King v. State, WD

• Citation: 839 S.W.2d 709
• Decision Date: 06 October 1992
• Docket Number: No. WD,WD
• Court: Court of Appeal of Missouri (US)
• Parties: Dorzel E. KING, Sr., Appellant, v. STATE of Missouri, Respondent. 45498.

Page 709

839 S.W.2d 709

Dorzel E. KING, Sr., Appellant, v. STATE of Missouri, Respondent.

No. WD 45498.

Missouri Court of Appeals,

Western District.

Oct. 6, 1992.

Donald L. Williams, Kansas City, for appellant.

William L. Webster, Atty. Gen., Joseph P. Murray, Asst. Atty. Gen., Jefferson City, for respondent.

Before KENNEDY, P.J., and SPINDEN and SMART, JJ.

SMART, Judge.

This case presents the primary issue of whether a person driving through this state, who is charged with carrying concealed weapons, is entitled to the "peaceful traveler's exemption" contained in § 571.030, RSMo Supp.1992, when he is transporting an abundance of weapons, ammunition, and other items suggesting involvement in criminal activity. Dorzel King appeals from a conviction for unlawful use of a weapon in violation of § 571.030, for which he received a five year prison sentence.

Judgment is affirmed.

Defendant King, a resident of Kansas, was driving on Interstate 35 in Clay County, Missouri with two male passengers when they were pulled over for an improper lane change by officers who were on patrol for the Clay County Sheriff's Department on October 16, 1990. As defendant's car pulled off the road, the three men were observed by the officers to be bending over and moving around as if they were handling something underneath their seats. When asked to produce his driver's license, King produced a Kansas driver's license which, upon computer check, was found to have been suspended.

The officers placed King under arrest for driving with a suspended driver's license and moved him to the patrol car. When one of the officers went back to the car, he observed a clear plastic bag with some brown powder in it which he suspected was an illegal drug. The officers summoned a drug dog team to the scene. The drug dog did not indicate the presence of narcotics in the vehicle, but the dog handler noticed what he thought was part of a pistol protruding from underneath the driver's seat of the car. Based upon this observation, the officers searched the vehicle and found the following weapons: 1) an X-Cam .25 caliber semi-automatic pistol with a loaded clip lying next to it under the driver's seat; 2) a Colt .45 caliber semi-automatic pistol with a full magazine and a live round lying next to it under the driver's seat; 3) a Jennings .45 caliber semi-automatic pistol with a full clip and live round in the chamber in the coat pocket of a jacket located in the back seat; 4) a loaded Smith & Wesson revolver on top of other materials in the trunk; and 5) two stun guns, one under the passenger's seat and one in the trunk. Also found in the trunk were the following items: a pair of binoculars, two voice-activated FM transceivers, a box of rubber gloves, two pair of regular gloves, a ski mask, a notebook with several names, addresses diagrams and figures, a portfolio with a partial listing of items found in the trunk, a photograph of a man with a large amount of cash and a mobile phone, a gray wig, two fake brown beards, a package of "theatrical gruesome skin," a plastic bag with two additional large wigs, fake mustaches, fake teeth, a bag containing makeup, a can of silver hair color, additional hair pieces, and additional fake skin.

After the discovery of the firearms, the occupants of the vehicle were charged with carrying concealed weapons in violation of § 571.030. At trial, King invoked the "peaceful traveler's exemption," asserting he was traveling peaceably through the state. The case was tried without a jury. The trial court found King guilty as charged, specifically finding that King did not fit within the peaceful traveler's exemption. King was sentenced to five years imprisonment. Defendant King appeals from this judgment.

