case_cite">740 F.2d 14

Larry Donnell MOORE, Appellant,
v.
A.L. LOCKHART, Director, Arkansas Department of Corrections, Appellee.

No. 83-2638.

United States Court of Appeals,
Eighth Circuit.

Submitted June 13, 1984.
Decided Aug. 8, 1984.

Claibourne C. Crews, Little Rock, Ark., for appellant, Larry Donnell moore.

Steve Clark, Atty. Gen. by Theodore Holder, Asst. Atty. Gen., Little Rock, Ark., for appellee.

Before ROSS, McMILLIAN and FAGG, Circuit Judges.

PER CURIAM.

Larry Donnell Moore appeals from a final judgment of the district court1 dismissing his petition for habeas corpus. For reversal appellant argues that the district court erred in finding that sufficient evidence supported his burglary conviction and that certain prosecutorial remarks made during closing argument were not prejudicial.

In June 1980 police responded to a burglary alarm at a metal company. When the police entered the building, they found appellant sitting in a chair by a desk in the company office. The drawers of the desk had been emptied and the contents scattered on the floor. Following a jury trial, appellant was convicted of burglary. In an unpublished opinion, his conviction was affirmed.

Appellant argues that aside from evidence of an unlawful entry there was no evidence that he intended to commit theft of property. The district court correctly found that the evidence of the unlawful entry coupled with the evidence of the ransacked desk was sufficient to infer an intent to commit theft.

Appellant also argues that the prosecutor made prejudicial remarks during closing argument when he referred to criminal trespass, a lesser included offense on which the jury had been instructed, as a "misdemeanor offense." The district court correctly found that this reference did not prejudice the jury. Furthermore, as noted by the district court, the trial court gave a cautionary instruction that the jury was not to consider the range of punishment.

Accordingly, the judgment of the district court is affirmed.

The Honorable G. Thomas Eisele, Chief Judge of the District Court for the Eastern District of Arkansas

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