author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Gary Charles BARBER.
    No. 40465.
    Missouri Court of Appeals, Eastern District.
    Aug. 7, 1979.

      Linda R. Allen, Asst. Public Defender, Twenty-First Judicial Circuit, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   PER CURIAM.

Defendant was charged by information with operation of a motor vehicle without the owner’s consent and with two counts of second-degree burglary and stealing. On appeal from his conviction on all charges, defendant asserts that the prosecuting attorney’s opening statement was fatally defective in failing to state facts to support the motor vehicle charge and the first burglary count; that the trial court erred in admitting certain hearsay testimony over objection to establish ownership of a television that had been taken in one of the burglaries; that it was error to instruct the jury on the motor vehicle operation charge because there was no evidence of operation; and that the court erred when, in submitting the television theft instruction, it required only that the jury find the T.V. to have been in the possession of the victim as opposed to a finding of ownership. We affirm.

Evidence to sustain defendant’s conviction was substantial. An Edmundson police officer responding to a prowler call observed defendant leaving an automobile parked in the vicinity of the two burglaries for which he was later charged. As the defendant walked away from the auto, the resident of the neighborhood who had made the police call, debouched from his house and shouted, “That’s him”; the police officer identified himself and called for the defendant to “Hold it”. Defendant fled on foot with police in pursuit. During his flight defendant dropped an iron tire tool. The chase was brief and defendant was captured. The motor of the auto that defendant was observed to leave had been left running, a screwdriver inserted in the ignition. The fruits of two burglarized residences were in the back seat of the auto which had been stolen.

Both burglarized residences showed signs of forcible entry, including marks on or around doors of the type made by an instrument such as the one defendant dropped during the chase. Defendant presented no evidence.

One of the burglary victims, Donald Berry, testified that there had been a forcible entry into his residence; that a television set belonging to his fiancee which he had been keeping with her permission had been taken. The information filed against defendant alleged theft of a television set belonging to Mr. Berry while the jury instruction required a finding only that it was in his “possession” at the time it was taken. The latter formed a basis for one of defendant’s points of appeal.

Defendant’s first point alleges that the prosecutor’s opening statement was fatally defective in failing to state facts that would constitute either operation or use of a motor vehicle without the owner’s consent, as charged in Count I, or the forcible entry element of the burglary of the Berry residence, as charged in Count II.

The purpose of the prosecutor’s opening statement, as required by Supreme Court Rule 26.02(2), is “to advise the jury of the facts which the State intends to prove and thereby inform the defendant of the contemplated course of prosecution so as to fairly enable the defendant to meet the accusation”. State v. Masters, 530 S.W.2d 28, 30 (Mo.App.1975).

The trial court has broad discretion in acting on motions for acquittal following the State’s opening statement, the exercise of which is reviewable only for “manifest abuse resulting in prejudice to a defendant”. State v. Fenton, 499 S.W.2d 813, 816 (Mo.App.1973). Further, “the court does not err in refusing to dismiss upon opening statement where the prosecuting attorney makes ‘no admissions or statements from which it necessarily followed that the state’s proof would be insufficient to sustain the charge’ ”. State v. Ryun, 549 S.W.2d 141, 145 (Mo.App.1977), quoting State v. McAllister, 468 S.W.2d 27, 29 (Mo.1971).

Regarding Count I, the prosecutor recited the charge of operation and use without the owner’s consent, identified the vehicle in question and stated that defendant had been seen exiting the vehicle.

An opening statement will ordinarily be sufficient if, “when aided by the inferences reasonably to be drawn therefrom, the defendant is informed of the charges against him”, (emphasis added). State v. Masters, supra at 30, citing State v. Jones, 363 Mo. 998, 255 S.W.2d 801, 805 (1953). The obvious inference to be drawn from the prosecutor’s statement is that the State intended to support its charge against the defendant with evidence that he had been seen leaving an automobile identified as having been stolen. There is no question that this fairly apprised the defendant of the essentials of the State’s ease in this regard, and- that it thereby afforded him ample opportunity to meet the charge. Similarly, the statement did not constitute an admission by the prosecutor that the State could under no view of the evidence to be adduced make its case. This court finds no manifest abuse of discretion prejudicial to the defendant in the trial court’s refusal to grant the motion for acquittal.

Addressing the contents of the opening statement as to Count II, the prosecutor again began by stating the charge of burglary in the second degree with respect to Mr. Berry’s residence. He recounted Mr. Berry’s arrival home after work on the day in question to find the television set missing, his call to the police to report a burglary after he had ascertained from his fiancee that she had not removed the set in his absence, and the recovery of the set in the stolen automobile associated with defendant. Defendant complains that the prosecutor failed to set forth facts that would establish “breaking and entering” — an element of the offense of burglary.

While the prosecutor should have fleshed out his largely conclusional comments in this respect with some additional facts, we think the reasonable inferences to be drawn from his statements were adequate to apprise defendant of the essentials of the State’s case on this charge. The actual manner or nature of the entry is important where first degree burglary is charged. State v. Young, 345 Mo. 407, 133 S.W.2d 404 (1939). Where the charge is second degree burglary, there need be no evidence of forcible bursting or breaking. State v. O’Brien, 249 S.W.2d 433 (Mo.1952), cert. denied, 344 U.S. 859, 73 S.Ct. 100, 97 L.Ed. 667 (1952). The fair and reasonable inference of the prosecutor’s comments on Count II was that the State would attempt to show that the defendant had entered Mr. Berry’s residence in his absence, without his consent, with the intent of stealing therefrom, which was all that was necessary to make the case under this count. There was nothing in those comments that admitted the State out of court, and they apprised the defendant of the case against him sufficient to enable him to effectively counter with evidence of his own if he so chose. Accordingly, we conclude there was no error in refusing to grant defendant’s motion for acquittal following the opening statement.

In his second point, defendant objects on the ground of hearsay to the admission of certain testimony regarding ownership of the television taken from Mr. Berry’s residence. Of course, ownership, or, alternatively, lawful possession by the victim of stolen property is an essential element of the State’s case. § 560.156, RSMo 1969; State v. Hill, 528 S.W.2d 798, 801 (Mo.App.1975). Defendant maintains that it was prejudicially erroneous for the State to fail to secure the testimony of the actual owner of the television set instead relying on the allegedly hearsay testimony of Mr. Berry to the effect that he had possession with the owner’s consent.

The record discloses in the following exchange with Mr. Berry on the stand that defendant failed to preserve this point for review:

Q. [prosecutor] Now, this television, you say it belonged to your fiancee; is that correct?
A. Yes.
Q. But she kept it at your house; is that correct?
A. Yes.
Q. And how long had you kept it at your house?
A, Oh, about five (5) weeks.
Q. And, in fact, it was returned to you, was it not?
A. I went and picked it up.
Q. All right. Do you still have it at your house?
A. Yes.
Q. Your fiancee had you keep that T.V. with your fiancee’s permission; is that correct?
A. Yes.
MR. DOWNEY: [defendant’s counsel] Your Honor, I object. That calls for hearsay and conclusion.
THE COURT: Overruled.
Q. (By Mr. Chapnick) Is that correct?
A. Yes.
“Where a question indicates that the response to it will be incompetent or inadmissible, an objection thereto, in order to be available, must be made before the answer is given, as it is too late to object thereafter . . . Lewis v. Hubert, 532 S.W.2d 860, 868 (Mo.App.1975), quoting Minks v. Smith, 367 S.W.2d 6, 8 (Mo.App.1963).
Error in the admission of evidence in the trial court must be preserved for appellate review by objection made therein; but to be effective, the objection must be . timely. State v. Simmons, 500 S.W.2d 325, 328 (Mo.App.1973).

Exceptions to this general rule exist where it appears that the objectionable answer came too quickly to allow the interposition of the objection, State v. Simmons, id. at 328, or where the faulty answer came in response to an apparently proper question. Brown v. Parker, 375 S.W.2d 594 (Mo.App.1964). Neither exception applies in the instant case. The question clearly called for a response in the nature of hearsay, and, indeed, was itself actually framed in terms stating hearsay information to be confirmed by the witness. Additionally, the quoted portion of the record shows that the prosecutor had previously elicited essentially the same information from the witness in an exchange that went unchallenged by defense counsel. No prejudice could have resulted from the subsequent admission of the witness’ affirmative response as to permission, where the earlier exchange established essentially the same fact. The admission of evidence over objection that is merely cumulative of or restates earlier evidence admitted without objection, and where no motion to strike the body of objectionable evidence is made, is not error. F. C. Preuitt Const. Co., Inc. v. Doty, 536 S.W.2d 908 (Mo.App.1976). See: State v. Mills, 521 S.W.2d 495 (Mo.App.1975).

Defendant’s third point on appeal addresses the sufficiency of the State’s evidence to support the giving of the instruction on operation of a motor vehicle without the owner’s consent. Specifically, defendant contends there was no evidence of defendant’s having actually operated the vehicle in question as there was no evidence placing him behind the driver’s seat while the auto was in motion. The record contains testimony of a police officer who, while responding to a call regarding defendant’s activities in the neighborhood, observed defendant exiting the driver’s seat of an automobile later determined to have been stolen, with the back seat laden with goods taken from the residences of the victims. It was also shown that the engine of the auto in question was running at the time and that its ignition switch had obviously been disturbed by the insertion of a screwdriver.

Defendant’s contention is without merit. In State v. Goodman, 581 S.W.2d 777 (Mo.App.1975), evidence that the defendant had been apprehended while sitting in the driver’s seat of a parked automobile, the ignition of which had been “punched out” and that had been stolen was held to constitute a submissible case on this charge. We discern no reason for distinguishing the instant case on the basis that this defendant was seen in the act of abandoning, as opposed to maintaining, possession of the parked auto.

