STATE OF MISSOURI

, ) ) Respondent

, ) )

vs. ) No. SD35877 )
DALE E. CATER, JR.

, ) FILED: October 7, 2019 ) Appellant. )

APPEAL FR OM THE CIRCUIT COURT OF GREENE COUNTY

Honorable David C. Jones

, Judge

AFFIRMED

Having secured their garage the night before, a couple awoke to find signs

of forced entry

. They discovered a bike moved out of the garage, storage containers

rummaged through, likewise for the car ’s glovebox , and Appellant still in the car

. Caught by surprise, Appellant said something about being hired to clean the car,

then slugged the homeowner, who restrain ed Appellant until police arrived.

Because Appe llant did not testify at trial, it is unknown why h e had acted in

the nude

. 1 At any rate, jurors convicted him of burglary and related charges from

which he now appeals , raising two points

.
Point 1

– Intent to Steal

Appellant claims there was insufficient evidence that he intended to steal

, so he committed only trespass, not burglary

. We disagree. Larcenous intent could

1 His clothes and cell phone were found outside the smashed

- open garage door.

### 2 be proved c ircumstantially and infer red from the forced entry and chattel

disturbances summarized above. State v. Rieser , 569 S.W.3d 452, 454 (Mo.App.

2018) ; State v. All en , 508 S.W.3d 181, 186

- 87 (Mo.App. 2017). Point denied.

Point 2

– Closing Argument

Defense counsel argued in closing (as here ) that Appellant only trespassed

in the garage b ecause there was no proof that he intended to steal. In rebuttal, the

prosecutor responded that “ in the defendant’ s version where he ’ s only guilt y of a

trespass because he didn’ t intend to steal anything, he went inside the garage for

what? We haven ’ t really heard a reason. ” The defense objected and this colloquy

followed outside the jury’s hearing:

[DEFENSE COUNSEL] : Before we go any further, I thought we were getting really close to commenting on his right to not testify. I think things were said that would put the burden back

on him

– the hypothetical question

– the com ment that was made about why he was there, question mark. I think it puts the
burden on Mr. Cater, and so I would object for that reason and

ask for a mistrial.

THE COURT: I don’ t think we crossed that line. I agree that I can see how you would be concer ned it was heading that way.

I don’ t think [the prosecutor] was deliberately trying to cross the

line. I’ m going to deny your motion for mistrial.

But be careful on that line.

[PROSECUTOR] : I do understand.

Point 2 charges that the trial court abused its dis cretion in denying a

mistrial. Again we disagree. A s in State v. Cummings , 765 S.W.2d 366, 368

- 70

(Mo.App. 1989) , the prosecutor’s words here neither directly n or indirectly

refer red to Appellant’s trial silence , but posed a rhetorical question: If defense

counsel says his client wasn’t in the garage to steal, then why was he there , moving

a bike out of the garage, and rifling through storage containers and the car’s

glovebox?

P rosecutors have considerable leeway to rebut defense closing arguments,

even if the comment otherwise may have been improper

. State v. McFadden

, 391 S.W.3d 408, 422 (Mo. banc 2013). This comment was not otherwise improper

### 3 and the court did not abuse its discretion in ruling as it did. We deny Point 2 and

affirm t he judgment and convictions.

DANIEL E. SCOTT, P. J.

– OPINION AUTHOR

J EFFREY W. BATES

, C. J.

– CONCURS

MARY W. SHEFFIELD, J.

– CONCURS