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09/23/93 STATE MISSOURI v. JOSEPH W. PROBY

September 23, 1993

STATE OF MISSOURI, RESPONDENT
v.
JOSEPH W. PROBY, APPELLANT AND JOSEPH W. PROBY, APPELLANT V. STATE OF MISSOURI, RESPONDENT



APPEALS FROM THE CIRCUIT COURT OF PEMISCOT COUNTY. Honorable Fred W. Copeland, Trial Judge. Honorable Jerry C. Stillman, Post-Conviction Judge

Parrish, Shrum, Montgomery

The opinion of the court was delivered by: Parrish

Joseph W. Proby (defendant) was convicted, following a jury trial, of burglary in the second degree, § 569.170, *fn1 and stealing property of a value of at least $150, § 570.030.3(1). He was charged and sentenced as a prior and persistent offender. § 558.016, RSMo Supp. 1990. Following his sentencing and incarceration, defendant filed a pro se Rule 29.15 motion. Counsel was appointed and an amended motion filed. After an evidentiary hearing, the motion court filed written findings of fact and Conclusions of law and denied the motion. Defendant appeals from the judgment of conviction (No. 17581) and from the order denying the Rule 29.15 motion (No. 18426). The appeals were consolidated in accordance with Rule 29.15(l). This court affirms.

No. 17581

This court accepts as true the evidence that tends to prove defendant's guilt, together with all reasonable inferences that support the verdict of the jury, and disregards all evidence and inferences to the contrary. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993). In assessing the sufficiency of the evidence, the determination to be made is whether a reasonable juror might have found the defendant guilty beyond a reasonable doubt. Id.

Shortly after midnight the morning of January 6, 1991, two police officers received a report of a burglary at a package liquor store, the C & W Package Store, on Highway 412 in Hayti, Missouri. The police officers proceeded to that location in separate vehicles. They parked their vehicles a block away from the store and walked toward the store. Officer Sheckell approached the store from the east. Officer Summers approached the store from the south.

As Officer Sheckell stepped around a corner of a building adjacent to the liquor store, he saw a man who he later determined to be defendant throw an iron bar to the ground and run. Officer Sheckell called to defendant telling defendant that he was a police officer and to stop. Defendant continued running. Officer Sheckell ran after defendant. Two warning shots were fired. After defendant had run "somewhere around three hundred feet," defendant slipped -- it had been raining for some time -- and fell to the ground. Defendant was face down on the ground. Officer Sheckell "patted him down" finding a knife with a bent blade in defendant's right rear pocket.

The knife in defendant's pocket was open. It could not be closed because of the bent blade. Officer Sheckell described its condition, "It's bent. It appears that it has been used to pry something with."

After apprehending defendant, Officer Sheckell retrieved the iron bar that he had seen defendant throw to the ground. He found the liquor store's cash register about 50 feet from the store. "It was next to the bar that Mr. Proby threw down." Officer Sheckell described its condition, "The top portion of it is made of plastic and it was busted away from the lower portion which contains the cash drawer." Officer Sheckell was asked about his examination of the cash register. He testified:

Q. [By the Prosecuting Attorney] And what, if anything, did you note from your examination?

A. There was change in the register, as well as some cards that said C & W Package on the cards.

" little over $7.00 in change" was found in defendant's right front pocket after his arrest. "Just over $18.00" in change was found in the cash register and on the ground around it. Two unopened packages of Kool cigarettes were found on the ground next to the liquor store by a broken window. The packages of cigarettes "were wet, but were intact." There were wet footprints inside the building that appeared to match the tread on the shoes defendant was wearing.

Later the same morning, a neighbor to the liquor store found "a tan glasses case and a burgandy Crown Royal bag with a drawstring on it" -- items that had been kept in the liquor store beneath a counter. The items were found in the neighbor's yard "to the west of the crime scene" along the route where defendant ran when he was chased by Officer Sheckell.

The C & W Package Store is owned by Charles Jones and Wanda Jones. On the night of the robbery, Mr. Jones closed the store at 12:00 o'clock. Mr. Jones was acquainted with defendant. Defendant came by the store the night of the burglary "twice prior to closing," but did not come into the store. "He came by the window." (After 6:30 p.m. customers were not allowed inside the store, they were served through a service window.) The last time defendant came by was about 15 minutes before the store closed for the night. During the evening, defendant purchased " half-pint of gin, a cigarette lighter, a pack of Kools" at the store.

Mr. Jones was called back to his store because of the burglary "about an hour and a half" after he had closed. He was asked the following questions and gave the following answers regarding the condition of the store:

Q. And when you got there what did you find in regard to the condition of your package store?

A. The window just before the service window was broke, broke out. The door had been banged -- Somebody had tried to pries into the door. The cash register was missing; you could see that from the window. We were not allowed to go inside the building. The cop had secured the building and told us not to go in until they got through investigating.

Q. Okay. When you closed up your place of business there about midnight, was there any water on the floor in there?

A. No.

Q. And did you look in through that window after you got back, through the broken window?

A. Yes.

Q. Okay. And you could tell your cash ...


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