In determining the propriety of an instruction submitted to the jury, we look to see if the challenged instruction is supported by substantial evidence, including the reasonable inferences to be drawn therefrom. State v. Cole, 377 S.W.2d 306 (Mo.1964). The only reasonable inference to be drawn from the evidence presented at trial was that the defendant had arrived at the scene in the auto in question and was about to utilize it for the purpose of spiriting away the spoils of his burglarious efforts when apprehension of imminent detection by the approaching officer caused him to abandon his malgained lucre. The challenged instruction was fully supported by the evidence presented together with inferences reasonably arising therefrom.

Finally, defendant maintains that the instruction submitting the stealing charge relative to the Berry television was erroneous in two respects. Defendant objects to the use of the word “possession” in reference to Mr. Berry’s interest in the property in that it would allow a finding of guilty of stealing without a prior finding that the property in question was either owned or “lawfully possessed” by another— an element of the offense charged. Defendant also claims that the instruction prejudicially varied from the indictment by substituting the term “possessed” for “owned”, thereby lessening the proof required for a conviction. Defendant contends that the alleged infirmity of the instruction would be cured if the term “possession” were qualified by the use of an adjective such as “rightful” or “lawful”, inasmuch as legal possession in Missouri has long been recognized as the equivalent of the element of actual ownership under the stealing statute. State v. Webb, 400 S.W.2d 84 (Mo.1966). See also: State v. Fleming, 518 S.W.2d 449 (Mo.App.1975).

We do not find it necessary to decide whether the unqualified use of the term “possession” is sufficient to charge the jury as to the element of ownership of stolen property or its equivalent, because, under the circumstances presented here, the jury could not have found Mr. Berry to have been in possession of the television set without also finding that possession to be of a quality which was lawful. In the context of this case, the fact of Berry’s possession was inextricably bound with the fact of ownership by the fiancee and of her permission for his use of the television. The only evidence presented on the issue simultaneously disclosed both actual ownership in the fiancee and lawful, permissive possession in Berry. There was no evidence to any other effect, and the jury could not reasonably have found that Berry had possession at all unless it found that his possession came about lawfully. No prejudice to defendant could therefore have resulted from the omission in the instruction of a term modifying the word “possession”.

Our conclusion in this respect is supported by the rationale underlying the requirement that ownership (or its practical equivalent, lawful possession) of stolen property be proven in prosecutions for stealing. The averment of ownership serves the threefold purpose of: (1) showing title to be in someone other than the accused, in that one cannot be guilty of stealing one’s own property; (2) furnishing notice to a defendant of the particular offense so that he may adequately meet the charge; and (3) to bar a subsequent prosecution for the same offense, State v. Hill, 528 S.W.2d 798 (Mo.App.1975). In other words, the purpose of the ownership averment is to identify with particularity the property in question. An instruction based on possession of property under the circumstances shown here adequately discharges this purpose as to each of the three stated reasons, and to find that the instruction was deficient for want of a term of qualification would be insupportable elevation of form over substance.

Finally, we need only determine whether the possession instruction was such a material variance of the indictment laying ownership in Berry as to be error. What has been said above regarding lawful possession as the equivalent of actual ownership under Missouri’s stealing statute is dis-positive. An allegation of “care and custody” alone, where the correct actual ownership was never alleged at all, has been held to be “in the eyes of the law a sufficient attribute of ownership to support an averment and proof of ownership against one charged with stealing property belonging to another”. State v. Hill, Id. at 801. See also State v. Nichols, 130 S.W.2d 485 (Mo.1939).

The State in the instant case both alleged and proved a “sufficient attribute of ownership” in Berry to support the conviction for stealing. It necessarily follows that it was immaterial whether the instruction was couched in terms of “possession” or “ownership”. No prejudice to defendant could have resulted from the change in terminology-

The judgment is affirmed.

All Judges concur.


source: Caselaw Access Project

author: STEWART, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Ronald B. MAY, Defendant-Appellant.
    No. 39640.
    Missouri Court of Appeals, Eastern District, Division Two.
    Aug. 7, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 17, 1979.

      Richard Fredman, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Jefferson City, George A. Peach, Circuit Atty., Richard G. Callahan, St. Louis, for plaintiff-respondent.
   STEWART, Judge.

A jury convicted defendant of manslaughter in the death of Ernest Whitfield. He was sentenced by the court to ten years imprisonment under The Second Offender Act § 556.280 RSMo 1969.

On this appeal defendant contends that (1) the evidence was insufficient to submit the cause to the jury; (2) the court erred in permitting a State’s witness to testify to threats made to her because the threats were not linked to defendant; (3) the court erred in refusing to permit defendant to call a witness in surrebuttal; and (4) in refusing to give an instruction on self-defense.

The first issue requires an extensive statement of the facts. In determining the sufficiency of the evidence we review the evidence, direct and circumstantial, in the light most favorable to the State including all favorable inferences that can be drawn from that evidence and ignore all evidence and inferences to the contrary. State v. Miceli, 549 S.W.2d 113 (Mo.App.1977).

Ernest Whitfield, and his wife Juanita, lived at 4422 Maffitt, apartment 19 in the City of St. Louis. Their daughter Wanda and her infant daughter lived in apartment 15 which was close to her parents’ apartment. The walls in the apartments were thin. Sounds in Wanda’s apartment could be heard by her parents if they were in the bathroom or the kitchen. As we read the testimony one enters the apartments by the kitchen. The apartments 19 and 15 are on the first floor. The front doors open from the kitchen onto an outside courtyard.

Mr. Whitfield’s son, Michael, who was similar in appearance to his father, lived in an apartment on Newstead Avenue just around the corner from his parents. Michael had permitted a person named J. J. to sell narcotics out of his apartment. Houston Pridgett had been living with Wanda and was making sales of narcotics from her apartment.

About á month before Mr. Whitfield was killed Michael Whitfield was stopped on the street by defendant and his nephew Gary Mayes (sic). Defendant told Michael “ ‘Get them niggers out of your house before I come up there and blow everybody out of there, and you can go tell your sister to get them niggers out of their house.’ ” Three days before the shooting defendant “paid a visit” to Pridgett at Wanda’s apartment and in Wanda’s presence told Pridgett “You can’t sell no drugs around here.” Pridgett told defendant that he would sell drugs wherever he wanted. Wanda told defendant that he wouldn’t have to come to her house to look for Pridgett because Pridgett would not be staying there. Later Wanda asked Pridgett to leave her house and he did.

On December 16, 1976 between 8:30 and 9:00 PM Wanda’s sister, Hortense, and Wanda’s infant daughter were leaving Wanda’s apartment when defendant along with Steve Moore, Gary Mayes, James Scott and a fifth person, whom Wanda said she did not know, approached the apartment. Moore entered the apartment and asked Wanda how she was doing. Moore then started out the door as defendant was about to enter. Moore told defendant “ ‘Ain’t nothing happening, man. Ain’t nothing happening.’ ” Defendant then pushed Hor-tense back into the house and “bogarded” his way into the apartment. He was followed by the unknown male. There is some indication that this person was Jimmy Sharp, one of defendant’s “lieutenants”. All three were armed. Gary Mayes and James Scott stayed outside the door.

Defendant asked Wanda where Pridgett was and where the guns were. When she told him she didn’t know he pushed her in the closet and started kicking her in the abdomen. He was slapping her as he told her she was lying; that she knew where Pridgett was and told her to find the guns. Hortense started screaming during the scene. Defendant took Wanda into the living room and made her take the couch apart to show there was nothing in it. At this time two shots were fired outside the door. The three men who were in the apartment ran out the door and after they got outside about ten more shots were heard. After the shooting stopped Wanda looked out the door and saw her father lying on the ground and the five men running away.

Defendant, Steve Moore and Jimmy Sharp were next seen as they ran into defendant’s pool hall on Newstead Avenue at the alley between Maffitt and St. Louis Avenues. Defendant and Steve Moore had pistols that they put in a drawer under the cash register. Defendant told Sharp to have everyone leave and to close up the pool hall. Defendant, Moore and Sharp then got into a car and drove east on St. Louis Avenue.

Mr. Whitfield, before being found outside had been in his apartment. He was watching television in the living room-bedroom portion of the apartment while his wife was lying in bed. He left the room for the kitchen or bathroom, an area where sounds from the adjoining apartment can be easily heard.

The victim suffered multiple shotgun wounds of the right side of the body with through-and-through wounds of the right arm, a fracture of the right humerus and penetrating wound of the right chest which entered into the medius sternum and then caused a large wound of the anterior wall of the heart. The primary cause of death was a large destructive wound in which the front of the left and the right side of the heart was essentially blown away. It was the opinion of the medical examiner that the latter injury was caused by a shotgun blast.

There was a bullet hole found in the door of the victim’s apartment. It had entered the door from the outside. A cabinet in the kitchen was dented by a projectile. Seven shotgun shells were found at the scene, two were live and five had been fired. A reading of the transcript without the aid of the photographs used at the trial does not give a clear picture of the location of the evidence seen and found during the investigation of the crime.

Defendant argues that the evidence “failed to link [defendant] or any of his co-defendants with a shotgun and failed to establish that [defendant] was acting in concert with anyone who sought to cause the death of deceased.”

It is not necessary to show defendant’s participation in the crime by direct evidence nor is the State required to prove that defendant personally committed the acts constituting all of the essential elements of the crime in those cases where one aids and abets in the commission of a crime. State v. Dodson, 556 S.W.2d 938, 950 (Mo.App.1977). Proof of the commission of a crime may be by way of circumstantial evidence provided the facts and circumstances are consistent with each other and with the hypothesis of defendant’s guilt. They must also be inconsistent with and exclude every reasonable hypothesis of his innocence. The circumstances do not have to be absolutely conclusive of guilt nor do they have to demonstrate the impossibility of innocence. The existence of other possible hypotheses is not sufficient to remove the case from the jury. State v. Miceli, 549 S.W.2d 113 (Mo.App.1977). While flight is a circumstance to be considered against an accused in connection with other evidence, presence and flight alone are insufficient to sustain a conviction. State v. Mason, 506 S.W.2d 458 (Mo.App.1974).

