Aftеr a jury trial for stealing pursuant to Section 570.030, 1 appellant Jeffrey Martin was sentenced to a fifteen-year term of imprisonment as a prior and persistent offender. On appeal, Martin raises two points of error contesting sufficiency of evidence and a single point challenging the admission of rebuttal evidence. Martin’s claimed errors are without merit. Affirmed. Rule 84.16(b).
I. Facts
On February 5, 2003, Jet Loyd left his maroon Chevrolet Blazer with the engine running in the parking lot at the Lakeside Village Apartments in Platte County. He ran back into his home to retrieve his forgotten lunch. Upon returning to the parking lots minutes later, the Blazer was gone. Loyd immediately reported the theft to the police.
Two days later, Kansas City Police Officer Mitchell Atwood’s attention was drawn to a snow covered Blazer in the Westport Sunfresh parking lot. The officer suspected thе car was abandoned, and after calling in the plates, learned that the car was stolen. The officer opened the unlocked door of the Blazer and, in processing the vehicle, lifted a fingerprint off the rearview mirror. When the Blazer was returned to its owner, Loyd reрorted the theft of a gun, knife, and a rosary from the vehicle.
On February 11, 2003, police found Martin hiding in the attic of a home in the northeast section of Kansas City. Martin was arrested on another offense and brought in for questioning. During an interview with Detective Teddy Taylor, Martin confessed to stealing Loyd’s Blazer.
In his statement, Martin claimed that he was “on the run” having driven from Kansas City to Des Moines, before turning around and immediately returning to Kansas City around 6:30 am on the morning of February 5, 2003. He stated that he jumped into the running vehicle and drove off in the “stolen Blazer.” He drove the vehicle to Hy-Vee to buy hygiene products. He then drove to the house of Ker-ensa Conaway, a woman he had met two years earlier. He was only at the Cona-way home about ten minutes before he drove to Westport and parked the Blazer in the Sunfresh parking lot. He “ransacked” thе vehicle, finding a Glock .40 caliber pistol under the seat. He took the gun, along with a knife and a rosary he found in the car and walked back to the northeast area of town.
II. PROCEDURAL POSTURE
Martin was charged with stealing the Blazer pursuant to Section 570.030. At trial, Martin’s redacted statement was introduced into evidence over defense objections. The defense’s only witness was Officer Atwood. The State then called Ms. Conaway as a rebuttal witness. The defense objected to Conaway’s testimony as outside the scope of rebuttal. The State claimed that Conaway’s testimony would rebut the negative inference that the State could not connect Martin to the vehicle injected into the case by Atwood’s testimony. The court overruled the defense objection and Conaway testified that Martin had come to her home in a “cherry red SUV ... maybe an Explorer.” She also testified that Martin had a titanium gray handgun.
The jury returned a verdict of guilty. Martin was sentenced as a prior and persistent offender to fifteen years in prison.
Martin raises three points on appeal. In his first two points, Martin claims the court erred in denying his motion for acquittal and accepting the verdict of the jury in that the evidence was insufficient to support the verdict. Martin claims in his final point that the trial court erred in admitting Conaway’s rebuttal testimony.
A. Sufficiency of Evidence — Intent to Deprive Permanently
In reviewing a challenge to the sufficiency of evidence, this court’s role is to “determine whether enough evidence was produced at trial that a reasonable person could conclude that the accused was guilty.”
State v. Vineyard,
In his first point on appeal, Martin contends that the evidence was insufficient for the jury to conclude that Martin intended to deprive Jet Loyd of the Blazer permanently. Martin had the car a short while before abandoning the vehicle. He argues that the only reasonable inference the jury could draw from the evidence was that Martin only intended a temporary deprivation.
To return a verdict for stealing under Section 570.030, the jury must find beyond a reasonable doubt that the defendant “appropriate[d] the property or services of another with the purpose to deprive him or her thereof, either without his or her consent or by means of deceit or coercion.” In this case, the jury was provided with verdict director, Instruction No. 7, that required a finding that Martin “retained possession of a maroon Chevrolet Blazer ... for the purpose of withholding it from the owner permanently.”
Intent can be inferred from circumstantial evidence as “[djirect proof of the required mental state is seldom аvailable.”
State v. Brown,
In this case, Martin’s behavior demonstrates his intention to deprive Loyd of his property permanently. He took the Blazer without Loyd’s permission. He “ransacked” the vehicle, taking a gun, knife, and rosary from the Blazer. He then abandoned the vehicle in another county, leaving the Blazer unlocked in a parking lot characterized by frequent auto thefts. Martin did not attempt to return the vehicle to Loyd or even bother to presеrve Loyd’s property by locking the Blazer’s doors when he abandoned the vehicle.
