State v. Livingston, 72648

• Decision Date: 18 December 1990
• Docket Number: No. 72648,72648
• Citation: 801 S.W.2d 344
• Parties: STATE of Missouri, Respondent, v. David A. LIVINGSTON, Appellant.
• Court: Missouri Supreme Court

Page 344

801 S.W.2d 344

STATE of Missouri, Respondent, v. David A. LIVINGSTON, Appellant.

No. 72648.

Supreme Court of Missouri,

En Banc.

Dec. 18, 1990.

Rehearing Denied Jan. 9, 1991.

Elizabeth Bock, Asst. Public Defender, Springfield, for appellant.

William L. Webster, Atty. Gen., John P. Pollard, Asst. Atty. Gen., Jefferson City, for respondent.

HOLSTEIN, Judge.

Defendant, David A. Livingston, was found guilty by a jury of robbery in the first degree, § 569.020, ¹ and armed criminal action, § 571.015. He was sentenced to ten years imprisonment for the robbery and three years for armed criminal action, the sentences to be served concurrently. Defendant appeals. Affirmed.

As his first allegation of error, defendant contends there was insufficient evidence to support a guilty verdict for either offense. In reviewing a challenge to the sufficiency of the evidence, the state's evidence is considered in the light most favorable to the state, together with all reasonable inferences therefrom, and the court disregards all contrary evidence. State v. Guinan, 665 S.W.2d 325, 327 (Mo. banc 1984). This Court is not to substitute its judgment for that of the jury; rather, it determines whether there was substantial evidence to support the jury's verdict. State v. McGowan, 621 S.W.2d 557, 558 (Mo.App.1981).

On June 21, 1988, John Van Bibber was working as night manager at Bair's Grocery, located on the southwest corner of the intersection of Campbell Street, also known as U.S. 160, and Plainview Road in Springfield, Greene County. He arrived at the store before 11:00 p.m. He and another employee prepared the cash register for the night shift by adding the following currency: five ten-dollar bills, ten five-dollar bills, and twenty-five one-dollar bills. Another twenty-five one-dollar bills were placed below the register. They also placed rolls of coins in the register. Van Bibber testified he believed the coins consisted of three rolls of quarters, three rolls of dimes, three rolls of nickels and three rolls of pennies.

Later in the evening, a customer entered and purchased a pack of cigarettes, handing Van Bibber two one-dollar bills. Van Bibber gave the customer coins in change.

Shortly after midnight, a young man came in, vaulted over the counter and shouted, "Give me the f______ money or I'll kill you." The man had a gun in his hand, which Van Bibber believed was either a .32 or a .22 caliber. The man wore a manufactured ski mask with openings for eyes, nose and mouth. He was wearing a blue jacket bearing either a Standard or Amoco emblem. He had on faded blue pants, dirty dark tennis shoes, and brown knit work gloves.

The robber ordered Van Bibber to put all the money from the cash register into a paper grocery bag from the store. The bag was taken from a stack of grocery bags, some of which fell to the floor, where one was stepped on by the robber. All the money from the cash register was placed in the sack except one roll of dimes.

The robber ordered Van Bibber to the back of the store. Van Bibber ran out of the store to a nearby convenience store and called the police.

Christopher Cochran was driving south on U.S. 160 past Bair's store shortly after midnight, when he saw a person exit the store and run south. The person was hunched over and appeared to be carrying something. He saw the person duck behind some shrubs. Cochran also saw a dark colored Monte Carlo or Cutlass parked on the highway near the store. Neither the headlights nor the hazard lights were on. He saw a person with long dark hair, who appeared to be shirtless, in the driver's seat. The person in the car was looking north toward Bair's store. Cochran drove past the parked vehicle, turned around a short distance to the south, and returned north to the intersection of Plainview Road. He turned around again and followed the Monte Carlo, which by that time had pulled out onto the highway, heading south. After a few minutes, Cochran was close enough to see two people in the car and to see the Oklahoma license plate bearing the number ZSS-222. Cochran notified the sheriff.

Officer David Sater received a dispatch about the robbery, while on patrol, along with the description of the Monte Carlo. At about 1:49 a.m. Sater noticed the car at a truck stop, occupied by three individuals. The license plate was Oklahoma ZSS-222. Sater followed the vehicle and stopped it. Officer Joe Nimmo arrived as a backup. The driver of the car, later identified as defendant's brother, exited and approached officer Sater. Officer Nimmo ordered the two occupants out of the car. One of the occupants was female and the other was defendant.

