Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of Pike County 14PI-CR00309-01
Honorable James D. Beck
M. Gaertner, Jr. Judge.
A. McPike (Appellant) appeals his jury conviction for
misdemeanor attempted stealing. Appellant challenges the
trial court's denial of Appellant's proffered verdict
directors that included a claim of right defense. We reverse
and remand for a new trial.
evidence adduced at trial was the following. Appellant was
grocery shopping with Alicia Houston (Houston) at Walmart on
the morning of Wednesday, June 11, 2014. After leaving
Walmart, Appellant and Houston drove by Howard's
Furniture. They noticed some furniture set out behind the
store, including an old mattress, boxes containing a bunk
bed, and a book shelf covered in protective shrink wrap.
Houston testified that the items were next to a dumpster.
to Appellant, Greg Wright (Wright), the owner of Howard's
Furniture, had placed the boxes and shelf in the loading area
behind the store a few minutes earlier and then drove around
to the front to unlock the rear garage door from the inside.
When Wright opened the garage door, he saw Appellant and
Houston loading the furniture into the back of
Appellant's vehicle. Wright told Appellant and Houston
that the items were not junk and threatened to call the
police. Appellant and Houston apologized and unloaded the
items from the vehicle. Houston testified that they helped
bring the items into the warehouse; Wright testified that
they did not. Wright further testified that the furniture was
likely not next to the dumpster because "[u]sually the
dumpster would be rolled out right before closing time."
After Appellant and Houston left, Wright called the police.
Officer James Herman responded and interviewed Wright.
and Houston later saw a police car outside Howard's
Furniture and drove immediately to the Bowling Green Police
Department. After interviewing Wright, Officer Herman left
Howard's Furniture and went to the police department
where he interviewed Appellant and Houston. Both Appellant
and Houston waived their Miranda rights and made
recorded and written statements. The State charged Appellant
with the class C felony of stealing, or in the alternative,
the class D felony of attempted stealing.
trial, the State called Wright and Officer Herman as
witnesses. Wright testified that "when people buy new
furniture, sometimes [Howard's Furniture] will haul the
old furniture away, " and that "the old furniture
is placed out in this loading area." Wright further
testified that "often this old furniture was gone before
the trash men arrives and haul it away." He also
testified that the delivery crews sometimes place used
furniture behind the store "against his wishes." In
his cross-examination, Officer Herman testified that his
police photos, which the trial court admitted as evidence,
showed a used "mattress at the bay door" on the day
in question. The State also introduced Appellant's
recorded statement made to Officer Herman in which Appellant
stated that he "had picked up [used] box springs
[outside Howard's Furniture] before" and that he
"had seen people there before picking up ... old
case-in-chief, Appellant called Houston who testified
regarding the furniture that she "believe[d] it to be
junk" and that Howard's Furniture "was
discarding it." Appellant also admitted Houston's
written statement reflecting the furniture was "where
they sit junk out."
close of evidence, Appellant submitted alternate verdict
directors that included a paragraph instructing the jury on a
claim of right defense. In addition to the elements of
stealing or attempted stealing, these verdict directors
required the jury to find that Appellant "did not
honestly believe that he had a right to take such property,
" in order to find him guilty. The trial court refused
Appellant's proposed verdict directors.
jury found Appellant guilty of attempted misdemeanor
stealing, and the trial court sentenced him to serve ten days
in jail. This appeal follows.
sole point on appeal, Appellant argues the trial court erred
in refusing to give his verdict directors with a claim of
right defense because there was sufficient objective ...