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06/09/83 STATE MISSOURI v. BRIAN ANDREW ABBOTT

June 9, 1983

STATE OF MISSOURI, RESPONDENT
v.
BRIAN ANDREW ABBOTT, APPELLANT



From the Circuit Court of Dent County; Criminal Appeal; Judge William E. Seay.

Motion for Rehearing Overruled, Transfer Denied, Per Curiam on Motion to Modifiy Opinion July 1, 1983. Application Denied August 16, 1983.

Before Crow, P.j., Greene, C.j., Flanigan, Maus, Prewitt, JJ.

The opinion of the court was delivered by: Crow

A jury found appellant ("Abbott") guilty of murder in the second degree, § 565.004, RSMo 1978, as charged in Count I of the information, and guilty of stealing a motor vehicle, § 570.030, RSMo 1978, as charged in Count II, and assessed prison sentences of 30 years and 7 years, respectively. The trial court sentenced Abbott to those terms, to run consecutively.

Abbott briefs 10 points, one of which (number 4) is that the trial court erred in denying Abbott's motion for judgment of acquittal as to Count I at the close of the State's case, and in denying a similar motion at the close of all the evidence. Abbott makes the same assertion as to Count II (point number 9). He argues there was insufficient evidence to submit either Count to the jury. *fn1 Other allegations of error will be considered after reviewing the evidence.

In determining whether the evidence is sufficient to sustain the verdicts, we accept the State's evidence as true and give the State the benefit of all reasonable inferences deducible therefrom, disregarding all evidence and inferences to the contrary. State v. Jones, 594 S.W.2d 932, 935[2] (Mo. 1980).

The murder victim was Margaret H. Smith, a 73-year-old, unmarried, retired geography professor at Southeast Missouri State University. The motor vehicle that was stolen belonged to her.

On Thursday, July 10, 1980, Dr. Smith was residing alone in her home at 1526 Bertling Street in Cape Girardeau. She was between five feet two inches and five feet three inches tall, and weighed about 140 pounds. That afternoon the pastor of her church visited her between three and four o'clock and found her in good health. About dusk, Louis O. McAtee, her next door neighbor for over 15 years, saw her tending flowers in her yard. Her automobile, a "white over red" 1978 Oldsmobile Cutlas, was in her carport. McAtee never saw Dr. Smith again.

That same day, Abbott (date of birth, November 14, 1963) was residing with his parents at 1216 Bertling, "three or four houses" east of the intersection of West End Boulevard and Bertling, and about two to three blocks east of Dr. Smith's home. Abbott was employed at the municipal swimming pool at Capaha Park in Cape Girardeau.

Abbott got off work when the pool closed at nine o'clock that evening. He phoned his father, explaining that he was going to a friend's house and would be home "around 10 or 10:30." Abbott then walked with four other teenagers, including Mark Ikerman and Tammy Houck, from the pool to the Houck home, the journey requiring 15 or 20 minutes. Abbott remained at the Houck home until about 11:15 or 11:30, the departed on foot with Ikerman, whose home was near Abbott's.

Abbott's mother testified that her husband became upset when Abbott was not home by 10:30. She quoted her husband as saying he was going to make Abbott believe he was going to obey his "curfew." Mrs. Abbott's husband packed Abbott's clothes in a box and put the box on the back porch at 11:00 p.m., then went to bed. Mrs. Abbott remained in the living room, trying to "listen" for Abbott. She fell asleep, however, and did not awaken until morning.

About 11:40 p.m., July 10, Mark Ikerman's mother left the Ikerman home in her automobile, looking for Mark. She saw him on West End, a few blocks from home, walking with Abbott. She picked them up, taking Abbott to the corner of West End and Bertling. Abbott got out there about 11:45, and Mrs. Ikerman continued home with Mark.

