rang up the refund, he requested a name, address, and signature on the refund receipt. The defendant told the clerk that his wallet had been stolen. Therefore, Martin signed the receipt, using the alias Kim Black.

As the sales clerk prepared to give the defendant the cash refund, the security officer approached the register and alleged that the defendant and Martin were receiving a refund on jeans that the defendant did not own. Although the defendant and Martin denied the allegation, they, as well as the sales clerk, followed the security officer to his office. While in the office, the officer telephoned the police. Following the telephone call, the defendant attempted to leave the office. As the security officer and the sales clerk attempted to prevent the defendant from leaving, an altercation erupted during which the defendant struck the security officer several times on the right temple, knocking him unconscious. Subsequently the defendant was restrained and handcuffed. Upon the arrival of the police, defendant and Martin were transported to the police department.

Defendant contends that Instruction number six, the verdict director for Stealing: Without Consent, MAI-CR3d 324.02.1, modified by MAI-CR3d 304.04, Parties: Defendant’s Responsibility For Conduct of Another Person and MAI-CR3d 304.08, The Principal Offense: Modification When Jury Is Not To Assess Punishment, should not have been submitted because it varied from the facts alleged in the information. The information charging the defendant stated that:

[T]he defendant, acting in concert with Charity Martin, appropriated store merchandise, to-wit: a pair of blue jeans, which said property was in the possession of Sears, and defendant, acting in concert with Charity Martin, appropriated such property without the consent of Sears, and with the purpose to deprive it thereof....

(emphasis added). However Instruction number six submitted that:

[T]he defendant and Charity Martin took a pair of blue jeans, property owned by Sears, and Second, that defendant and Charity Martin did so without consent of Sears, and
Third, that defendant and Charity Martin did so for the purpose of restoring the property only upon payment of reward or other thing of value.

(emphasis added).

In order for a variance between the information, and a verdict directing in[238]*238struction to be fatal, thereby requiring reversal, it must submit a new and distinct offense from that which the defendant was charged. State v. King, 747 S.W.2d 264, 275 (Mo.App.1988). Further, the defendant must be prejudiced by the variance and the variance must be material. State v. Price, 684 S.W.2d 566, 567 (Mo.App.1984). In this case, the defendant argues that the variance between the information is fatal because the instruction charges another crime, “defrauding” Sears as opposed to “depriving” Sears, or at the very least, introduces a new element. We disagree.

The essential elements of the offense of stealing as defined by statute are as follows: “A person commits the crime of stealing if he appropriates property or services of another with the purpose to deprive him thereof, either without his consent or by means of deceit or coercion.” Mo.Rev.Stat. § 570.030.1 (1986). See also State v. Bradshaw, 643 S.W.2d 834, 835 (Mo.App.1982). A long series of cases have judicially interpreted the statute of stealing to have created a single offense that could be committed by different methods. See State v. White, 431 S.W.2d 182 (Mo.1968); State v. Wishom, 416 S.W.2d 921 (Mo.1967); State v. Higgins, 592 S.W.2d 257 (Mo.App.1979); State v. Warfield, 507 S.W.2d 428 (Mo.App.1974). However these cases focus on the elements of consent, deceit, or coercion. Both the statute and case law clearly concluded that there exists only one requisite mental state to commit the offense of stealing and that is the intent to deprive. See Mo.Rev.Stat. §§ 570.010, 570.030, Comments to 1973 Proposed Code; State v. Quisenberry, 639 S.W.2d 579, 582 (Mo. banc 1982); State v. Barker, 700 S.W.2d 128, 130 (Mo.App.1985).

Mo.Rev.Stat. § 570.010.8 defines deprive as:

(a) To withhold property from the owner permanently; or
(b) To restore property only upon payment of reward or other compensation; or
(c)To use or dispose of property in a manner that makes recovery of the property by the owner unlikely;

The defendant contends that the only reasonable way to give effect to the special statutory definition of deprive is to require that the charging instrument specifically require an allegation of by what means a defendant deprived an owner of his property. This contention erroneously interprets the purpose of an information.

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Bluebook (online)
786 S.W.2d 236, 1990 Mo. App. LEXIS 532, 1990 WL 36632, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wilkerson-moctapp-1990.