In the case at bar we do not have mere presence of the defendant at the scene. Defendant, accompanied by his nephew Gary, had made threats to Michael Whitfield concerning persons selling drugs from Michael’s apartment and told him to tell Wanda to get Pridgett out of her apartment. Defendant also went to Wanda’s apartment and ordered Pridgett out. On the night of the crime defendant came to Wanda’s apartment to get Pridgett and guns that he thought were in the apartment. The jury could readily find that he was accompanied by the four other persons who were with him. The fact that they were armed indicated that they would shoot anyone who would interfere with them. See State v. Adams, 98 S.W.2d 632, 636 (Mo.1936). Two of the men with defendant including Gary, who was with him when he threatened Michael, remained outside when defendant “Bogarded” his way into the apartment. These men gave all the appearances of protectors or bodyguards of defendant. It was about the time defendant was assaulting Wanda and when Hortense was screaming that the first two shots were fired. The jury could find that Mr. Whitfield heard the sounds in his daughter’s apartment and went to investigate. When the shots were fired defendant went outside. After he was outside ten more shots were fired. After the shooting ceased defendant and the others were seen running from the scene. No other persons were seen in the vicinity of the crime. Defendant was next seen at his pool hall with Moore and Sharp when he and Moore concealed weapons under the cash register and defendant ordered the pool hall closed. The primary cause of Mr. Whitfield’s death was shotgun wounds. There was, however, evidence that other weapons had been used because of the through-and-through wounds and the fracture of the arm; a total of about twelve shots were fired and only five spent shotgun shells were found. There is sufficient evidence of a circumstantial nature to warrant submission of the cause to the jury as to defendant’s connection with the other persons present. In fact, all of the facts indicate that defendant was in command of the group. The fact that the shotgun was not found and that there were no eye-witnesses to the discharge of the shotgun is of no consequence when we consider that there were no other persons in the immediate vicinity of the crime. State v. Dodson, supra.

While presence and flight alone may not be sufficient, the conduct of a defendant before and after an offense are circumstances from which defendant’s participátion may be inferred. State v. Nickelson, 546 S.W.2d 539 (Mo.App.1977).

To support his contention that the court should have directed a verdict of acquittal, the defendant also argues that “the physical evidence was inconsistent with the hypothesis of [defendant’s] guilt.” As pointed out above we do not have the advantage of the exhibits particularly the photographs and the diagram from which one of the witnesses testified. The trial court had the exhibits and the black board demonstration before it as explanatory of the oral testimony which is not clear absent the exhibits. We must assume that the trial court did not err in this regard. First Bank & Trust Company v. Montgomery, 570 S.W.2d 346 (Mo.App.1978).

Defendant next contends that the court erred in permitting witness Wanda Whitfield to testify on redirect examination concerning threats communicated to her because the threats were not linked to the defendant.

Wanda Whitfield was the State’s principal witness. On cross-examination she was severely impeached by the use of a tape recorded statement that she had given to defendant’s attorney about a month before the trial. On redirect examination she was asked why she gave the statement to defendant’s attorney. She testified that there had been numerous threats and that her mother’s car had been firebombed. Cecil, a friend of defendant and also a friend of Wanda, told her “you watch yourself because I’ve been hearing things and you watch yourself closely because they got indicted.” He also asked her if she was “going to court on” defendant. She was threatened on several occasions. In order to protect herself she told the persons who conveyed the threats that she did not testify before the grand jury.

. Some time later Cecil called her saying he wanted her to talk to defendant’s lawyer and that Barbara wanted to talk to her. Barbara was described as defendant’s “wife, girl friend.” Cecil picked her up and they met Barbara outside the lawyer’s office and Barbara told her what to say. She then gave the statement to the lawyer.

Wanda further testified that she did not know the origin of the threats. It is conceded that defendant was confined during the time she received the threats. She stated that the reason she gave the statement to the defendant’s lawyer was because of the threats.

In order to avoid the effect of cross-examination a witness may be asked his reasons for acts or conduct on his part, or for inconsistent statements that have been brought out on cross-examination. State v. Griffin, 497 S.W.2d 133 (Mo.1973). See also State v. Vickers, 209 Mo. 12, 106 S.W. 999 (1907). The scope and extent of the explanation for the conduct or inconsistent statements is a matter within the discretion of the trial court and we may reverse only upon a finding of abuse of that discretion. State v. Charles, 525 S.W.2d 360, 363 (Mo.App.1975).

In the case at bar the defendant developed the evidence of the inconsistent statements made by the witness. The witness had a right to explain on redirect examination that the reason for her inconsistent statements was fear generated by threats.

Defendant’s reliance on State v. Hicks, 535 S.W.2d 308 (Mo.App.1976) is misplaced. In Hicks the State in its opening statement advised the jury that it would show that one of its witnesses had been threatened. The witness testified on direct examination that she had received threatening telephone calls. The court there held that when evidence of threats made to induce a witness to destroy, suppress or fabricate evidence are introduced in the State’s case in chief to establish defendant’s guilt and show consciousness of guilt, it must be shown that the threats were made by the defendant or by a third person at defendant’s urging or with defendant’s knowledge and consent. State v. Hicks at page 311.

The fact that defendant could not be linked to the threats, did not eradicate fear as the motive for the witness’ inconsistent statements. The purpose of the testimony was not to show a consciousness of guilt but to explain the matters brought out on cross-examination.

We find no abuse of discretion on the part of the trial court in admitting the evidence of threats made to Wanda Whitfield.

Defendant next asserts that the trial court erred in refusing to permit him to call the public defender as a surrebuttal witness. The situation giving rise to this contention had its origin in the testimony of an attorney for Gary Mayes, a co-defendant. The attorney testified that he met Wanda Whitfield in one of the court rooms on June 1 about three weeks before the present case was tried. Gary Mayes’ mother introduced Wanda to him. Wanda told him that she said that she had told the police that “I had seén Gary there that night but I didn’t see him there that night.” It was his recollection that Wanda’s mother was with her at the time. On rebuttal Mrs. Whitfield testified that she was not with her daughter in the presence of the lawyer on June 1. In response to further questions she testified that she went to the Circuit Attorney’s office with Wanda on the Saturday before the trial and that the Assistant Circuit Attorney did not put any pressure on Wanda to testify.

Defendant then made an offer to prove by way of testimony of the Public Defender that during the second day of the trial the Public Defender conferred with Wanda Whitfield and that she expressed a desire not to testify; that the attorney for the State informed her that if she did not testify he would have to dismiss the charges. She then stated that she would testify.

The control of rebuttal or surrebut-tal testimony is a matter within the sound discretion of the trial court and his rulings will not be disturbed except for abuse of that discretion. State v. Huff, 454 S.W.2d 920 (Mo.1970).

Here the evidence offered would not rebut the testimony as to what transpired on the Saturday before the trial and sought to inject a collateral issue of no relevancy to the cause. Defendant suffered no prejudice, there was no abuse of discretion.

For his final point defendant charges that the trial court erred in not giving his requested instruction on self-defense. Defendant leads us to no evidence of record and our reading of the transcript reveals no evidence that would warrant the giving of an instruction on self-defense. This contention has no merit. State v. Baker, 277 S.W.2d 627, 629 (Mo.1955).

Finding no error the judgment of the trial court is affirmed.

STEPHAN, P. J., and KELLY, J., concur.

      . Where in relation to her parents is not clear and we are handicapped because none of the exhibits including photographs have been filed with the court. Wanda testified:
      “Q. Right next door? A. Next door. Q. Two doors down, one door — there’s one place in between. A. Yes, one door down.”

      . The witness explained the term as “acting like a tough guy.”

      . There is absolutely no indication that counsel was aware of the matters leading to the giving of the statement.


author: SMITH, Judge.

text:
    STATE of Missouri, Respondent, v. Willie McCURRY, Jr.
    No. 39999.
    Missouri Court of Appeals, Eastern District, Division One.
    Aug. 14, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 17, 1979.

      Samuel Raban, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., David 0. Fischer, St. Louis, for respondent.
   SMITH, Judge.

Defendant appeals from his conviction by a jury of two counts of assault with intent to kill with malice aforethought and one count of possession of a controlled substance — heroin. The court, acting pursuant to the second offender act, sentenced defendant to two thirty year consecutive terms on the assaults and a concurrent ten year term on the heroin charge. We affirm.

At 10:30 p. m. on April 9, 1977, several policemen from the Tactical Anti-Crime Team (TACT) of the St. Louis Police Department went to a home on North Market in St. Louis. Their intention was to make a purchase of narcotics at that location and then to arrest the seller. Two officers, Jacobsmeyer and Allen, went up to the door of the premises and knocked. The remaining officers secreted themselves at the rear of the house and near the front door. Defendant opened the door and Allen said they had been sent by Victor Murphy and wanted to buy “two caps” or “two buttons” —referring to heroin. Defendant responded that they should wait while he got what they wanted. Defendant then left the doorway closing the door until it was slightly ajar. Jacobsmeyer and Allen signalled to the nearby police officers who moved closer to the doorway but still attempted to remain concealed. All of the police officers were dressed in casual clothing although all of them except Jacobsmeyer and Allen wore armbands and caps identifying them as members of TACT. Approximately thirty seconds after leaving the doorway, defendant returned and began firing at Ja-cobsmeyer and Allen. Both were hit. The other police then began firing into the house and were shortly joined by a large number of uniformed police responding to a radio call for assistance. Many of these officers also began firing into the house. After five or ten minutes the police ceased firing upon orders from one of their number and by loudspeaker announcement the occupants of the house were advised that the house was surrounded by police and the occupants should surrender. Defendant and his father then left the house, unarmed, and were arrested. Upon a search of the house heroin was discovered on a dresser top in a bedroom. A pistol from which the bullet which hit Jacobsmeyer was discharged was found and a shotgun was also found.

