Opinion
No. ED 80297
December 10, 2002
Appeal from the Circuit Court of St. Charles County, Honorable Nancy L. Schneider.
William J. Ekiss, 8019 Forsyth, Clayton, MO, 63105, for appellant.
John Munson Morris III, P.O. Box 899, Evan J. Buchheim, Jefferson City, MO, 65102-0899, for respondent.
Michael Langdon ("Defendant") appeals from the judgment entered on a jury verdict finding him guilty of receiving stolen property in violation of section 570.080 RSMo 2000. Defendant argues that the trial court erred in overruling his motion for judgment of acquittal at the close of the state's evidence and that it erred in denying his motion to strike the entire venire panel. We find no error and affirm.
All further statutory references are to RSMo 2000 unless otherwise indicated.
In his first point on appeal, Defendant argues that the trial court should have granted his motion for acquittal because the evidence was insufficient to support a finding that he was guilty of receiving stolen property. Defendant contends that the state failed to make its prima facie case in that it failed to present adequate proof of his knowledge that the gun in question, a 9 mm Smith and Wesson handgun, was stolen.
We review the evidence in the light most favorable to the verdict.State v. Bird, 1 S.W.3d 62, 64 (Mo.App. 1999). We accept as true all evidence and reasonable inferences therefrom that tend to prove the defendant's guilt, and we disregard all evidence and any inferences to the contrary. State v. Shigemura, 768 S.W.2d 620, 623-24 (Mo.App. 1989). Our task on review is only to evaluate whether the state produced substantial evidence from which a reasonable jury might have found the defendant guilty beyond a reasonable doubt. State v. Bruce, 53 S.W.3d 195, 198 (Mo.App. 2001). It is for the jurors, and not this court, to determine the credibility of the witnesses and to assess weight to the evidence. Id. With our standard of review in mind, we turn to the facts of the instant case as revealed at trial.
The victim testified that in December 1999 he placed approximately $4,500 in a briefcase with three guns, one of which was the 9 mm handgun Defendant was convicted of receiving. He stated that he discovered the briefcase was missing from his home on Christmas Eve. The 9 mm handgun that had been in the briefcase was found during a search of Defendant's home on March 31, 2000. The victim noted that the briefcase containing the guns and money was the only thing that had been stolen from his home during the burglary.
Robert Peyton Coleman ("Friend") was a co-worker of the victim's at the time of the burglary. The victim told Friend that he had removed all of the money from his savings account for fear of losing it in a computer glitch because of the Y2K problem. The victim testified that Friend was the only person he told about withdrawing the money and keeping it at his house and that Friend knew where he lived as Friend had been to his house previously.
Friend testified that he relayed the information about the cash withdrawal to his best friend, Nathan Speaks ("Stepson"), Defendant's stepson. Stepson later gave Friend approximately $2,000 cash. Friend testified that he had been prosecuted and convicted for receiving the money, which was stolen property.
The gun was found in a bedroom in a house where Defendant lived along with his wife, his teenage daughter, and Stepson. Friend testified that the bedroom where the gun was found was not the bedroom of either Stepson or the daughter. The police officer who testified indicated that the bedroom was the master bedroom and contained two closets. One closet contained men's clothing and the other closet contained women's clothing. The room contained a nine-drawer dresser filled completely with male clothing. The officer stated that several guns were found in the man's closet, which contained numerous rifles, shotguns, and pistols, as well as a cardboard box with different types of ammunition.
The officer testified that only one gun found in the bedroom was not in the closet, and it was the stolen 9 mm handgun that Defendant was convicted of receiving. It was partially covered by clothing in one of the dresser drawers, which also contained several containers of ammunition. According to the officer's testimony, two guns found in Defendant's garage were seized in the same search as when the victim's gun was recovered.
The jurors saw photographs of the master bedroom, the guns and ammunition in the closet, and the drawer where the 9 mm handgun and ammunition were found. The picture of the drawer was taken after the 9 mm handgun was removed, but the ammunition is shown in the photograph. The 9 mm handgun was received into evidence as well.