Additionally, Martin’s own statements are consistent with his intent to deprive Loyd of his vehicle permanently. In his statement, Martin states that he “jumped into that Blazer that was running” and that he “took that stolen Blazer and dropped it off in Westport in the grocery store parking lot.” He also stated that “ransacked” the vehicle and “took the gun, the knife, a rosary.” Both Martin’s actions and statements provide sufficient circumstantial evidence from which the jury could conclude that Martin intended a permanent deprivation.
Martin points to the short amount of time he used the car before abandoning it as evidence of his lack of intent to deprive Loyd of the Blazer permanently. Martin seems to point to a temporal divide between an intent to temporarily deprive an owner of his property and an intent to deprive permanently. However, this court
A reasonable juror could infer from Martin’s actions and statements that he intended to deprive Loyd of his vehicle permanently. The trial court did not err in overruling Martin’s motion for judgment of acquittal and in accepting the jury’s verdict of guilty of stealing.
B. Sufficiency of evidence— Unlawfully Retain
In his second point on appeal, Martin alleges an insufficiеncy of evidence from which to conclude that Martin “retained” the Blazer. Martin argues that the term “retain” pertains to embezzlement or fraudulent recovery only. Martin argues that when an act constituting a crime is specified in the charge, the State must prove the act.
Thе Missouri Approved Instruction verdict director for stealing, MAI-CR 3d 324.02.1, offers a number of different terms synonymous with stealing from which the State can choose. These terms include “took,” “obtained,” “used,” “retained,” “concealed,” or “transferred.” MAI-CR 3d 324.02.1. Martin states that “[t]he State could have instructed the jury that Appellant ‘took’ or ‘obtained’ or ‘used’ Loyd’s Blazer and the evidence would have been sufficient.” (Emphasis added.) Thus, Martin does not challenge the sufficiency of the evidence to support the charge, but, rather, he challenges the State’s choice of the term “retained” in the jury instruction.
Despite Martin’s characterization of trial error as an insufficiency of evidence, the real error to which Martin points is indeed instructional error. The sole error raised is the choice of the wrong term in the jury instruction.
Instructional error must be raised before the trial judge to be propеrly preserved for appeal. “In order to preserve claims of instructional error for review, counsel is required to make specific objections to the instruction at trial and again raise the error in the motion for new trial.”
Hatch v. V.P. Fair Found., Inc.,
Martin did not object to the wording of the verdiсt director and did not bring the error of which he now complains to the trial court’s attention. Nor did Martin raise the instructional error in his motion for a new trial. Therefore, Martin’s second point is not preserved for appellate review and is denied.
C. Scope of Rebuttal testimony
Martin challenges the admission оf Kerensa Conaways’s testimony as the State’s rebuttal witness. Martin claims that Conaway’s testimony was direct evidence of Martin’s guilt and should not have been admitted as rebuttal. Moreover, her testimony was improper rebuttal in that she was an unendorsed State’s witness who did not rebut any evidenсe presented by the defense.
“The determination of the scope of rebuttal is within the trial court’s discretion and, absent an abuse of such discretion, the trial court’s decision will not be reversed.”
State v. Simmons,
944 S.W.2d
Rebuttal evidence is proрer where it directly or indirectly explains, counteracts, repels, or disproves a defendant’s evidence. Hamilton,
Here, the defense’s sole witness was Officer Atwood, who testified to finding the Blazer and lifting a fingerprint from the rear view mirror. The defense rested аnd the State called Kerensa Conaway in rebuttal. When Martin objected to Cona-way’s testimony as outside the scope of rebuttal evidence, the State replied that the purpose of Conaway’s testimony was to link Martin to the car and negate the inference raised by Martin. The State argued that the negative inference drawn from Atwood taking an unidentified print from the Blazer’s rear view mirror was that Martin could not be linked to the car as Atwood “did not find the defendant’s print.” Martin conceded that this was a reasonable inference but “that was not [his] evidence.”
This court need not just determine whether Conaway’s testimony was within the scope of the defense’s evidence. In order for this court to reverse the trial court, an appellant must demonstrate that he was prejudiced by the admission of rebuttal testimony and that prejudice deprived him of a fair trial.
Black,
In
State v. Simmons,
the State presented rebuttal evidence from a police detective who testified that the defendant had not said he was sorry in order to negate the inference of remorse raised by the defendant crying during his confession.
Here, although Martin vigorously argues the trial court’s error in admitting Cona-way’s testimony on rebuttal, his argument is devoid of any demonstration that Cona-way’s testimony was so prejudicial as to
In the balance of his argument, Martin makes several allegations of discovery violations that are not raised in his point relied on. This court will “only consider arguments raised in the points relied on and [will] not consider arguments raised in the argument portion of the brief which are not encompassed by the points relied on.”
State v. Daggett,
Martin fails to demonstrate any outcome-determinative prejudice arising from the trial court’s admission of Conaway’s rebuttal evidence. Therefore, this court does not find any abuse of discretion by the trial court in admitting the testimony. Martin’s final point on appeal is denied.
The judgment of the trial court is affirmed.
All concur.
Notes
. All statutory references are to RSMo (2000).