From the Circuit Court of the City of St. Louis; Criminal Appeal; Judge William M. Nicholls.
Motion for Rehearing Overruled, Transfer Denied August 1, 1983.
Before Crandall, P.j., Reinhard, Crist, JJ.
The opinion of the court was delivered by: Reinhard
Defendant was convicted by a jury of the offense of burglary in the second degree, a violation of § 569.170, RSMo. 1978, and was sentenced to a three year term of imprisonment with the Missouri Department of Corrections. We affirm.
Defendant does not challenge the sufficiency of the evidence. Viewing the evidence most favorably to the state, it was established that at approximately 1:30 p.m. on July 10, 1981, two police officers responded to a report of burglary in process at 5229 Terry Avenue in the City of St. Louis. In the alley behind the house at that address, the officers saw three men, one of them identified as defendant, attempting to lift a heavy piece of machinery, later identified as a grinding machine, into the trunk of an automobile. A short distance away, a garage door stood open. There was also a gas tank, heater and pliers laying outside the garage. The garage was filled with equipment.
There were fresh pry marks on the garage door. In addition, there were fresh drag marks leading from inside the garage to where the three men were standing with the equipment. It had rained that morning, but the machines and equipment outside were dry.
The owner of the garage identified the equipment outside the garage as his and testified he had not given permission to anyone to take it. He stated that he had last seen the garage two days before July 10th and it was locked. He had last seen the equipment inside the garage.
Defendant testified that the equipment had been standing out in the alley for at least three or four days previously and he thought it was abandoned property. Defendant testified he and his friends were taking it to the junkyard to sell as scrap.
Defendant contends the trial court erred in giving Instruction No. 5 modeled after MAI-CR2d 23.52 modified by MAI-CR2d 2.12. The relevant portion of Instruction No. 5, the state's verdict director, provided as follows:
If you find and believe from the evidence beyond a reasonable doubt:
First, that on July 10, 1981, in the City
of St. Louis, State of Missouri, the defendant or others knowingly entered unlawfully in a building located at 5229 Terry and owned by Calvin T. Lauda, and
Second, that defendant or others did so
for the purpose of committing the crime of ...