Opinion
No. 71420
OPINION FILED: May 12, 1998
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, HON. JOSEPH DANDURAND.
Raymond J. Capelovitch, Assistant Public Defender, 1221 Locust Street, Suite 350, St. Louis, MO 63103, for appellant.
JEREMIAH W. (JAY) NIXON, ATTORNEY GENERAL, Meghan J. Stephens, Assistant Attorney General, P.O. Box 899, Jefferson City, MO 65102, for respondent.
Karohl, writer, Ahrens, P.J. and Crandall, Jr., concur.
Defendant, Elijah Yacub, appeals from the judgment entered on his conviction of burglary in the second degree. The trial court refused to submit a first degree trespassing instruction as a lesser included offense. The jury found defendant guilty of burglary second degree, section 569.170 RSMo 1994, and the court sentenced defendant as a prior and persistent offender to serve eight years in the Missouri Department of Corrections. We affirm.
On September 28, 1995, police officers Dotson and Russell responded to a call at 3:40 a.m. The call concerned a possible burglary at 4463 Penrose in the City of St. Louis. When the officers arrived, they inspected the front of the house. As they approached the side of the house and walked to the rear, the officers heard noises coming from inside the house and noticed that bars on a second story window had been pried back. When they arrived at the back door, they saw defendant coming out of the house. The officers detained defendant without a struggle and placed him under arrest shortly thereafter. The police inspected the inside of the house and found kitchen cabinets and aluminum storm windows and doors near the rear door of the house from which defendant exited. A police evidence technician dusted the house for fingerprints, but was unable to recover any identifiable prints.
After being notified of the burglary, the owner of the residence, Althea Smith, went to the house while the police were investigating. She had been there the afternoon before the burglary to secure the house because it had been burglarized the previous night. When she left the house on the afternoon of September 27, the kitchen cabinets were in the living room and the storm windows and doors were in a location other than near the rear door. When Ms. Smith left the house the afternoon before the burglary, the house did not have a kitchen sink, the kitchen cabinets were not installed, the bathroom did not have a face bowl, water pipes had been dismantled and parts of the furnace had been stolen. Additionally, Ms. Smith had to re-secure the bars on a second story window. When she arrived at the house on September 28, in response to the police's call, she noticed the kitchen cabinets and storm windows and doors were in a different location than they were the afternoon before the burglary.
Ms. Smith owned the house and used it as rental property. The last tenants moved out sometime in August, approximately one month before the burglary.
Defendant raises two points on appeal. In his first point, he argues there was insufficient evidence to support the conviction because the state failed to prove 4463 Penrose was an "inhabitable structure" as charged in the indictment.
Burglary occurs when a person "knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein." Section 569.170 RSMo 1994. The state charged defendant with entering an inhabitable structure. By charging defendant with entering an inhabitable structure, the state assumed the burden of proving the house was an inhabitable structure. There was sufficient evidence to support a finding that 4463 Penrose was an inhabitable structure as defined in section 569.010 RSMo 1994. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993). Ms. Smith used the property as rental property. She testified that she was in the process of cleaning up the house between tenants. A structure is inhabitable regardless of whether a person is actually present. Section 569.010(2) RSMo 1994. The repairs that were in progress did not render the residence uninhabitable as a matter of law. Point denied.
In his second point, defendant argues the trial court erred when it refused to submit his instruction on trespass in the first degree. "A person commits the crime of trespass in the first degree if he knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure or upon real property." Section 569.140 RSMo 1994. Burglary requires the additional element of intent to commit a crime within the premises. Section 569.170 RSMo 1994. Defendant argues the trial court committed error because the evidence supported an inference that defendant entered 4463 Penrose for a purpose other than to steal, and therefore, the evidence provided a basis for an acquittal on the burglary charge and a conviction of trespass in the first degree.
Trespass in the first degree is a lesser included offense of burglary in the second degree. State v. Blewett, 853 S.W.2d 455, 459 (Mo.App.W.D. 1993). We have said the trial court must instruct the jury on a lesser offense only if there is "affirmative evidence of a lack of an essential element of the higher offense which would not only authorize acquittal of the higher but sustain a conviction of the lesser." State v. Childress, 901 S.W.2d 321, 322 (Mo.App.E.D. 1995) (quoting State v. Word, 829 S.W.2d 113, 116 (Mo.App.E.D. 1992)). We must resolve all doubt in favor of instructing down. State v. Warrington, 884 S.W.2d 711, 717 (Mo.App.S.D. 1994).
In Childress, we found it was error for the trial court not to instruct the jury on trespass in the first degree. In Childress we relied on State v. Moore, 729 S.W.2d 239 (Mo.App. 1987), and found that even though the evidence was sufficient to support a conviction for burglary, the inference of an element of the charged crime, intent to steal, was not compelling because there was no forcible entry into the house and nothing had been disturbed within the house. Childress, 901 S.W.2d at 322. The evidence of intent to steal in this case is compelling. Id; See,Blewett, 853 S.W.2d at 459. The evidence in this case supports finding defendant forcibly entered the house and moved some contents of the house.
Additionally, in Childress, defendant testified and presented evidence to refute the element of intent to commit burglary. Defendant in this case did not testify. He offered the testimony of Officer Korte and Mr. Wildsmith, defendant's attorney at the preliminary hearing. Officer Korte testified he was unable to recover any identifiable prints within the house. Mr. Wildsmith testified about statements Ms. Smith made at the preliminary hearing. These witnesses did not provide an alternative reason to explain defendant's presence within the house that would refute an intent to steal. Defendant was apprehended coming out of the rear door of a house where bars on a second story window had been pried back and items of personal property had been moved. Point denied.
Affirmed.
Clifford H. Ahrens, P.J. and William H. Crandall, Jr., J., concur.