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State v. Mcpike

Court of Appeals of Missouri, Eastern District, Fourth Division

March 21, 2017

STATE OF MISSOURI, Respondent,
v.
JOSHUA A. McPIKE, Appellant.

         Appeal from the Circuit Court of Pike County 14PI-CR00309-01 Honorable James D. Beck

          Gary M. Gaertner, Jr. Judge.

         Introduction

         Joshua 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.

         Background

         The 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.

         Unbeknownst 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.

         Appellant 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[1] 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.

         At 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 furniture."

         In his 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."

         At the 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.

         The jury found Appellant guilty of attempted misdemeanor stealing, and the trial court sentenced him to serve ten days in jail. This appeal follows.

         Discussion

         In his 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 ...


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