Defendant contended that he believed the men at the door were burglars trying to force their way into his house, that he removed a pistol from his back pocket and fired at them and that he would not have done so had he realized they were police officers.

On appeal defendant raises three points. His first is that certain evidence seized from his home was inadmissible because obtained in contravention of his rights under the Fourth and Fourteenth Amendments. Following the exit of defendant and his father from the house several police officers entered the premises to search for additional persons therein. One of the officers who entered was Detective Brand who had been designated by the officer in charge of the TACT operation, Sgt. Hammer, as the “seizure officer.” Defendant contends that Brand did not enter the house until an hour after the arrest of defendant and after the house had been searched for additional persons with no success. We do not find that the record supports such a contention. Brand was instructed to enter the house by Hammer and Hammer left the scene to go to the hospital to see Jacob-smeyer and Allen immediately after defendant exited the house. Although the record does not indicate precisely when Brand entered the house, it is reasonable to conclude that it was shortly after he was instructed to do so and while other officers were also inside looking for other occupants. The search for occupants continued for approximately an hour after original entry, in part because of difficulty in obtaining access to a portion of the house which was locked. In going through the house Brand found heroin, a strainer and spoon with heroin residue on them on top of a dresser in a bedroom. Other officers searching for occupants found the pistol and shotgun. All of these items were in plain view. Additionally, Brand found additional contraband in dresser drawers and hidden in some tires on a porch. Those items were not in plain view. After hearing on defendant’s motion to suppress, the trial court sustained the motion as to those items found in drawers and the tires and denied the motion as to those items in plain view.

The thrust of defendant’s point is that Brand’s entry into the house was not under emergency circumstances and that the search conducted was not reasonable in time, spatial scope or intensity.

The general rule is that warrant-less searches are unreasonable per se unless the action falls within certain delineated exceptions. State v. Epperson, 571 S.W.2d 260 (Mo. banc 1978). The burden of proof is upon the state to establish that an exception exists. Objective facts within the knowledge of police and reasonable conclusions objectively drawn therefrom are determinative of the reasonableness of the particular search. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it and the place in which it is conducted.” Bell v. Wolfish, - U.S. -, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).

Defendant concedes, and we also find, that the entry of the police into the house following defendant’s exit therefrom was justified under the emergency circumstances then existing. At that time the police did not know how many persons had been shooting from the house, whether additional persons were still in the house and posed a danger, and whether someone might be injured inside the house. Where the basic intrusion is justified because of an emergency the seizure of items in plain view is permissible during the continuation of the emergency and so long as the search and seizure is reasonable in time, spatial scope and intensity. State v. Epperson, 571 S.W.2d 260 (Mo. banc 1978); Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978); Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978).

“What the ‘plain view’ cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused.” Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971), 1. c. 466.

Two weapons which were in plain view and seized by police officers who were searching for other occupants of the house clearly met all the requirements of admissibility. Defendant contends that the heroin and related paraphernalia found on the dresser top by Officer Brand does not meet the admissibility criteria because Brand’s function was not to search for suspects but for evidence or contraband. As previously stated we do not find record support for defendant’s contention that Brand entered the house after the emergency had terminated. That Brand stated he believed there were no other occupants present in the house when he entered does not mean there were none. The record supports the conclusion that when Brand entered other officers were still searching for additional occupants. The nature of the search for suspects made all portions of the house capable of containing a person a legitimate area of search. The officers conducting the search were therefore entitled to seize any evidence in plain view within an area of the house capable of concealing a person.

The question then presented is whether the seizure of items in plain view must be made by the officers coping with the emergency itself or may it be made by an officer whose function it is to seize evidence. The cases which have dealt with “plain view” searches and seizures have referred to the justification for the original intrusion by the police and have not dealt with the specific function of the seizing officer although seizures by officers not engaged in actually coping with the emergency have been upheld. See Michigan v. Tyler, supra; State v. Epperson, supra. Nor is it reasonable to limit seizure to those officers coping with the emergency when the emergency is one imposing danger or a need for quick action on those officers. Here the officers who were searching the house for additional occupants could clearly have seized the heroin in plain view on the dresser. But seizure of evidence requires, as a practical matter, considerable care and time. The requirements of care to avoid contamination and destruction of fingerprints and the time necessary to properly identify and mark the evidence to preserve its admissibility in court cannot practically be accomplished by officers dealing directly with an emergency involving a wounded person or a situation requiring vigilance to avoid personal danger. These very practical considerations warrant the utilization of an officer without responsibility for coping with the emergency itself to seize in a proper fashion evidence and contraband unexpectedly discovered in plain view during the legitimate intrusion occasioned by the emergency situation. Such legitimate law enforcement benefits may properly be considered by courts when balanced against minor perils to Fourth Amendment protections. Coolidge, supra, 403 U.S. 467, 91 S.Ct. 2022.

We do not interpret the term “inadvertent” as used in Coolidge v. New Hampshire, supra, to encompass total surprise that evidence or contraband is present, for it is naive in the extreme to believe that police would not expect to find such items during an emergency search of the scene of a crime. Rather the term “inadvertent” is contrasted in Coolidge to the circumstance where the discovery of the particular evidence is anticipated, where the police know in advance the location of the evidence and intend to seize it. 403 U.S. 1. c. 470, 91 S.Ct. 2022. That is not the situation here. While the police may have suspected that contraband was in the house they could not anticipate it or know of its location. The discovery was inadvertent. The intrusion into the house and the presence of the police in the room where the heroin was located was justified by the emergency. The heroin and paraphernalia were discovered in plain view during that intrusion and were immediately recognized by Officer Brand for what they were.

Nor do we find that the actions of Brand in searching for evidence not in plain view affects the admissibility of the challenged evidence. The trial court properly suppressed evidence seized by Brand during that part of his search which exceeded the permissible limits under the “plain view” doctrine. The prophylactic purposes found to justify the rule of suppression of otherwise credible evidence are fully satisfied upon suppression of the evidence improperly obtained. That prophylaxis does not require suppression of evidence lawfully obtained. We find no error in the admission of the evidence.

As a sub-issue to this point, defendant challenges the admission of the shotgun into evidence on relevancy grounds. The gun was admissible to show motive, malice and knowledge as to both the assault and heroin charges. See, State v. Starks, 459 S.W.2d 249 (Mo.1970) [1-5]; State v. Richardson, 515 S.W.2d 571 (Mo.1974).

Defendant next contends that the evidence was insufficient to establish possession of the heroin, because the evidence established only joint control. Actual or constructive possession of the controlled substánce together with the knowledge of the fact of possession is an essential element which the state must prove. State v. Burns, 457 S.W.2d 721 (Mo.1970). The possession need not be exclusive and may be established circumstantially. State v. Young, 427 S.W.2d 510 (Mo.1968). Where joint control of a residence in which such substance is found is established there must be other evidence to support the inference of defendant’s knowledge of the presence of the substance. State v. West, 559 S.W.2d 282 (Mo.App.1977). The record does not make clear whether the bedroom in which the heroin was found was defendant’s. But, when the police officers sought to purchase heroin from defendant he replied: “Just a minute, I’ll go get them.” He further was identified as the person who fired at Jacobsmeyer and Allen. Both his statement and his action inferring guilty knowledge were sufficient additional evidence to support a finding of knowing possession. State v. Wiley, 522 S.W.2d 281 (Mo. banc 1975) [26]; State v. Stewart, 542 S.W.2d 533 (Mo.App.1976) [16-19]; State v. Davis, 515 S.W.2d 773 (Mo.App.1974) [9].

Defendant's final contention is that the court erred in failing to instruct on the lesser included offenses of assault without malice and common assault. Instructions on lesser included offenses are required only if supported by the evidence. When a deadly weapon is used in making an assault the law presumes malice and that the natural consequences of the act are intended in the absence of countervailing evidence. State v. Webb, 518 S.W.2d 317 (Mo.App.1975) [5-6]. Here the evidence establishes that defendant fired two shots at and hit two police officers. His defense was that he was seeking to protect himself from men he believed to be burglars. He received a self-defense instruction. There is no evidence to support an instruction on a lesser degree of assault. The defendant was either guilty of assault with malice aforethought or he was not guilty on the basis of self-defense. State v. Webb, supra, [7].

Judgment affirmed.

WEIER, G. J., and SNYDER, P. J., concur.


author: CRIST, Judge.

text:
    STATE of Missouri, Respondent, v. Leighton McMILLIAN, Appellant.
    No. 40795.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 21, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 17, 1979.
    Robert C. Babione, Public Defender, Linda Murphy, Asst. Public Defender, St. Louis, for appellant.

      George A. Peach, Circuit Atty., James K. Steitz, St. Louis, John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   CRIST, Judge.

Burglary second degree of commercial building.

The defendant was convicted by a jury of second degree burglary of a commercial building. The court assessed punishment at ten years under the Second Offender Act. Defendant appeals. We affirm.

Defendant first complains the court below erred by sustaining the state’s motion in limine prohibiting defendant from introducing evidence as to his intoxication at the time he was found crouched behind a pillar in the building he allegedly burglarized. Defendant admitted that evidence of intoxication was not admissible to negate specific criminal intent. That is not in issue. State v. Shipman, 354 Mo. 265, 189 S.W.2d 273, 274 (1945). At the pre-trial conference defendant objected to the state’s motion on the sole ground that evidence of intoxication was admissible to show defendant was guilty of trespass and .not burglary second degree.