A little over 30 minutes later, Michael Frisbee got off work at a restaurant in Cape Girardeau and began driving around, and after a few minutes saw a friend, Randy Todd. Frisbee picked Todd up and continued driving until about 12:50 a.m., July 11, 1980. At that time, Frisbee dropped Todd off in a parking lot of a closed fast-food restaurant. Todd got in a red Cutlass with a white top. At trial, Frisbee was shown photographs of Dr. Smith's Cutlass, and identified that vehicle as the one Todd entered. Frisbee also identified Abbott at trial, and testified Abbott was in the Cutlass when Todd entered it.

About 6:30 or 7:00 a.m., July 11, 1980, Dr. Smith's neighbor, McAtee, noticed Dr. Smith's Cutlass was not in the carport where it had been the evening before. McAtee never saw the Cutlass again.

Tammy Houck saw Abbott about 1:00 p.m., July 11, 1980, at her home. Abbott was driving a white over red Oldsmobile. At trial, Tammy was shown photographs of Dr. Smith's Cutlass, and identified that vehicle as the one Abbott was driving. Tammy had never seen Abbott in that vehicle before. She quoted Abbott as saying he got the car from his uncle, but didn't want anyone to know he had it. Abbott explained his parents had "kicked him out" of the house the night before, so he slept in the car. Some of Abbott's clothes were in the back seat.

On Sunday, July 13, 1980, about 7:30 a.m., Officer Lisa McElreath of the Cape Girardeau police department, saw a two-door Oldsmobile with white vinyl top parked on the roadside in Shawnee Park in Cape Girardeau. Officer McElreath attempted to check the license plate registration by radio, but the computer was out of service. Officer McElreath discovered Abbott asleep in the front seat and Randy Todd asleep in the back seat. She instructed them to leave the area. At trial, Officer McElreath was shown photographs of Dr. Smith's Cutlass, and identified that vehicle as the one occupied by Abbott and Todd.

On Wednesday morning, July 16, 1980, McAtee, who had become increasingly concerned about Dr. Smith's absence, entered her home with a key she had given him many years earlier, and which he had used in the past to "look after things" and feed her cat when she was gone. McAtee explained that Dr. Smith always kept the door between her kitchen and front room closed, confining the cat to the kitchen. When he entered, McAtee discovered the cat in a part of the house where it was not ordinarily allowed. McAtee saw "the clothes and everything was scattered all over the floor back in the bedroom and I knew then it was time to do something." He contacted the police.

Lt. Dennis Dolan of the Cape Girardeau police department sent two evidence technicians to Dr. Smith's home, and went there himself a short time later. Dolan saw a tear in the screen door on the rear entrance. The tear measured "2 inches horizontally and 2 1/2 inches vertically." He found no other sign of possible forced entry.

There was a blood spot on the kitchen floor "that looked like one had stepped in or had on their shoes and tracked." In the living room, a few feet from the kitchen, there were two bloodstains on the carpet in front of a desk. A calendar on the desk had a "small smear stain." A "Fingertip" bloodstain was found on the inside of the front door.

In a hallway connecting the living room to Dr. Smith's bedroom, a bloodstain "about the size of a quarter" was found on the carpet about three feet from the bedroom door frame. There was a small amount of blood on the door frame, and a small blood spot by the light switch on the bedroom wall. The bed was "pretty disarrayed," and the technicians found no top sheet or bedspread on the bed. Two drawers were pulled out, their contents spilled on the floor. The technicians found two white "sock's" one on the floor and the other on the bed beneath a pillow.

In the bathroom, a small bloodstain was found on the side of the tub near the floor, and another bloodstain was found on the bathroom carpet just below the stain on the tub. A footprint was discovered on the side of the tub, similar in size to several shoes in the bedroom closet.

There were "markings" indicating something had been "drug" against the grain of the bathroom and hall carpets, into the living room.

The technicians collected samples of the bloodstains, and took possession of the calendar and the two socks. They also took a diary lying on a stand in the living room.

In addition to processing Dr. Smith's home for evidence, the police issued an "all points bulletin" for her Cutlass.

Abbott was taken into custody "under juvenile jurisdiction," that same day, July 16, 1980, and the Cutlass was found by police in Capaha Park about a mile from Dr. Smith's home.

