APPEAL FROM THE CIRCUIT COURT OF SALINE COUNTY. The Honorable Robert Hereford Ravenhill, Judge
Before Spinden, P.j.; Fenner and Hanna, JJ.
The opinion of the court was delivered by: Hanna
The defendant appeals from his conviction by a jury of one count of first degree burglary (§ 569.160, RSMo 1986) and two counts of receiving stolen property ( § 569.080, RSMo 1986). The case was tried May 11, 1992, in Saline County. The defendant was sentenced as a prior, persistent and class X offender to twenty years imprisonment on each of the three counts to run concurrently with each other.
The evidence viewed in the light most favorable to the state is as follows. On September 14, 1991, Mr. Mullins, police chief in Slater, Missouri, his wife, Mr. and Mrs. Smith and another couple had returned from dinner in Sedalia about 10:00 or 10:30 p.m. Mr. Smith saw the defendant walking down Main Street. He drove around the block and observed the defendant for a second time. The defendant was carrying a pair of boots as he crossed a vacant lot onto Parker Street. Smith drove down Parker and saw the defendant in a home owned by Bill and Margaret Baker. The boots that the defendant had been carrying were on the sidewalk leading up to the house.
Mr. Smith positioned his car so that they could see into the Bakers' home. Chief Mullins saw the defendant standing inside the house at the hallway door. When the defendant closed the door, a mirror reflected a light and "illuminated him real well." Mullins and Smith both said they saw the defendant holding a long gun before he disappeared into the west part of the house. Chief Mullins radioed for a backup patrol car. He then entered the house and found Margaret Baker inside. The defendant was no longer there.
Bill Baker had fallen asleep in his truck while listening to a baseball game and awoke when he heard someone tell his wife that a man was in the house. He noticed that his three guns were missing which he identified at trial as a Western Auto gun, an old ninety-seven Winchester and a model 12 Winchester pump. He kept these guns in the hall closet.
Chief Mullins believed that the defendant lived in a garage at 450 Locust and went to that location. When the defendant appeared, Mullins placed him under arrest. Mullins later returned to the defendant's address to search the garage. Ramona Carter, the owner's daughter, *fn1 lived in the house and consented to the search of the garage. She accompanied Chief Mullins to the garage and saw two guns propped up in the corner of the room. Mullins took the guns.
Two days later, Betty Reeves turned over the third gun, the ninety-seven Winchester, to Chief Mullins. She testified that the defendant had sold her the gun.
The Chief Deputy of Saline County testified that he was familiar with the market value of the guns and assessed a value of $225-$250 for the ninety-seven Winchester for which Ms. Reeves testified she had paid defendant $25. He valued the model 12 Winchester at $125-$150 and the Western Auto gun at $80-$85.
Defendant filed a Rule 29.15 motion on January 21, 1993, and the motion court overruled it as not timely filed. Notice of appeal from the convictions and denial of the Rule 29.15 motion was duly filed and consolidated on appeal.
The defendant first claims the trial court abused its discretion in failing to sever the two counts of receiving stolen property from the burglary first degree count. He claims he was prejudiced by the evidence of disposing of and retaining the property regarding the receiving charges as it related to the burglary charge. He argues this evidence would necessarily cause a jury to improperly infer that his entry of the Baker home was with the intent to steal.
Supreme Court Rule 23.05 governs the joinder of offenses in an indictment or information:
All offenses that are of the same or similar character or based on two or more acts that are part of the same transaction or on two or more acts or transactions that are connected or that constitute parts of a common scheme or plan may be charged in the same indictment or information in separate counts.
All of the offenses charged were of the same or similar character and were acts that constituted a common scheme or plan. Defendant complains the trial court abused its ...