State v. Hill

• Decision Date: 16 June 1998
• Docket Number: No. WD,WD
• Citation: 970 S.W.2d 868
• Parties: STATE of Missouri, Respondent, v. Tyrone HILL, Appellant. 54102.
• Court: Missouri Court of Appeals

Page 868

970 S.W.2d 868

STATE of Missouri, Respondent, v. Tyrone HILL, Appellant.

No. WD 54102.

Missouri Court of Appeals,

Western District.

June 16, 1998.

Rosalynn Koch, Asst. Public Defender, Columbia, for Appellant.

Philip M. Koppe, Kansas City, for Respondent.

HANNA, Presiding Judge.

On November 14, 1996, the defendant, Tyrone Hill, was convicted after a jury trial in the circuit court of Jackson County of two counts of robbery in the first degree § 569.020, ¹ two counts of armed criminal action, § 571.015.1, possession of a short barreled shotgun, § 571.020.1(4), and tampering in the first degree, § 569.080.1. The defendant was sentenced to consecutive terms of 30 and 25 years imprisonment on each of the robbery convictions, and to terms of 10 years imprisonment for each of the armed criminal action convictions, and six and seven years respectively for possession of a short barreled shotgun and tampering in the first degree, the sentences to run concurrently with the other convictions.

On appeal, the defendant complains that his convictions for armed criminal action and possession of a short barreled shotgun violated his double jeopardy rights, that an erroneous jury instruction was given, and there was insufficient evidence to support his conviction for possession of a short barreled shotgun.

On May 16, 1996, the Dollar General Store at 6141 Blue Ridge Boulevard in Raytown, Missouri, was robbed. The defendant approached Joyce Nead, a cashier on duty, holding a paper bag, and told her to give him the money from the register. He pointed to something underneath his coat, which she believed to be a gun. She began to panic and could not open her register.

During this exchange, a customer, Judy George, walked up to the register with a $20 dollar bill in her hand. As she neared the register, she heard Ms. Nead tell the defendant, "I'm trying to get it open." The defendant grabbed Ms. George by the right shoulder, put a gun to her neck, and told Ms. Nead to hurry up or he would "blow her neck off." He also took Ms. George's $20.

Ms. Nead was unable to open her register, so she called her manager, John Miller. As Mr. Miller was approaching the front of the store, he saw the defendant holding the gun. The defendant pointed the gun at him, and told him to open the drawer or he would kill him. Miller tried to open the register but it had run out of "detail tape" which caused the register to automatically close. During this entire time, the defendant repeatedly made statements to, "Open up the register or I'll kill you" and, "Give me the money or I'll kill the customer." Mr. Miller went to the next register and pulled out the cash drawer. The defendant took approximately $130 dollars from the drawer and placed the money in his pocket.

Officer Gregory Smith, of the Raytown Police Department, was driving by the store when he received a radio dispatch that a robbery had just occurred at the store. Officer Smith pulled his vehicle up to the store just as a man, who matched the description of the robbery suspect and who was later identified as the defendant, was exiting the store.

When the defendant saw Smith's patrol car, he started to run. He went through a parking lot and then "cut through" a beauty shop. Smith decided not to follow him into the shop because he thought the defendant was armed. He radioed Officer Rick Strack and told him that the defendant had entered a fenced, wooded area. Strack apprehended the defendant there. The defendant was not wearing a shirt at the time of his arrest. He was searched and the police recovered a .20 gauge shotgun shell and $149 dollars. The money was bundled exactly the way that the Dollar General Store packaged its cash. Police Chief Christopher Turnbow recovered a paper sack and a crumpled white T-shirt next to a shed in the yard from which the defendant had run. Officer Kevin Sheets found a green pullover shirt which was wrapped around a sawed-off shotgun in a bush near the scene of the robbery. The barrel of the gun measured slightly over 15 3/4 inches.

Meanwhile, in a nearby parking lot, police also found an automobile with its right rear window broken out. This car was later determined to be stolen. Inside the car, the police found a blood-stained paper towel, a screwdriver and a cassette with rap music. Pat Sanchez, the owner of the vehicle said the car had been stolen earlier that day. She stated that the towel, screwdriver, and tape were not her's. The latent fingerprints taken from the trunk of the car matched the defendant's.