The Cutlass was impounded, and searched by a police evidence technician the evening of July 16. The technician removed a piece of newspaper and a paper towel from the trunk, along with a pair of tennis shoes and a knife sheath.

The calendar, socks and bloodstain samples from Dr. Smith's home were submitted to the Southeast Missouri Regional Crime Laboratory at Cape Girardeau for examination. The Laboratory director, an experienced chemist with a bachelor's and doctor's degree in that field, performed tests on the samples from the bedroom wall, door frame, hall carpet, bathroom carpet, bathtub, living room carpet, kitchen floor and calendar. All of those stains were type A human blood. The director also tested the newspaper, paper towel and tennis shoes removed from the trunk of Dr. Smith's Cutlass. He found type A human blood on the newspaper and the left tennis shoe. In his opinion, the blood on the shoe had been there no more than a month.

Dr. Smith had type A blood.

The director performed further tests on the stains on the bathroom carpet and the newspaper from the Cutlass' trunk, and identified "five additional genetic factors." From calculations based on the average frequency of occurrence of those factors in the population, the director concluded that less than one person in a hundred would have the combination of factors found in the stains on those two items. *fn2 It was the director's opinion that the blood in those two stains came from the same individual.

The director found a green nylon carpet fiber on the newspaper from the Cutlass' trunk. That fiber was consistent with a fiber from the bathroom carpet.

The director tested the socks, and concluded "seminal material" was present on both.

On February 23, 1981, more than seven months after Dr. Smith disappeared, her skeletal remains were found down an embankment on the east side of route 177 about three miles north of Cape Girardeau. They were 27 feet from the shoulder, not visible from the roadway because of the 50 degree slope and underbrush.

A purse was found 30 feet from the remains. The purse contained a "pocketbook" with credit cards issued to Dr. Smith, a nightgown, a matching robe and a towel. There were no tears or cuts in the nightgown or robe. No trace of clothing was found with the remains.

A forensic anthropologist, whose qualifications were stipulated, examined the remains at the site. He found no evidence of bullet wounds, cutting, or broken bones. There was some dry tissue holding most of the remains together, but the flesh had almost completely decayed. Insect larvae beneath the upper part of the remains indicated it was "quite possible" that the body had been there since the preceding July.

On February 26, 1981, the nightgown, robe and towel were taken to the Crime Laboratory, and the director found stains of type A human blood on the nightgown and bloodstains on the towel.

Sometime before trial, at the request of Abbott's attorneys, the director did some additional tests on the socks, and again concluded that seminal material was present on both. At trial, the director explained that about 80 per cent of the people secrete their blood type in body fluids such as seminal material, urine and saliva. Analysis of the seminal stains on the socks revealed they were from a person with type B blood. That type occurs in about 15 per cent of the population. Recognizing that only half the people with type B blood are males (7.5 per cent of the population), and that only 80 percent of those would be secretors, the director concluded that the seminla material on the socks could have come only from about six to seven per cent of the population.

The director tested specimens of Abbott's blood and saliva. Abbott has type B blood, and secretes his blood type in his saliva. Randy Todd had type O blood. *fn3

At trial, Professor Constance Rowe, a colleague of Dr. Smith for over 10 years, was shown the diary taken from Dr. Smith's home by the evidence technicians. Professor Rowe identified the handwriting in the diary as Dr. Smith's. There were no entries after July 10, 1980, except reminders about future events. Professor Rowe never knew Dr. Smith to lend her automobile to anyone. Professor Rowe was shown the knife sheath removed from the trunk of Dr. Smith's Cutlass July 16, 1980, and testified she had never seen the sheath in Dr. Smith's possession.

