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June 28, 1983


From the Circuit Court of the City of St. Louis; Criminal Appeal; Judge Charles Kitchen.

Motion for Rehearing Overruled, Transfer Denied August 29, 1983. Application Denied November 22, 1983.

Before Snyder, P.j., Dowd, Gaertner, JJ.

The opinion of the court was delivered by: Snyder

Appellant was found guilty by a jury, convicted of burglary in the second degree, § 569.170 RSMo. 1978, and sentenced to fifteen years imprisonment as a persistent offender. Section 558.016 RSMo 1978. The judgment is affirmed.

Because several of appellant's fifteen points relied on deal with the same subject matter, they will be consolidated and the number reduced to seven. 1) Appellant's first six points relied on are in substance a contention that the search of a trash bag was unconstitutional and therefore the trial court erred in not suppressing the identification number of a stereo which was in the trash bag, the identity of the owner of a driver's license number which was found on the stereo, and the identity of the victim of the burglary. 2) Appellant's points seven, eight and fifteen contest the sufficiency of the evidence. 3) The ninth point asserts the trial court erred in instructing the jury on the theory of aiding and abetting when he was charged only as an active participant. 4) Appellant's tenth point charges trial court error in failing to grant a new trial because one of the prosecution's witnesses gave surprise testimony on cross-examination. 5) The eleventh point asserts the trial court erred in admitting evidence of the name of the holder of the driver's license number found on a stolen item because evidence of the owner's name was inadmissible hearsay. 6) Appellant's twelfth point charges trial court error in admitting into evidence a pair of gloves carried by appellant's companion because evidence of the gloves was irrelevant. 7) The thirteenth and fourteenth points accused the trial court of error in admitting the testimony of a security guard concerning whether other burglaries had occurred in the area.

At about 8:30 p.m. on November 6, 1981 a private security guard at the American Red Cross Building on Lindell Boulevard in St. Louis received a telephone call that there were people at the side of an apartment building next to the Red Cross parking lot, people who were carrying merchandise or packages and who did not live in the apartment building. The caller thought that an apartment might have been burglarized. The guard received the call through what he called "distribution" as he could not receive direct calls.

The security guard looked out of his guard's shack and saw appellant and one Cleveland Owens walking along the side of the apartment building. When a fire engine passed with its siren sounding, the two men put down the items they were carrying and flattened themselves against the wall of the building. After the fire engine had passed, the two men picked up the items and resumed walking toward an alley.

The security guard then communicated with police through "distribution" because he was aware of other burglaries in the area and because of the activities of the two men. The guard walked out of the shack to investigate.

When the guard called out to the two men, only Owens stopped. Appellant continued walking until he was behind a truck and thus out of the guard's line of vision. The guard then drew his revolver and requested appellant to come back to a place where the guard could see him.

Owens was carrying a television set. Appellant was carrying a light brown, plastic trash bag. One could see through the plastic bag and observe that it contained a stereo and one speaker.

Appellant did not say anything to the guard, but appellant's companion first stated that the items were his and that he lived in the apartment building. At this point the police arrived. Owens then told the police that he was going to pawn the items for a friend to whom the items belonged. When the police noticed an identification number on the television and asked Ownes if the stereo had a number on it, Owens said he did not know because he had bought the items a month ago from a fellow on the street.

The police then opened the trash bag. The stereo had an identification number which was identical to the number on the television set.

Although no burglaries had been reported recently, the police took appellant and Owens to the police station. There the police traced the identification numbers on the television set and the stereo to the driver's license of the wife of Neil Andre, who testified that he had etched the numbers onto the items, but that he had later sold the items to Ponchita Argieard.

An investigation of Ms. Argieard's apartment revealed that it had been burglarized. Entry had been gained by pushing in a window air conditioner. The air conditioner was so high off the ground that one person would have had to stand on the shoulders of another in order to reach it. The burglary occurred between 3:30 p.m. and 11:00 p.m. on November 6, because Ms. Argieard had left her apartment around 3:30 and did not return until 11 o'clock. Although Ms. Argieard's apartment was not in the building next to which appellant and Owens were apprehended, it was in a building which was only 125 feet away.

Appellant's first contention is that the search of the trash bag which revealed the identification number of the stereo violated appellant's constitutional right to be free from unreasonable searches and ...

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