We glean from defendant’s brief that evidence of his intoxication might have been argued to support a theory that he entered the building not to commit a felony but “to urinate, to lie down, to use a telephone,” i. e. conduct more likely engaged in by an intoxicated person. Had he stated so in his offer of proof, perhaps this would be a logical exception from the rule stated in Shipman, supra. But he did not. Defendant’s offer of proof was too vague and uncertain. Offers of proof must be specific and detailed enough to show admissibility State v. Umfrees, 433 S.W.2d 284, 286[1-2] (Mo.1968); Kinzel v. West Park Investment Corporation, 330 S.W.2d 792, 795-96[1-4] (Mo.1959).

Defendant next complains the court below erred in sentencing him under the Second Offender Act. He contends the state failed to prove his prior Illinois offense would have been a felony if committed in Missouri and thus he should not have been sentenced as a second offender.

The evidence showed defendant was convicted of larceny of an automobile and sentenced to one to four years in the Illinois Department of Corrections. The trial court found that the offense in the State of Illinois would be a felony offense in the State of Missouri. There is no question but that the finding of the trial court was correct. See, § 560.161, Subsection 2(2), RSMo Supp. 1975.

We hold that upon the introduction of the Illinois conviction, the trial court was then authorized to make the finding that the offense in Illinois would have been a felony offense in Missouri.

Judgment affirmed.

REINHARD, P. J., and GUNN, J., concur.


author: GREENE, Judge.

text:
    Willie J. WILSON, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 11059.
    Missouri Court of Appeals, Southern District, Division Three.
    Sept. 13, 1979.

      William C. Vandivort, Sikeston, for mov-ant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   GREENE, Judge.

On April 6,1975, after trial by jury in the Circuit Court of Scott County, movant was convicted of murder in the second degree and, in conformance with the jury verdict, was sentenced to a term of 10 years in the Missouri Department of Corrections. Mov-ant did not appeal that judgment and sentence. On November 17,1976, movant filed a motion in the trial court to vacate the judgment and sentence, pursuant to Rule 27.26, V.A.M.R. As grounds for the motion, movant alleged that he had been deprived of his statutory and constitutional rights to appeal his conviction because his counsel misled him and promised, that if no appeal was taken, counsel would obtain a parole for movant at the end of one year. The prosecuting attorney filed a motion to dismiss the motion to vacate, which was sustained by the trial court. Movant appealed. This court, on February 1, 1978, issued a mandate reversing the order of the trial court dismissing the motion to vacate and remanded the case for a hearing on the merits. See Wilson v. State, 561 S.W.2d 749, 751 (Mo.App.1978). On May 12, 1978, an evidentiary hearing was held in the trial court on the issues presented in the motion to vacate. On May 15, 1978, the trial court entered a judgment which overruled the motion to vacate. Movant appeals from that judgment.'

The sole point relied on in this appeal is that movant’s former counsel did not adequately explain that appellant could serve his sentence and pursue his appeal at the same time. In the argument portion of his brief, movant expounds upon that point and also alleges that movant’s former counsel so unrealistically presented movant’s chances of parole that his advice amounted to an assurance of parole, and that movant, relying on such assurance, waived his right to appeal. The parole was not forthcoming within the one year period, although mov-ant was paroled on August 2, 1979.

In a post-conviction proceeding, movant has the burden of establishing grounds for relief by a preponderance of the evidence. Beach v. State, 488 S.W.2d 652, 656 (Mo.1972). On review, we are limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous. A finding is clearly erroneous only where, on a review of the entire record, the appellate court has a definite and firm conviction that a mistake has been committed. Crosswhite v. State, 426 S.W.2d 67, 70-71 (Mo.1968). In such a review, we are required to give due regard to the trial judge’s opportunity to hear the witnesses and to defer to his determination of credibility, unless it clearly and convincingly appears that he has abused his discretion. Walster v. State, 438 S.W.2d 1, 3 (Mo.1969).

Applying these principles and after examining the entire record, we are convinced that the trial court did not err in overruling the motion to vacate. The trial court, in its judgment, made the following findings:

“The movant testified that his attorney, right after the sentencing, discussed the appeal poibilities [sic] with him; that his attorney told him that he, the attorney, did not find any error that would justify an appeal; that his attorney told him that he would get him paroled in one year; that he would have him out in one year; that an appeal would take a long time and that he would be released in a year; and that the movant relied on what his attorney told him. He had at least one other discussion with the the [sic] attorney.
James Robison, his attorney at the trial, testified that following the sentencing of the movant he talked to him about an appeal and also had other conversations with him; that when he talked to him Alex Jackson was present; that he had the impression that Alex Jackson was the grandfather of the movant (the movant testified that Alex was not his granfather [sic]); that he told the movant that he did not think that there was any error on which to appeal; that he discussed all the alternatives with the movant with reference to an appeal; that he told the mov-ant that he was a good risk for parole; that he never told him that he could get a parole for him; that after movant commenced his sentence he had movant’s employer write to the parole board; that he based his recommendation that movant might be paroled after one year on the publicity that the institutions were overcrowded and that made probation more probable; the time factor was discussed with reference to an appeal; that he thought an appeal was a waste of time; that he did not tell movant that he could get him a parole after a year, but that he might be able to appear before the parole board in about one year; that letters from the movant indicated he wanted bond time; and then much later he first mentioned an appeal; that movant wrote him that he appeared before the parole board on July 7, 1976 (the defendant was setnenced [sic] on June 12, 1975); that he had known the movant since 1964 and had represented him several times; and that Alex Jackson who was present at the time of the conversation after sentencing was a friend of the movant and advised him to follow the recommendation of his attorney.
James Robison is a highly respected member of the bar. He has handled may [sic] criminal cases including a large number of appeals. The Court finds that he explained the matter of appeal to the movant who had the opportunity for a free choice from the time of the sentencing. The movant was not misled, his rights were not infringed, he was not pressured. He was not deprived of his right of appeal because of any misrepresentation, neglect or inattention of counsel. His rights were explained to him. He was at liberty to make his free choice.
The movant had effective assistance of counsel. The attorney was not derelict in his duty to movant.
The movant was not deprived of his constitutional rights.”

The findings of the trial court are supported by the transcript of testimony at the evidentiary hearing and are not clearly erroneous. The order and judgment denying movant’s motion to vacate sentence is affirmed.

All concur.


author: FLANIGAN, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Allen LOCKE, Defendant-Appellant.
    No. 10961.
    Missouri Court of Appeals, Southern District, Division One.
    Sept. 13, 1979.

      John B. Newberry, Springfield, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Kathryn Marie Krause, James R. Cumbee, Asst. At-tys. Gen., Jefferson City, for plaintiff-respondent.
   FLANIGAN, Chief Judge.

A jury found the defendant Allen Locke guilty of the murder of Ronald Max Ray and fixed the punishment at life imprisonment. Judgment and sentence were entered upon the verdict. The sentence recited that defendant “be committed to the custody of the Division of Corrections during his natural life, and that said defendant not be eligible for probation or parole until he has served a minimum of fifty years of his sentence.” The crime occurred on July 13, 1976. The verdict of the jury was returned on July 7, 1977. Defendant was sentenced on August 17, 1977. Defendant appeals.

Defendant’s first contention is that Instruction 6, one of the state’s verdict-directing instructions, was erroneous. The challenged instruction, upon which the jury returned its verdict of guilty, is set out below.

Defendant’s first criticism of Instruction 6 is that it refers to the offense of murder in the first degree. That is erroneous, argues defendant, for the reason that “the statute § 569.010, under which defendant was charged, had been repealed” and for the further reason that there was no crime called murder in the first degree on July 13, 1976, the date of the instant offense.

In this opinion the following statutory references are used:

§ 559.010 — § 559.010 (RSMo Supp.1969). This statute was repealed in 1975, Laws of Missouri, 1975, p. 408.
§ 559.005 — § 559.005 (RSMo Supp.1975). This statute was repealed in 1977, Laws of Missouri, 1977, p. 718, H.B. 90 § A, effective May 26, 1977.
§ 559.009 — § 559.009 (RSMo Supp.1975). This statute was repealed in 1977, Laws of Missouri, 1977, p. 718, H.B. 90 § A, effective May 26, 1977.
§ 559.011 — § 559.011 (RSMo Supp.1975). This statute was repealed in 1977, Laws of Missouri, 1977, p. 718, H.B. 90 § A, effective May 26, 1977.

Defendant is in error in claiming that the information charged him with a violation of § 559.010. That statute, it is true, was repealed in 1975. However, the statute under which defendant was charged and convicted was § 559.005. The portion of the sentence postponing eligibility for probation or parole was inserted pursuant to § 559.-011.

Prior to the trial defendant filed a motion to dismiss the information. The motion was based on defendant’s contention that § 559.005 and § 559.009 were unconstitutional. The trial court overruled the motion and defendant instituted a prohibition proceeding in the Supreme Court of Missouri. The supreme court ruled that “prosecution may be had under § 559.005 with punishment as specified in § 559.011, for the reasons delineated in State of Missouri v. Duren, Mo., 547 S.W.2d 476.” State ex rel. Locke v. Burkart, 548 S.W.2d 550 (Mo.banc 1977).

In Duren, at p. 480, the court held that § 559.005 and § 559.009 “fail[ed] to provide a constitutionally acceptable procedure in Missouri for imposition of the death penalty.” The court also held, at p. 481, however, that § 559.011 “is a viable statute.” Section 559.011 is set out below.

In Duren the court, at p. 481, said: “. . . [T]he use of the term ‘capital’ murder in both the title and body of § 559.005 (and in the other sections) is a misnomer and perhaps grammatically now incorrect. However, there is no law of which we are aware preventing such a designation for the crime therein defined.”

The opinion in Duren was issued prior to the instant trial. Duren caused § 559.011 to come into play. Section 559.011, in effect, relabels the offense proscribed by § 559.005. In § 559.005 the offense was termed “capital murder.” Section 559.011 provides that the offense “shall be deemed to be murder in the first degree.” The trial court, in using the latter terminology in Instruction 6, was doubtless prompted to do so by the language of § 559.011.