Elizabeth Ann Ramey, a swimming instructor at the pool in Capaha Park in the summer of 1980, saw Abbott around noon on Monday, July 14, 1980, in the pool parking lot. Abbott was driving a white over red General Motors car, accompanied by two other young males. Elizabeth asked Abbott where he had gotten the car, and Abbott replied he had gotten it from a friend. At trial, Elizabeth was shown photographs of Dr. Smith's Cutlass, and she identified that vehicle as the one Abbott was driving. Elizabeth was shown the tennis shoes removed from the Cutlass' trunk July 16, 1980, and testified they resembled shoes Abbott was wearing the day she saw him in that vehicle. Elizabeth was also shown the knife sheath found in the Cutlass' trunk. She recalled having seen a sheath knife on Abbott's belt on two occasions in June, 1980, and testified the sheath from the trunk was the same type Abbott had worn.

James G. Bridgens, a licensed physician specializing in pathology, whose expertise in forensic pathology was stipulated, testified that in his opinion Dr. Smith "met her death by multiple stab wounds." He explained that penetrating wounds frequently result in very little external bleeding, and that often blood comes from such wounds only when the body is moved. Dr. Bridgens ruled out all other causes of death except strangulation, and as to that possibility he pointed out that the bloodstains in Dr. Smith's home were inconsistent with strangulation because "patients don't bleed when they're strangled and we've got to have some type of injury that's going to cause some hemorrhage. Hemorrhage into the body cavities, so that when this body is moved from one position to another blood is going to come out of the wound."

Abbott testified that after Mrs. Ikerman let him out of her automobile at the corner of West End and Bertling about 11:45 p.m., July 10, 1980, he walked home and found his clothes outside the back door. Abbott "knew what that meant because me and my father had been having problems and he said if I didn't obey him coming in at the time I was supposed to that he was going to kick me out and that I'd have to live on my own."

Abbott testified he decided to go to a friend's house near Capaha Park. According to Abbott, he walked there carrying his clothes, but saw no car and no lights. Assuming no one was home, Abbott walked to another friend's house but got no answer when he knocked on the door. Abbott explained he then walked into a parking lot and saw some cars, and decided to take one and go to the home of an aunt or a sister. He found a red and white Oldsmobile with unlocked doors, and got in to see "if I could hot wire it." Abbott testified he found the keys on the floor, put his clothes in the trunk and "took off" in the car. After driving around he parked in the lot of a fast-food restaurant, and while there Randy Todd arrived with "Frisbee." Todd entered the Oldsmobile and asked for a ride to a friend's house, explaining that he (Todd) had also "got kicked out of the house." Abbott testified he took Todd to some apartments, then drove to the home of a "girl friend" near Scott City. On arrival, Abbott found "there wasn't nobody up," so he parked the car and fell asleep, remaining there until morning. Abbott testified he knew the vehicle was not his, and that it belonged to somebody else. He continued using it until his arrest July 16, 1980. He denied killing Dr. Smith, but admitted stealing the Cutlass from the parking lot.

A year or more after Abbott was arrested, a detective had Abbott try on one of the tennis shoes found in the Cutlass' trunk. Abbott got it on, but it was "too tight to wear."

Abbott asserts the evidence was insufficient to support a finding that he was responsible for the killing of Dr. Smith. He argues that because the State's case was based entirely on circumstantial evidence, motive is a very important factor, and there was no evidence that he had a motive to kill Dr. Smith.

Motive is not an essential element of the crime of murder. State v. King, 433 S.W.2d 825, 827[1] (Mo. 1968). The presence or absence of motive is an evidentiary circumstances to be given such weight by the jury as they consider it entitled to under all the circumstances. Id. at 827[2]. All elements of a homicide case may be proved circumstantially. State v. Ross, 371 S.W.2d 224, 225[1] (Mo. 1963); State v. Suschank, 595 S.W.2d 295, 297[1] (Mo. App. 1979). When a case is based on circumstantial evidence, the circumstances and facts must be consistent with each other and with the hypothesis of guilt, be inconsistent with the hypothesis of innocence, and point so clearly to guilt as to exclude every reasonable hypothesis of innocence. State v. Moss, 622 S.W.2d 292, 295[1] (Mo. App. 1981); State v. Suschank, supra, 595 S.W.2d at 297. However, the circumstances need not be absolutely conclusive of guilt and need not demonstrate the impossibility of innocence. State v. Moss, supra, 622 S.W.2d at 295; State v. Suschank, supra, 595 S.W.2d at 297[2]. Furthermore, all evidence on the whole record tending to support the guilty verdict must be taken as true, contrary evidence disregarded, and every reasonable inference tending to support the verdict indulged. State v. Moss, supra, 622 S.W.2d at 295, 296[2]; State v. Suschank, supra, 595 S.W.2d at 297[3].