Despite the foregoing, Defendant maintains the state failed to present sufficient evidence for the jury to convict him of receiving stolen property. "A person commits the crime of receiving stolen property if for the purpose of depriving the owner of a lawful interest therein, he receives, retains or disposes of property of another knowing that it has been stolen, or believing that it has been stolen." Section 570.080. The state need not produce direct evidence that a defendant knew the property in question was stolen. State v. Lindsey, 868 S.W.2d 114, 117 (Mo.App. 1993); see State v. Morgan, 861 S.W.2d 221, 222 (Mo.App. 1993). "[S]uch 'guilty knowledge' on the part of the defendant can be inferred by the circumstances and facts in evidence." Lindsey, 868 S.W.2d at 117 ( quoting State v. Tomlin, 830 S.W.2d 31, 33 (Mo.App. 1992)).
Defendant cites to four receipt of stolen property cases in support of his argument: _Bird, 1 S.W.3d at 62; Morgan, 861 S.W.2d at 221;Shigemura, 768 S.W.2d at 620; and State v. Applewhite, 682 S.W.2d 185 (Mo.App. 1984). The defendants' convictions were affirmed in each of the foregoing except Bird, which this court reversed because it found that the state presented insufficient evidence to make a submissible case.Bird, 1 S.W.3d at 66.
In Bird, we found that the state failed to introduce evidence to support a finding "regarding the circumstances in which defendant obtained" the stolen property or "when defendant acquired" the stolen property. Id. at 64. "Thus, there [was] no unexplained possession by defendant of recently stolen property." Id.
In contrast to Bird, Friend's testimony allowed the state to connect Defendant with property that had been recently stolen from the victim. Defendant did not dispute that the gun introduced into evidence at trial was the one owned by the victim and that it had been stolen from him. The location of the gun, ensconced in a dresser drawer, also leads to the logical conclusion that the person possessing the gun had no intention of relinquishing control at that time.
The jury reasonably could have inferred from the evidence that Defendant had received the gun from Stepson and was aware that it was stolen. Defendant did not dispute that another gun stolen from the victim was found in his garage or that Friend had been convicted for receiving stolen cash from Stepson. Stepson was 20 years old at the time and, according to one of the state's witnesses at trial, was not old enough to apply for a gun permit. See section 571.090. As such, the jury could have reasonably inferred that Defendant, who possessed several guns, knew that the only way for Stepson to have acquired the handgun was through illegal means.
In addition, the state introduced evidence that Defendant failed to request a permit to acquire a concealable weapon in accordance with section 571.090. The state presented testimony that the 9 mm handgun fell into the category of a "concealable weapon," and it argued that a failure to abide by the gun registration laws was also a circumstance for the jury to consider in determining Defendant's guilt. See Shigemura, 768 S.W.2d at 623 (noting that evidence that may prove a defendant guilty of an unrelated crime is sometimes necessary to present a "complete and coherent picture") (citations omitted). The evidence indicated that the 9 mm handgun found in the drawer was not registered and that Defendant had not requested a permit to acquire it. See sections 571.080 and 571.090.
Although no testimony was introduced to clarify whether the bedroom actually belonged to Defendant, the jury reasonably could have concluded from the circumstances of Defendant's living situation that the bedroom where the gun was found belonged to Defendant and his wife. The police officer and Friend testified that four people lived in the house, that Stepson's bedroom was the only one on the main floor, and that one of the two upstairs bedrooms had a single bed and rock-star posters on the wall, indicating that it likely belonged to Defendant's teenage daughter. The police officer testified that the gun was found in the master bedroom in a dresser containing only male clothing. Based on this evidence, it was not unreasonable for the jurors to conclude that the bedroom belonged to Defendant and that he exercised dominion over the contents of the dresser drawer.
The jurors saw pictures of the drawer and heard the officer's testimony that the gun was partially exposed amid the clothing before it was seized. The gun in question was presented to the jury at the trial. The jurors, therefore, could evaluate the size of the gun in comparison with the depth of the drawer and its contents in concluding whether the person using the drawer was necessarily aware of the gun's presence.