The instant offense was committed on July 13, 1976. The following language appears in MAI-CR 2d, Vol. I, p. 15—4:

“[T]he following rules are adopted for all homicides tried after the effective date [April 12, 1978] of the 15.00 Series:
“b. For homicides committed on or after September 28,1975 and before May 26,1977 the substantive law will be the 1975 homicide law (now repealed) and certain other statutes still in force, such as those on second degree murder, manslaughter, etc. The 1975 homicide statutes were then known as RSMo 1969, Sections 559.005— 559.013. In the future the state’s verdict directing instructions for the trial of homicides committed while those statutes were in effect will follow the MAI-CR homicide forms, e. g. MAI-CR 6.02 on Capital Murder, effective September 28,1975, but eliminating the death penalty.” (Emphasis added.)

The foregoing quotation from MAI-CR 2d was promulgated pursuant to an order of the Supreme Court of Missouri dated April 12, 1978, which was after the trial of the instant case.

It is true that MAI 6.02 on Capital Murder, effective September 28, 1975, mentioned in the foregoing quotation from MAI-CR 2d, denominates the offense “capital murder” rather than “murder in the first degree.”

The trial court cannot be faulted for not anticipating the language in MAI-CR 2d quoted above with reference to the use of MAI 6.02. Instruction 6 properly used the designation of the offense contained in § 559.011 and thereby avoided the use of the misnomer mentioned in Duren.

Section 559.005 and § 559.011, both held to be viable in Duren, were repealed in 1977, as previously stated, and the effective date of the repeal was May 26, 1977, which was prior to defendant’s trial. The repeal of § 559.005 and § 559.011, however, did not preclude the prosecution and punishment of defendant under those statutes for his commission of the instant offense. § 1.160 RSMo 1969 V.A.M.S.; State v. Errington, 355 S.W.2d 952, 958 (Mo.banc 1962); Ex parte Wilson,, 330 Mo. 230, 48 S.W.2d 919 (banc 1932). See also State v. Dickhout, 324 Mo. 1194, 26 S.W.2d 937, 938[3] (1929).

Defendant’s first criticism of Instruction 6 has no merit.

Defendant’s second criticism of Instruction 6 is that it “failed to include the complete range of punishment by leaving out the fact that if the jury found the defendant guilty under Instruction No. 6 defendant could not be paroled for fifty years.” The same contention was made in State v. Hanson, 587 S.W.2d 895 (Mo.App. 1979), where the defendant criticized In- • struction 5 for the same omission. For the reasons stated in Hanson, defendant’s second criticism of Instruction 6 has no merit.

Instruction 6 is not erroneous for any of the reasons assigned by defendant. Defendant’s first contention has no merit.

Defendant’s second contention is that the trial court erred “in sentencing defendant to life imprisonment without parole for fifty years since no such punishment existed at the time defendant is alleged to have committed murder and the application of the statute after the alleged crime amounts to an ex post facto law.”

The authorities cited in the discussion of defendant’s first criticism of Instruction 6 are applicable to defendant’s second contention and demonstrate its lack of merit. State v. Hanson, supra, involved an offense which was committed on July 5, 1976. On that date, and on the date of the instant offense, § 559.005 and § 559.011 were, as held in Duren, “viable.” This court, in Hanson, rejected defendant’s assertion “that the sentencing of Hanson under the provisions of § 559.011, constituted the application of an ex post facto law in violation of Article I, Sections 10 and 13 of the Missouri Constitution and Article I, Section 10 of the United States Constitution.”

It is true that Hanson’s trial took place before the repeal of § 559.005 and § 559.011 and the instant trial took place after the repeal. The forepart of this opinion cites authorities supporting the proposition that the repeal of § 559.005 and § 559.011 did not preclude the prosecution and punishment of defendant under those two statutes for his commission of the instant offense.

Defendant’s second contention has no merit.

Defendant’s third contention is that prior to and during his trial, when he was represented by another attorney, he was denied his right to effective assistance of counsel. Defendant claims that his trial counsel was derelict in the following respects: (a) failing to object to certain portions, seven in number, of the state’s evidence; (b) failing to call certain persons as defense witnesses.

The direct appeal from a conviction is “ordinarily” not the proper vehicle for a claim of ineffective assistance of counsel. Where the claim is raised on direct appeal, the court will refrain from ruling the issue where the record does not sufficiently develop the facts essential for a meaningful review. A claim of this type may be raised as error on appeal only where it is based on isolated occurrences and the record as to each of them is fully developed. The usual method for exploring the validity of a claim of ineffective assistance of counsel is the one afforded by Rule 27.-26.

Defendant’s third contention was not presented to the trial court in his motion for new trial. Defendant’s brief in this court fails to cite any authority holding that any of the seven portions of the state’s evidence, to which trial counsel failed to object, was in fact subject to proper objection. The instant record is incomplete as to what the testimony of the uncalled defense witnesses would have been and as to whether those witnesses were in fact available to be called.

This court refrains from ruling defendant’s third contention for the reason that the record does not sufficiently develop the facts essential for a meaningful review. State v. Bibbs, 461 S.W.2d 755, 760-61[9] (Mo.1970).

The judgment is affirmed.

All concur except PREWITT, J., not participating because not a member of the court when case was submitted.

      . “INSTRUCTION NO. 6
      If you find and believe from the evidence beyond a reasonable doubt:
      First, that on or about the 13th day of July, 1976, in the County of Greene, State of Missouri, the defendant or others caused the death of Ronald Max Ray by shooting him, and
      Second, that the defendant or others intended to take the life of Ronald Max Ray, and
      Third, that the defendant or others knew that they were practically certain to cause the death of Ronald Max Ray, and
      Fourth, that the defendant or others considered taking the life of Ronald Max Ray and reflected upon this matter cooly and fully before doing so, and
      Fifth, that the defendant acted either alone or knowingly and with common purpose together with others in the conduct referred to in the above paragraphs,
      then you will find the defendant guilty of murder in the first degree.
      However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, then you must find the defendant not guilty of that offense.
      If you do find the defendant guilty of murder in the first degree, you will fix his punishment at life imprisonment by the Division of Corrections.”

      . “559.011. Alternative punishment if death penalty declared unconstitutional. — If the category of capital murder or the penalty prescribed herein is declared to be unconstitutional by the Missouri supreme court or the United States Supreme Court, all killings which would be capital murder under any of the circumstances specified in section 559.005 shall be deemed to be murder in the first degree and the offender shall be punished accordingly, except that he shall not be eligible for probation or parole until he has served a minimum of fifty years of his sentence.”

      . For current murder statutes, enacted in lieu of § 559.005 and § 559.011 (RSMo Supp.1975), see § 565.001 et seq. (RSMo Supp.1977).

      . “1.160. Effect of repeal of penal statute. —No offense committed and no fine, penalty or forfeiture incurred, or prosecution commenced or pending previous to or at the time when any statutory provision is repealed or amended, shall be affected by the repeal or amendment, but the trial and punishment of all such offenses, and the recovery of the fines, penalties or forfeitures shall be had, in all respects, as if the provision had not been repealed or amended, except (1) that all such proceedings shall be conducted according to existing laws; and (2) that if the penalty or punishment for any offense is reduced or lessened by any alteration of the law creating the offense, the penalty or punishment shall be assessed according to the amendatory law.”
      Defendant makes no claim that either of the two exceptions contained in § 1.160 is applicable here.

      . State v. Johnson, 460 S.W.2d 731, 732 (Mo. 1970); State v. Robinson, 551 S.W.2d 309, 312[3] (Mo.App.1977); State v. Lindley, 545 S.W.2d 669, 671 [3] (Mo.App.1976); State v. Hedrick, 499 S.W.2d 583, 585 (Mo.App.1973).

      . State v. Cluck, 451 S.W.2d 103, 107[8] (Mo.1970); State v. Phillips, 460 S.W.2d 567, 569[3] (Mo.1970); State v. Greathouse, 519 S.W.2d 299, 300[1] (Mo.App.1975).

      . State v. Phillips, 460 S.W.2d 567, 569[3] (Mo. 1970); State v. Evans, 559 S.W.2d 641, 642[1] (Mo.App.1977); State v. Lindley, 545 S.W.2d 669, 671 [4] (Mo.App.1976); State v. Hedrick, 499 S.W.2d 583, 586 (Mo.App.1973).

      . State v. Martin, 451 S.W.2d 96, 99 (Mo.1970); State v. Cluck, 451 S.W.2d 103, 107 (Mo.1970); State v. Evans, 559 S.W.2d 641, 642 (Mo.App.1977); State v. Robinson, 551 S.W.2d 309, 312 (Mo.App.1977); State v. Lindley, 545 S.W.2d 669, 671 (Mo.App.1976).


text:
    STATE of Missouri, Plaintiff-Respondent, v. Thomas G. CHARITY, Defendant-Appellant.
    No. 10823.
    Missouri Court of Appeals, Southern District, Division One.
    Sept. 13, 1979.

      Michael Baker, Springfield, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Steven D. Steinhilber, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   FLANIGAN, Chief Judge.

This is an unusual case. In order to convict the defendant of the offense with which he was charged it was incumbent upon the state to prove that another offense — stealing—did not occur.

A jury found defendant guilty of “obtaining money by means of a ‘confidence game,’ ” § 561.450 RSMo 1969, and fixed punishment at confinement in the county jail for 90 days and a fine of $1,000. Defendant appeals from the judgment and sentence entered on the verdict.

Defendant makes the valid contention that the evidence was insufficient to support the verdict and that the trial court erred in denying his motion for judgment of acquittal.