Traveler's Exemption provided in § 571.030

Defendant King contends that the trial court erred in failing to apply the statutorily provided peaceful traveler's exemption to the charge of carrying a concealed weapon because the State failed to show that King was not traveling peaceably through the state. In reviewing defendant's challenges to the sufficiency of the evidence presented, this court considers the state's evidence and all reasonable inferences drawn therefrom most favorably to the verdict, and disregards all contrary evidence. State v. Livingston, 801 S.W.2d 344, 345 (Mo. banc 1990). This court does not weigh the evidence, but only determines whether sufficient evidence was presented from which the trial court could conclude that defendant was guilty. State v. Hood, 680 S.W.2d 420, 423 (Mo.App.1984). Furthermore, this court must examine the totality of the circumstances, State v. Burkhardt, 795 S.W.2d 399, 404 (Mo. banc 1990), and defer to the trial court on issues of witness credibility. State v. Beck, 687 S.W.2d 155, 158 (Mo. banc 1985), cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986).

Section 571.030 provides:

1. A person commits the crime of unlawful use of weapons if he knowingly: (1) Carries concealed upon or about his person a knife, a firearm, a blackjack or any other weapon readily capable of lethal use....

3. Subdivision (1) of subsection 1 of this section does not apply when the actor ... is traveling in a continuous journey peaceably through this state.

The state bears the burden of proving each element of the offense and, if the defendant raises the special defense that he was traveling peaceably through the state, the state is further required to prove that the defendant did not fit within the exemption. State v. Wilkerson, 796 S.W.2d 388, 392-93 (Mo.App.1990). The precise question this court must address is whether the state presented sufficient evidence that King was not traveling peaceably through the state at the time of his arrest. As a part of that determination, this court must first determine the scope of the traveler's exemption.

It has been said that the primary purpose of statutes that prohibit the carrying of concealed weapons is "to break down the 'pernicious and dangerous' habit of carrying concealed weapons ... and to check and prevent, if possible, a practice which leads to woundings and injuries." State v. Horne, 622 S.W.2d 956, 958 (Mo.1981). Included in that purpose, of course, is that of empowering law enforcement officers to disarm and prosecute persons intending to use their weapons in criminal activities. The purpose of the traveler's exemption, on the other hand, is to preserve the right of law-abiding citizens to "protect themselves on the highways against such potential or unknown dangers as are not supposed to exist among their own neighbors." Id. The exemption for peaceful travelers has been a part of our law since 1879, when outlaw marauders preyed upon western travelers. State v. Mason, 571 S.W.2d 246, 249 (Mo. banc 1978) (Finch, J., dissenting).

This exemption was examined in State v. Wilkerson, 796 S.W.2d 388 (Mo.App.1990). The court in that case held that the traveler's exemption does not extend to cases where the circumstances show that the traveler is engaged in illegal activities. Wilkerson, 796 S.W.2d at 393 (possession of illegal drugs). The court there, looking at the construction of similar legislation in Texas and Florida, determined that the phrase "continuous journey peaceably through this state" should be construed strictly, with doubts resolved in favor of the general provisions of the statute rather than the exemption. Id. at 393. In concluding that the traveler's exemption did not extend to an instance where a concealed firearm was being transported along with illegal methamphetamine and cocaine, the Southern District stated:

we are not persuaded that all sorts of movement through the state, regardless of purpose, are to be regarded as travel. It is doubtless still true that there are some travelers for whom the lower lights should be left burning, but the statutory exemption should not be construed as a license to carry a concealed firearm during the commission of a felony. We do not believe that a person traveling through this state in the commission of a felony is 'traveling peaceably ' within the meaning of § 571.030.3.

Id.

This reasoning also suggests that the legislature would not have intended for the peaceful traveler's exemption to apply where the travel is only incidental to the defendant's purpose to engage in criminal activity. Thus, a traveler who happens to be fleeing the scene of an armed robbery he committed in another state would not be entitled to the "peaceful traveler's exemption." Similarly, this court concludes that the exemption cannot be invoked where the travel is incident to planned criminal activity involving the use of weapons.

Having established the scope of the exemption, we now consider whether the state presented sufficient evidence to prove that defendant King was not entitled to the benefit of the "peaceful traveler's exemption." The police officers who...