Nimmo found a loaded .357 Smith and Wesson magnum revolver and a paper bag containing fifty-three one-dollar bills, three rolls of quarters, three rolls of nickels and two rolls of pennies in the car. Two one-dollar bills were found in the front seat. Other items found in the car included: two handguns, one a .22 caliber and the other a .38 caliber, a pair of brown jersey gloves, four work shirts, including one with a "Standard" emblem on it, and some with holes cut out. Five ten-dollar bills and ten five-dollar bills were discovered when defendant was "patted down" by the officer.

Van Bibber testified that the amount of money taken from the store was between $189 and $209. At the time of defendant's arrest, a paper bag found in the car contained fifty-three one-dollar bills, three rolls of quarters, three rolls of nickels and two rolls of pennies. Defendant had the five ten-dollar bills and ten five-dollar bills that were found in his pocket. But for a single one-dollar bill, the money recovered from defendant was in exactly the same denominations and amounts taken from the store register.

The robber's clothing as detailed by Van Bibber was similar to that found in the Monte Carlo. Defendant's own testimony put him in the area of Bair's Store during the time of the robbery. Defendant also testified that his brother was driving the entire time the trio was in Springfield. Defendant's brother was described by officer Sater as being six feet, two inches tall, taller than the robber's height according to Van Bibber. Defendant's shoes matched the description of those worn by the robber. His brother was wearing cowboy boots. Finally, the paper bag the robber stepped on during the robbery was the same size and displayed the same words, figures and symbols as the bag found in the Monte Carlo containing the money.

At trial, defendant's version of the facts was identical to the testimony of Sharon Perry, the female arrested with defendant. Both testified that the three arrived in Springfield on the night in question at about 8:30 or 9:00 p.m. and began driving around, drinking beer and looking for some caves. They both testified that they stopped at several stores. Their last stop in Springfield was for Sharon to "go to the bathroom" on the side of the highway.

Defendant contends the trial court erred in failing to grant his motion for judgment of acquittal because the state failed to sustain the higher standard of legal proof required when relying on circumstantial evidence for both convictions.

Circumstantial evidence sufficient to support a conviction is ascertained by application of the test set forth in State v. Franco, 544 S.W.2d 533 (Mo. banc 1976), cert. denied, 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977). Where the conviction rests on circumstantial evidence, the facts and circumstances to establish guilt must be consistent with each other, consistent with the guilt of the defendant, and inconsistent with any reasonable theory of his innocence. In such cases, the evidence need not be absolutely conclusive of guilt, nor must the evidence demonstrate the impossibility of innocence. Id. at 534.

The evidence to prove defendant's guilt shows defendant, within two hours after the robbery, was found in an adjoining county in the Monte Carlo that was parked within two hundred yards of the robbery scene at the time of the occurrence. But for a single dollar bill, the currency in defendant's pocket and the paper bag in the seat he occupied in the Monte Carlo was identical in number and denomination to the currency taken in the robbery. The number of rolls of quarters and nickels in the bag was identical to the number of rolls of quarters and nickels taken in the robbery. The paper bag in defendant's possession displayed the same words, figures and symbols as the bag stepped on by the robber at the store. The robber wore dark, dirty tennis shoes; defendant was wearing blue tennis shoes when arrested.

From this evidence, the jury could reasonably find defendant had committed both offenses. These circumstances, taken together, are inconsistent with defendant's innocence and exclude any reasonable hypothesis of his innocence.

Defendant makes much of certain discrepancies in the evidence and testimony by Van Bibber. For instance, defendant notes that although Van Bibber described the robber as wearing a blue zipper jacket, none was found in the car or on the defendant. The same is said of the shirt with piping and faded twill pants the robber was wearing. At the scene of the arrest, both defendant and his brother were shirtless and wearing jeans. Defendant also states there was no gun found that fit the description by Van Bibber of a .32 caliber revolver. It should be noted that this witness stated the gun could have been either a .32 or a .22. There was a .22 found in the Monte Carlo, along with two other guns.

At the time of the robbery, Mr. Van Bibber was disabled, had a hearing loss and a heart condition, for which he was taking nitroglycerin and other medication regularly. He described himself as a "little short guy." Given the circumstances, discrepancies are not only reasonable, but expected. Jurors who view and hear testimony are able to weigh witness intangibles that escape in the cold text of a transcript. The...