Applying these principles, we hold the evidence sufficient to support the verdict of guilty on Count I. Abbott admitted he had lived in be same neighborhood since his birth. Dr. Smith had lived at her address over 15 years. The jury could reasonably infer that Abbott knew where Dr. Smith lived. Abbott was within three blocks of Dr. Smith's home at about 11:45 p.m., July 10, 1980, and his whereabouts for the next hour and five minutes are unaccounted for (except by his own testimony, which the jury was not required to believe, and obviously rejected). Abbott had Dr. Smith's Cutlass at 12:50 a.m., July 11, a few hours after McAtee last saw it in Dr. Smith's carport. Analysis of bloodstains on Dr. Smith's bathroom carpet and on the newspaper in the Cutlass' trunk showed not only that the blood was the same type as Dr. Smith's (type A), but also that the combination of other factors in that blood would occur in less than one per cent of the population. A fiber on the newspaper was consistent with the fiber in Dr. Smith's bathroom carpet. The fact that Dr. Smith was last seen July 10, 1980, the fact that the last entry in her diary bore that date, and the absence of evidence that her vehicle was reported stolen even though Abbott had it from 12:50 a.m., July 11, 1980, until his arrest, support an inference that Dr. Smith was not alive after July 10, 1980, even though her remains were not found for more than seven months. The type A blood on one of the tennis shoes in the Cutlass' trunk, the testimony that the bloodstain had been on the shoe no more than a month, and witness Ramey's testimony that the shoes resembled those worn by Abbott July 14, 1980, when he was driving the Cutlass, is additional circumstantial evidence linking Abbott to the murder. Evidence that Dr. Smith died from Stab wounds, witness Ramey's testimony that Abbott carried a sheath knife in June, 1980, that the sheath found in the Cutlass' trunk was the same type Abbott had worn, and the fact that only the sheath -not the knife -- was found in the Cutlass July 16, 1980, is further circumstantial evidence trying Abbott to the murder. The fact that Abbott drove the Cutlass until his arrest supports an inference that he knew it would not be reported stolen because he knew its owner, Dr. Smith, was dead. The fact that Abbott has type B blood and is a secretor, coupled with the fact that the seminal material on the socks in Dr. Smith's bedroom was from a type B secretor, also connects Abbott with the murder, particularly when one considers that the seminla material could have come from only six to seven per cent of the population.

As to motive, the State argued to the jury that Dr. Smith was killed after the sexual activity that resulted in the seminal material on the socks. The jury could reasonably infer that a 73-year-old spinster would not willingly engage in such activity with an intruder, and that she was killed to prevent identification of the perpetrator, and to facilitate theft of the automobile.

The evidence was sufficient to submit Count I to the jury, and the trial court did not err in doing so. Abbott's point 4 is denied.

As to Count II, theft of the Cutlass, Abbott asserts that because he openly drove it during the time he had it, there was insufficient evidence to prove he intended to deprive Dr. Smith of it permanently. Abbott relies on State v. Gaede, 186 S.W. 1009 (Mo. 1916), and State v. Patterson, 149 S.W.2d 332 (Mo. 1941). In those cases, the items allegedly stolen (three pigs in Gaede, and a boat, oars and fishing nets in Patterson) were openly displayed by the respective defendants. Convictions in both cases were reversed.

We find neither case applicable. The conviction in Gaede was reversed because of insufficient evidence that the defendant knew the pigs belonged to another. The conviction in Patterson was reversed because of insufficient evidence ...


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