State v. Willhoyt

816 S.W.2d 938, 1991 Mo. App. LEXIS 1573, 1991 WL 204634
CourtMissouri Court of Appeals
DecidedOctober 15, 1991
DocketNo. 17327
StatusPublished

This text of 816 S.W.2d 938 (State v. Willhoyt) 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. Willhoyt, 816 S.W.2d 938, 1991 Mo. App. LEXIS 1573, 1991 WL 204634 (Mo. Ct. App. 1991).

Opinion

FLANIGAN, Chief Judge.

The trial court, after a non-jury trial, found defendant guilty of stealing, a class A misdemeanor, and she was sentenced to 90 days in the county jail. Defendant appeals.

Defendant’s sole point is that the evidence is insufficient to support the conviction because (a) there was no proof of the corpus delicti of stealing, in that the state did not establish that any property had been appropriated from K-Mart without its consent, and (b) the state’s case was based on circumstantial evidence, the evidence was inconsistent with defendant’s guilt, and the evidence did not exclude every reasonable hypothesis of defendant’s innocence.

The findings of the trial court in a jury-waived criminal case have the force and effect of a verdict of a jury. Mo. Const, art. I, § 22(a); State v. Northern, 472 S.W.2d 409, 411[3] (Mo.1971). Defendant’s challenge to the sufficiency of the evidence requires this court to determine whether there is sufficient evidence from which a reasonable juror might have found her guilty beyond a reasonable doubt. State v. Dulany, 781 S.W.2d 52, 55[3] (Mo. banc 1989). We accept as true all of the evidence favorable to the state, including all favorable inferences drawn from the evidence, and disregard all evidence and inferences to the contrary. Id. This court considers any portions of defendant’s evidence which would support a finding of guilty “because defendant, by putting on evidence, takes the chance of aiding the State’s case.” State v. Johnson, 447 S.W.2d 285, 287[2] (Mo.1969).

A person commits the crime of stealing if he appropriates property of another with the purpose to deprive him thereof, either without his consent or by means of deceit or coercion. § 570.030.1 “[Pjroperty ... is that of another if any natural person, corporation, partnership, association, governmental subdivision or instrumentality, other than the actor, has a possessory or proprietary interest therein.” § 570.010(9). “ ‘Property’ means anything of value, whether real or personal, tangible or intangible.” § 570.010(10). “Appropriate” means “to take, obtain, use, transfer, conceal or retain possession of.” § 570.010(2). “Deprive” means, among other things, “to withhold property from the owner permanently.” § 570.010(7)(a).

The information alleged, in general, that the defendant, on May 22, 1989, in Greene County, appropriated property which was in the possession of K-Mart Discount Stores (“K-Mart”) without the consent of K-Mart and with the purpose to deprive it thereof. The property so appropriated consisted of a nightgown, a jacket, a pair of slacks, and two blouses, all more specifically described in the information.

State’s witnesses were K-Mart employees Tana Lannholm, Connie Mahan, and Thomas Faulkner, and Springfield police officers Bruce Scheiderer and Harold Smith. The sole defense witness was defendant.

Tana Lannholm, a sales clerk in the ladies’ wear department, testified that on May 22, 1989, at the K-Mart store in Springfield, she saw defendant, “with a big flat purse,” going through the ladies’ wear department to the fitting room. Defendant was “only eight feet away.” “The purse looked like it was empty.” Defendant was carrying clothing that she was going to try on in the fitting room. When defendant came out of the fitting room, she had no [940]*940clothing in her hands and Tana noticed that defendant’s purse was full instead of empty. “The purse looked different than when she went into the fitting room.”

After defendant came out of the fitting room, according to Tana, defendant “just went through ladies’ wear and toward the front door. I watched her from the time I saw her go through ladies’ wear all the way through the doors. She went out the front doors. She did not stop at any checkout counter in between. She did not approach me or make any attempt to pay me for anything. This happened around closing time, 9:45 or 10.” She said the store was not very busy that night.

After Tana saw defendant go out the front doors she notified Connie Mahan, assistant manager, and told her what she had seen.

On cross-examination, Tana testified that defendant had K-Mart merchandise when she walked into the fitting room, clothing. “I saw her go into the fitting room with some K-Mart merchandise and the next thing I saw her outside the fitting room walking to the front door.” Tana went to the house telephone near the front door to call Mrs. Mahan, and then saw defendant get into a car on the parking lot. “It did not take very long ... less than a minute.” Asked how long it took Mrs. Mahan to get to the parking lot from the time Tana called her, Tana said, “[Mrs. Mahan] was right there. When we call them, they just like run to the front door.”

Tana also testified on cross-examination that she assumed that defendant’s purse was filled with the items she had taken to the fitting room. Tana testified that no other person was with defendant, and there were no other customers in the ladies’ wear area.

Connie Mahan testified that, after talking with Tana, she asked Tom Faulkner to go outside with her. Tom and Connie approached the car in which defendant was sitting. The car was parked near the store entrance. Connie told defendant she wanted to check her bag, which was a large bag which defendant had in her lap. Defendant was sitting in the front seat on the passenger’s side.

Connie said, “She did not hand me her purse. She continued to hold it for a minute and then informed me I was not going to check her purse. I told her I would not let her leave until I did check her purse. She stuck her purse down between her legs underneath the front seat, like concealing it to a degree. I did not see inside the purse until after the officers arrived. I saw her reach into the purse and take something out, merchandise, clothing. She began to pull it out of the purse and stick it under the seat in the same place where the purse was, to the side of the purse. She removed several items from the purse. We retrieved those items from the car.” The items were state’s Exhibit 1.

Exhibit 1, admitted without objection, consisted of a pair of slacks, a jacket, a nightgown, and two blouses, all with brand names and all fitting the descriptions contained in the information.- Connie testified that the items comprising Exhibit 1 “came from our apparel department. I know that because I recognize the merchandise and they still have tickets on them identifying them as K-Mart merchandise.”

Connie testified that when she encountered defendant in the car, defendant attempted to leave. Connie was holding the door open and defendant was trying to close the door. Defendant insisted that Connie was not going to check the bag. Defendant scooted over toward the driver’s seat. The keys were in the ignition and Connie tried to reach in to get the keys. Defendant grabbed Connie’s arm and there was a struggle. Defendant told Connie that the clothing she was removing from the purse belonged to- her daughter. Defendant did not tell Connie the daughter’s name, nor did defendant produce a sales slip.

On cross-examination, Connie testified that in her phone conversation with Tana, Tana said there was a shoplifting. “I asked Tana a couple of questions to verify she was accurate. I did not talk with her over a few seconds.”

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Johnson
447 S.W.2d 285 (Supreme Court of Missouri, 1969)
State v. Worley
375 S.W.2d 44 (Supreme Court of Missouri, 1964)
State v. Northern
472 S.W.2d 409 (Supreme Court of Missouri, 1971)
State v. Johnston
670 S.W.2d 552 (Missouri Court of Appeals, 1984)
State v. Dulany
781 S.W.2d 52 (Supreme Court of Missouri, 1989)
State v. Ziegler
719 S.W.2d 951 (Missouri Court of Appeals, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
816 S.W.2d 938, 1991 Mo. App. LEXIS 1573, 1991 WL 204634, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-willhoyt-moctapp-1991.