The defendant told inconsistent stories. At trial, he testified that he was going to Pizza Hut and took a shortcut through the parking lot which took him past the automobile. He said that is where he found the shotgun shell and that he had picked it up for good luck. In addition, he testified that he patted the trunk lid of the car to make sure it didn't have an alarm and then decided to look around in it and find "something else [to steal]." He said that as he was getting out of the vehicle, the police arrived, so he attempted to run, but stopped when the police officer drew his gun. The defendant testified that the $149 found in his pocket was his to take care of some unpaid traffic tickets. ²

The defendant argues that the crimes of armed criminal action and possession of a short barreled shotgun are the same and thus, violate the Double Jeopardy Clause. He bases his argument on the contention that "use" of a short barreled shotgun in the robbery is the same conduct as contemplated by the "use" of a weapon in the armed criminal action counts.

The Fifth Amendment to the United States Constitution provides that " ... nor shall any person be subject for the same offense to be twice put in jeopardy of life and limb." U.S. CONST. amend V. This provision, through the Fourteenth Amendment, prohibits the state from imposing multiple punishments for the same offense. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969). "[Double Jeopardy] forbids the state from splitting a single crime into separate parts and then prosecuting the offense in piece-meal." State v. Morrow, 888 S.W.2d 387, 390 (Mo.App.1994). On the other hand, the Double Jeopardy Clause does not protect a defendant from being punished for more than one offense which arises from the same set of facts when, under the law, he has committed separate crimes. State v. Gordon, 948 S.W.2d 673, 675 (Mo.App.1997); Morrow, 888 S.W.2d at 390.

The question is whether the charges are identical and violate double jeopardy, or whether each offense necessitates proof of an essential element not required by the other. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); Gordon, 948 S.W.2d at 675; State v. Wilson, 719 S.W.2d 28, 34 (Mo.App.1986). See also State v. Pollock, 738 S.W.2d 531, 533 (Mo.App.1987). In addition, Missouri law has codified the limitations of convictions on multiple offenses if "one offense is included in the other, as defined in section 556.046." ³ § 556.041(1). See also Pollock, 738 S.W.2d at 532-33 (citing Blockburger, 284 U.S. at 304, 52 S.Ct. at 182).

This court addressed a similar issue in State v. Pollock, where the defendant argued that his convictions for the unlawful use of a weapon and unlawful possession of a concealable firearm violated double jeopardy. 738 S.W.2d at 533. This court determined that the state was required to find proof of distinctive elements, and that the evidence for both of the convictions overlapped one another but that they did not violate the Double Jeopardy Clause. Id.

Additionally, this court held in State v. McKee, that the defendant's conviction for both unlawful use of a weapon and armed criminal action did not violate double jeopardy. 826 S.W.2d 26, 30 (Mo.App.1992). In that case, McKee started shooting at Christopher Harris with his shotgun and wounded Harris. He was charged with assault in the second degree, armed criminal action and unlawful use of a weapon. The court held that the armed criminal action in this case was dependant upon the assault charge, not the unlawful use of a weapon count. Id. at 29. Additionally, the court reasoned that the unlawful use of a weapon offense was not a lesser included offense of armed criminal action because both crimes require proof of different elements. Id.

The defendant relies upon State v. King, 748 S.W.2d 47, 50 (Mo.App.1988). King kidnapped the victim at knife-point and forced her into a car. He was convicted of kidnapping, armed criminal action and unlawful use of a weapon. The court concluded that "the essential element of 'use' of a dangerous instrument to commit the felony of kidnapping was established solely by the proof that the defendant exhibited the dangerous instrument to the victim in a threatening manner." Id. The court reasoned that the exhibition of the knife was the same conduct upon which the armed criminal action was charged and reversed the conviction for the unlawful use of a weapon. Id.

The defendant argues that he was convicted of three crimes arising from the same conduct. It is apparent, however, that the convictions were not based on the same acts or conduct. The defendant's conviction for the possession of a short barreled shotgun was based on his possession, not the use of the shotgun. The two counts of armed criminal action were based on the use of the shotgun to rob Ms. George and Mr. Miller. The crime of possession of the weapon was completed even before the robberies began. All three crimes were based upon separate and distinct acts, even though the offenses were committed at essentially the same time and at the same location.

The Fifth Amendment prohibition against double jeopardy protects a defendant from multiple punishments for the same offense, Hagan v. State, 836 S.W.2d 459, 460 (Mo. banc 1992), however, it does not protect the defendant from punishment for more than one...