Defendant was charged with obtaining $9,800 from his insurer, Allstate Insurance Company, by means of a false and fraudulent representation to the effect that defendant’s 23-foot boat, boat trailer and boating accessories, all insured with Allstate, had been taken without his consent in a theft. According to the representation, the theft took place on August 9, 1974, at defendant’s rural home.

In determining the validity of defendant’s contention this court must view the evidence in the light most favorable to the state, accept all substantial evidence and all legitimate inferences fairly deducible therefrom tending to support the verdict and reject contrary and contradictory evidence. State v. Petrechko, 486 S.W.2d 217 (Mo.1972). All evidence unfavorable to the state must be disregarded and the sub-missibility of the case will be determined upon the basis of all of the evidence, including those portions of defendant’s evidence which favor the state. State v. Wood, 553 S.W.2d 333, 334 (Mo.App.1977).

Shirley Ann Thompson and her husband owned a boat storage warehouse near Bran-son, Missouri. On August 8, 1974, an unidentified man leased boat stall number 8 from Mrs. Thompson. The written lease was for a term of three months beginning August 9, 1974. Mrs. Thompson gave the key to stall 8 to the lessee.

Mrs. Thompson saw a boat and trailer (identified as those of the defendant) in stall 8 a day or two later. The boat had been placed in the stall during her absence.

On August 9, 1974, defendant reported to law enforcement officers in Greene County that his boat, trailer and accessories had been stolen on that date from the yard of his rural residence.

The boat remained in stall 8 for a period of time but, before the lease expired, it was removed from the boat storage. Examination of the lock to stall 8, after the removal, showed that it had not been “tampered with.”

Employees of Allstate testified that the defendant, on August 12, 1974, made a claim under his policy and represented to them that the boat, trailer and accessories had been stolen from his home on August 9. Allstate paid $9,800 on the claim.

Oren Coulter testified that in September 1974 he was a member of a boat theft ring headed by Bob Rantz. In September 1974 Rantz and Coulter met two men from St. Louis, Larry Brown and Carl Collard, at a restaurant. The four men went to the boat storage. Using a key, Rantz opened the door to stall 8 and the men removed defendant’s boat, trailer and accessories. Coulter used some lacquer thinner to remove the name, “Sweet Charity,” which was on the boat. Brown gave Rantz $1,000 in cash and Brown and Collard took the boat to St. Louis. Rantz paid Coulter $300 or $400 out of the $1,000 Rantz received from Brown.

On November 1, 1974, Coulter and Rantz were at the defendant’s house. Coulter testified that a conversation took place between Rantz and the defendant in which defendant asked if the boat “would ever show up” and Rantz said, “no.” The defendant asked Rantz if it was “enough money, $700.” In the same conversation defendant asked Rantz what Rantz and Coulter had done with the boat and Rantz said, “We sold it for $1,000.” Thereupon the defendant said, “Well, you guys are getting paid on both ends of the deal. You are getting paid to get rid of it and you are selling it.”

In March 1976 Charles Whitlow, a Greene County detective, together with two other officers, went to defendant’s office and talked with him. Defendant was given the Miranda warning. Whitlow told the defendant that the officers were “working on his boat that he had reported stolen. I told him we had found through my investigation the boat had not been taken from him but had been taken with his permission so he could collect the insurance on it. I asked the defendant if it was not true he had the boat hidden or destroyed so he could collect the insurance.”

Initially the defendant denied Whitlow’s accusations but, as the three officers were preparing to leave the office, defendant asked Whitlow to remain. While the other two officers waited outside, defendant told Whitlow that his accusations were true. Defendant told Whitlow he had paid Rantz to burn or destroy the boat.

In his argument defendant asserts there was no showing by the state that defendant committed the crime “other than his alleged statements related by Coulter and Whit-low.” Those statements, defendant argues, should not have been admitted into evidence because “there was no showing of the corpus delicti of the crime.”

Instruction 4, the state’s verdict-directing instruction upon which the jury returned its verdict of guilty, was based primarily upon MAI 10.04. Instruction 4, in essence, required the following findings:

(a) Defendant, on a specified date and in Greene County, represented to employees of Allstate Insurance Company that the boat, trailer and boating accessories were stolen from his residence at Route 2, Rogersville, Missouri, on August 9, 1974;

(b) Allstate insured the items mentioned in the representation;

(c) Defendant knew the representation was false and, in making it, intended to cheat and defraud Allstate;

(d) Allstate’s employees believed the representation and were induced, by their reliance on it, to pay and did pay $9,800 to defendant.

Defendant testified on his own behalf and he admitted, as the state’s evidence also showed, the existence of elements (a), (b) and (d). The basic inquiry is whether or not the evidence was sufficient to entitle the jury to make finding (c).

The representation which defendant admittedly made to the Allstate employees was that the boat, trailer and accessories were stolen from his residence and that the theft occurred on August 9, 1974. Under Instruction 4 the state had the burden of proving that the defendant knew the representation was false. Defendant, of course, could not know the representation was false unless it was in fact false.

The evidence is sufficient to show that the boat, trailer and accessories were moved on August 9, 1974, from defendant’s residence to the boat storage warehouse. Proof of the falsity of the representation required the state to show that the movement of the articles was not a theft.

All of the evidence showed that the defendant was in fact the owner of the items. If the state had adduced proof that their removal from his residence to the boat warehouse was done with defendant’s consent, the falsity of the representation would be shown. The flaw in the state’s case is that the only evidence of the falsity of the representation consists of the statements which defendant made on November 1, 1974, as testified to by Coulter, and the statements which defendant made to Charles Whitlow in March 1976 as testified to by Whitlow.

Extrajudicial statements, admissions or confessions, are both inadmissible and insufficient to sustain a conviction unless there is independent proof, direct or circumstantial, of the essential elements of the corpus delicti. “[T]he corpus delicti cannot be presumed and must be proved by legal evidence sufficient to show that the specific crime charged has actually been committed by someone.” State v. Summers, 362 S.W.2d 537, 542 (Mo.1962).

Full proof of the corpus delicti, independent of a confession, is not required. “All that is required is evidence of corroborating circumstances tending to prove the corpus delicti and corresponding with circumstances related in the confession.” State v. Dodson, 551 S.W.2d 932, 935 (Mo.App.1977). Only slight corroborating facts are sufficient to establish the corpus de-licti.

In City of St. Louis v. Watters, 289 S.W.2d 444 (Mo.App.1956) the defendant was charged with the violation of a city ordinance which made it an offense “to falsely report a law violation to a police officer of the City of St. Louis.” The charge was that the defendant violated the ordinance by falsely reporting to a St. Louis police officer that he had been robbed.

The only evidence adduced by the city to show the falsity of the defendant’s report was testimony by police officer Marvel. Marvel testified that after a polygraph test had been given, the defendant told Marvel that his prior report of the robbery was false and that the defendant had paid various bills with the money which he had previously reported as taken from him in the robbery.

In reversing the conviction the court stated at p. 446:

“The substance of the offense here is that a robbery was reported when none in fact had taken place. The gravamen of the offense is the falsity of the report. This is the corpus delicti. It is established law in Missouri that when the corpus delicti has not been sufficiently proven, an uncorroborated extrajudicial confession of guilt cannot be regarded as evidence tending to show guilt.

“In applying this to the facts before us, we find nothing here beyond the bare confession of the defendant which tends to prove that a robbery was falsely reported. Neither is there a single circumstance related in the brief testimony of the police officers which corroborates the confession, such as proof that he spent the money of which he said that he had been robbed.

“There appears to be no Missouri case touching upon this question, where the crime charged involved a false statement, but there are some Federal cases relating to persons charged with falsely representing themselves to be citizens of the United States. Gulotta v. United States, 8 Cir., 113 F.2d 683; Fotie v. United States, 8 Cir., 137 F.2d 831; and Warszower v. United States, 312 U.S. 342, 61 S.Ct. 603, 85 L.Ed. 876. All of these cases give recognition to the rule that a confession of the falsity wholly uncorroborated is not sufficient to sustain a conviction.”

In prosecutions for obtaining money under false pretenses (or similar offenses where the making of a false representation is an element) the following authorities hold that a conviction will not be upheld where the only evidence of the falsity of the representation consists of statements (whether confessions, admissions or something less) attributed to the defendant in which he acknowledges the falsity of the representation. Button v. State, 207 Miss. 582, 42 So.2d 773 (1949); Owen v. State, 159 Miss. 588, 132 So. 753 (1931); Gulotta v. United States, 113 F.2d 683 (8th Cir. 1940); Johnson v. State, 142 Ala. 1, 37 So. 937 (1904); People v. Simonsen, 107 Cal. 345, 40 P. 440 (1895); People v. Ward, 145 Cal. 736, 79 P. 448 (1905); State v. Penny, 70 Iowa 190, 30 N.W. 561 (1886).

The state argues that the non-occurrence of the theft, as acknowledged by the defendant in his statements to Whitlow and as reasonably inferred from defendant’s statements in the presence of Coulter, is corroborated by the following facts: (1) Someone executed the boat storage lease on August 8, 1974, for a period of three months; (2) A boat was put in the storage stall within a day or two after the execution of the lease; (3) In September 1974 Coulter and Rantz went to the boat storage; (4) The boat was that of the defendant; (5) The lock to the boat stall was not tampered with and it is a reasonable inference that the key given to the unidentified lessee was used by Rantz when he removed the boat from the stall.

The state’s position is unsound for the reason that each of the foregoing facts is as consistent with the occurrence of larceny as it is with the non-occurrence of larceny. They supply no corroboration for the statements attributed to the defendant acknowledging that no theft was committed.

Defendant’s statements to Whitlow do not supply the necessary corroboration to defendant’s statements made in the presence of Coulter. An extrajudicial confession or admission cannot be used to corroborate another extrajudicial confession or admission. See United States v. Stabler, 490 F.2d 345, 350[6] (8th Cir. 1974) and authorities there cited.