During his closing argument, the prosecutor noted that Defendant did not call any witnesses, including his wife or Stepson, to dispute the state's case. "The defendant's failure to call such a witness tends to create the logical inference that the defendant did not call the witness because the testimony of the witness would damage rather than assist the defense." State v. Neil, 869 S.W.2d 734, 739 (Mo.banc 1994). Although the jurors could not consider Defendant's failure to testify in reaching their verdict, they could consider the fact that he did not call anyone else to testify on his behalf. See State v. Chaney, 967 S.W.2d 47, 55 (Mo.banc 1998); State v. Neil, 869 S.W.2d 734, 739 (Mo.banc 1994).
We find the evidence was sufficient for the jury to find each of the elements necessary to convict Defendant for receiving stolen property. Defendant's first point is denied.
In his second point on appeal, Defendant asserts that the trial court erred in failing to grant his motion to strike the entire venire panel. Defendant failed to raise this objection during trial. It first appeared in his motion for a new trial.
An examination of the legal file reveals that Defendant failed to preserve this claim of error for appeal. Judgment was entered on July 25, 2001, and Defendant subsequently filed his motion for a new trial on August 16. Rule 29.11(b) instructs that Defendant should have filed this motion within 15 days after the verdict was returned. Defendant could have applied for and received at most an additional 10 days to file his motion. Rule 29.11(b). The record, however, does not include any request or grant of additional time for filing Defendant's motion for a new trial.
Although some allegations of error do not require their inclusion in a timely motion for a new trial, Defendant was required to include his argument regarding striking the venire panel in such a motion in order to preserve that claim for appellate review. See Rule 29.11(b, d). Because he failed to preserve this argument in accordance with the rules, our review of this point is limited to plan error review, and the trial court's judgment will only be reversed upon a finding of "manifest injustice or miscarriage of justice." Rule 30.20.
We have reviewed the transcript with respect to this claim. We note that any confusion during this portion of voir dire was caused by Defendant's mode of questioning. See State v. Cammack, 813 S.W.2d 105, 107 (Mo.App. 1991). We find Defendant essentially asked the jurors whether they would find someone guilty of a crime if the law required that person to do something and the person failed to do it. Unsurprisingly, the jurors answered affirmatively, indicating that they would find that person guilty of the crime of failing to do the thing the law required him to do. We find no plain error. Defendant's second point is denied.
We agree with the state's contention that Defendant's brief misquotes the trial judge's statements at voir dire with respect to Defendant's second point on appeal.
Clifford H. Ahrens, J., concurs.
DISSENT
I respectfully dissent. Just as in State v. Bird, 1 S.W.3d 62, 64 (Mo.App. 1999), the State failed to introduce any evidence to support a finding "regarding the circumstances in which defendant obtained" the gun or when defendant acquired it. Indeed, it is questionable whether the State even proved Defendant did acquire it. It is undisputed that Stepson stole the gun. There is no evidence that Defendant had anything to do with the theft of the gun or knew anything about it. Stepson lived in the house and presumably had access to the unlocked dresser drawer where it was found. There is no evidence that the Defendant regularly used that particular drawer or that he had occasion to look in the drawer at any time after the theft occurred. If Stepson knew Defendant did not regularly use the drawer, he could have placed it there without Defendant's knowledge. We simply don't know.
Assuming Defendant did put the gun in the drawer, there is no evidence as to how he acquired it in the first place. Stepson, knowing Defendant liked guns, may have given it to him as a gift with the explanation that he had purchased it from a friend. Perhaps Stepson told him he had purchased it for himself from a friend and Defendant took it away from him for safekeeping until Stepson could lawfully own it. We simply don't know.
At trial and on appeal, the State made much of the fact that Defendant hadn't registered the gun. But the evidence showed that Defendant hadn't registered any of his guns, including those the State does not dispute were lawfully acquired. Thus, the fact that Defendant did not register this particular gun does not support the inference that Defendant knew it was stolen.
It was not Defendant's burden to provide an innocent explanation for how he acquired the gun. It was the State's burden to prove he either knew or believed it was stolen. Given the State's failure to prove how Defendant acquired the gun, or that he would even have reason to know of its presence in the drawer, I would reverse the judgment.