The judgment must be reversed and the defendant discharged.

It is so ordered.

All concur, except GREENE, J., recused.

      . State v. Summers, 362 S.W.2d 537, 542[13] (Mo. 1962); State v. Cooper, 358 Mo. 269, 214 S.W.2d 19, 20 (1948); State v. White, 552 S.W.2d 33, 34 (Mo.App.1977); Kansas City v. Verstraete, 481 S.W.2d 615, 617 (Mo.App.1972).

      . State v. McQuinn, 361 Mo. 631, 235 S.W.2d 396, 397[3] (1951); State v. Arndt, 143 S.W.2d 286, 287 (Mo. 1940); State v. Skibiski, 245 Mo. 459, 150 S.W. 1038, 1039[1] (Mo.1912); State v. Robinson, 555 S.W.2d 667, 669[5] (Mo.App.1977); State v. Colton, 529 S.W.2d 919, 922 (Mo.App.1975).

      . To similar effect see State v. McQuinn, 361 Mo. 631, 235 S.W.2d 396, 397[4] (1951); State v. Skibiski, 245 Mo. 459, 150 S.W. 1038, 1039[1] (Mo.1912); State v. Robinson, 555 S.W.2d 667, 669 (Mo.App.1977); State v. Colton, 529 S.W.2d 919, 922 (Mo.App.1975).

      . State v. McQuinn, 361 Mo. 631, 235 S.W.2d 396, 397[3] (1951); State v. Arndt, 143 S.W.2d 286, 287 (Mo.1940); State v. Robinson, 555 S.W.2d 667, 669 (Mo.App.1977).

      . The rule has been criticized. See State v. Urie, 92 Idaho 71, 437 P.2d 24 (1968)—concurring opinion of Justice McFadden beginning on page 28 of 437 P.2d.


author: TITUS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Ronald HARMON, Appellant.
    No. 10985.
    Missouri Court of Appeals, Southern District, Division One.
    Sept. 13, 1979.
    John D. Ashcroft, Atty. Gen., Marjorie Wholey Haines, Asst. Atty. Gen., Jefferson City, for respondent.
    David Robards, Public Defender, Joplin, for appellant.
   TITUS, Presiding Judge.

Charged as a habitual criminal (§ 556.-280 RSMo 1969) with stealing (§§ 560.156 RSMo 1969 and 560.161 RSMo Supp.1975) a 1967 Pontiac Firebird automobile (a General Motors product), defendant was jury-convicted and court-sentenced to a prison term of five years. Defendant appealed.

Defendant’s first point relied on: “The trial court erred in overruling defendant’s motion to suppress car keys and in admitting over objection, the keys at trial because the keys were obtained by the police from defendant’s personal property as a result of an unreasonable, warrantless and unconstitutional seizure.”

To understand defendant’s first point, the following factual background is necessary. The Pontiac, with keys in the ignition switch, had been left at a Joplin transmission service shop for repairs. Sometime after 10 p. m., March 14, 1977, the car was stolen but was recovered by the police in the early morning hours of March 15, 1977. When recovered, the keys were missing from the car. Defendant was arrested for the theft on the 15th, taken to the Joplin Police Department and subjected to an inventory search before being placed in jail. The search, inter alia, revealed that defendant was possessed of keys for a General Motors vehicle and a key to a gas cap lock. Shortly after the items taken from defendant were put in police storage, an officer, without a search warrant, secured the keys and tried them on the door lock, the trunk lock and the gas cap lock of the stolen Pontiac. They all fit. Defendant’s motion to suppress the keys and his trial objections to their introduction as evidence were overruled by the court. As indicated by his first point relied on, supra, defendant asseverates this was error. It is worthy of note that defendant does not claim his arrest was illegal; neither does he question the constitutionality of the inventory search of his person and the retention of the inventoried items by the police in a separate container for safekeeping during incarceration. In substance, defendant is objecting to the warrantless “second look” made by the police of items properly obtained initially via a custodial search.

If, incident to a lawful arrest and a subsequent inventory or custodial search of a defendant prior to and reasonably concomitant with incarceration, police obtain objects which are or reasonably may be associated with criminal activity, the official use of such items, within a reasonable time thereafter and without a search warrant, to test or compare their connection to criminal conduct, is not an intrusion into an area where defendant may reasonably expect privacy. Neither does it violate a defendant’s constitutional rights to be free from unlawful searches, seizures or self-incrimination. United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), seizure and testing of clothing; United States v. Grill, 484 F.2d 990 (5th Cir. 1973), testing inventoried key into lock; Westover v. United States, 394 F.2d 164 (9th Cir. 1968) and United States v. Smith, 340 F.Supp. 1023 (D.C.Conn.1972), seizure and examining marked or “bait money"; Golliher v. United States, 362 F.2d 594 (8th Cir. 1966), seizure and testing of clothing; State v. Gordon, 527 S.W.2d 6 (Mo.App.1975), taking soil from clothing and testing same; State v. Achter, 512 S.W.2d 894 (Mo.App.1974), stolen items in abandoned automobile. Defendant’s first point relied on is denied.

Defendant’s second and last point relied on: “The trial court erred in submitting the case to the jury as the state failed to introduce sufficient evidence which would support a verdict of guilty of stealing a motor vehicle.”

As written, the point violates the mandatory requirements of Rule 84.04(d), V.A.M.R., because it nowhere undertakes to demonstrate “wherein and why” there was insufficient evidence to support the guilty verdict. State v. Brown, 554 S.W.2d 574, 580[15] (Mo.App.1977). However, if the state failed to make a submissible case, then plain error resulted. Therefore, we will briefly review the point bearing in mind that the evidence and all reasonable inferences flowing therefrom are to be viewed in the light most favorable to the verdict. State v. Haslip, 583 S.W.2d 225, 227[2, 3] (Mo.App.1979).

As before noted, the owner of the Pontiac took it to the transmission service shop and left it for repairs with the keys in the ignition switch. The car was parked outside the shop and was there at 10 p. m. when the shop owner left for the night. Two and a half to three hours later a witness observed the Pontiac and the operator thereof three times unsuccessfully attempt to drive it up the grade of a viaduct located a short distance from the transmission shop. The witness was “sure there couldn’t have” been more than one person in the Pontiac. The witness saw a man who emerged from the driver’s side of the vehicle and walked away from the car with “a crippled walk” to beneath the viaduct. Hailing a passing police car, the witness told the officers what he had observed. Sometime subsequent to the arrival of police, the witness “saw a person fitting the same general description [as the man previously observed], so far as the [crippled] walk is concerned, getting into a cab.”

Following police arrival, the Pontiac was inspected and the keys thereto were missing. Shortly thereafter defendant, who identified himself to the police and who the police already knew, was encountered beneath the viaduct. Defendant asked the officers “to call him a cab.” The officers obliged and defendant left the scene in the taxi as apparently observed by the witness aforesaid. After the police ascertained the Pontiac had been stolen, they located and arrested defendant and found him possessed of the keys to the stolen vehicle. The owner of the Pontiac testified the reason he had taken the vehicle to the transmission shop for repairs was that “[i]t would only run for four or five blocks, and then it would start slipping and then you would have to sit and let the fluid run into the pump again before it would run again.”

“Because circumstantial evidence requires jurors to use an inferential process to determine an ultimate fact, it is appropriate to caution them [by giving MAI-CR 3.42, as was done here] to make certain that their inferences are reasonable, consistent with the guilt of the defendant and inconsistent with any reasonable theory of his innocence.” State v. Lasley, 583 S.W.2d 511, 516 (Mo. banc 1979). However, “the prevailing circumstantial evidence rule, supra, is realistically tempered in its application since ‘[i]n a case involving circumstantial evidence the circumstances need not be absolutely conclusive of guilty, and they need not demonstrate impossibility of innocence[; ] . . . the mere existence of other possible hypothesis is not enough to remove the case from the jury.’ ” State v. Franco, 544 S.W.2d 533, 534-535[3] (Mo. banc 1976).

From the evidence presented, the jury could reasonably infer the Pontiac had been stolen from the transmission shop after 10 p. m. March 14 and before 12:30 or 1 a. m. March 15, at which time, because of mechanical malfunctioning, it was not capable of being driven over the viaduct. The witness who observed this sequence of events also saw a man, whom he believed to be its lone occupant, leave the automobile and go beneath the viaduct with a “crippled walk.” Later, the police observed defendant come from under the viaduct and depart in a taxi they had summoned at his request. The witness said the taxi entrant (identified by police as the defendant) had “the same walk” as the man he had previously seen leaving the Pontiac. Thereafter, inspection of the Pontiac revealed the keys thereto were missing therefrom and these keys were subsequently found in defendant’s possession. From the foregoing the jury could reasonably infer it was defendant who, as the stealer-driver of the Pontiac, unsuccessfully tried to drive it over the viaduct, abandoned his efforts because of mechanical failure, removed and took possession of the car keys, left the Pontiac, walked beneath the viaduct and later appeared therefrom to leave the scene in a police-summoned taxi. Defendant’s exclusive and unexplained possession of a recently stolen automobile, when coupled with his exclusive and unexplained possession of the keys thereto, authorized an inference of knowledge that the vehicle was stolen. State v. Costello, 546 S.W.2d 22, 24[5] (Mo. App.1976). Albeit, under the circumstances in this case, the permissible inferences are not of themselves conclusive, they need not demonstrate an absolute impossibility of innocence. State v. Aguilar, 429 S.W.2d 754, 757 (Mo.1968). When the facts are considered in conjunction with the permissible inferences, they point satisfactorily and clearly to defendant’s guilt and exclude every reasonable hypothesis of innocence.

Judgment affirmed.

All concur, except PREWITT, J., not participating because not a member of the court when cause was submitted.

      . Statutes repealed L.1977 S.B. 60 § 1, effective 1-1-79.