State v. Applewhite, 54580
| Decision Date | 23 May 1989 |
| Docket Number | No. 54580,54580 |
| Citation | 771 S.W.2d 865 |
| Parties | STATE of Missouri, Plaintiff/Respondent, v. Jerry APPLEWHITE, Defendant/Appellant. |
| Court | Missouri Court of Appeals |
Doris Gregory Black, St. Louis, for defendant/appellant.
William L. Webster, Atty. Gen., John P. Pollard, Asst. Atty. Gen., Jefferson City, for plaintiff/respondent.
Defendant, Jerry Applewhite, was convicted by a jury of robbery in the second degree, § 569.030 RSMo 1986, two assaults in the second degree, § 565.060 RSMo 1986, and assault in the third degree, § 565.070 RSMo 1986. He was sentenced to concurrent sentences of 18 years imprisonment on the robbery, 15 years on each of the assaults, second degree, and 9 months on the assault, third degree. He appeals. We affirm.
Defendant contends the state failed to make a submissible case on each charge. To determine the issue of submissibility, we review the evidence most favorably to the state, accepting as true all facts and reasonable inferences tending to support the conviction and disregarding evidence and inferences to the contrary. 1 State v. Brown, 660 S.W.2d 694, 699 (Mo. banc 1983).
On the afternoon of March 31, 1987, defendant and two companions, Michael Isom and Lorenzo Jones, drove to the Schnucks supermarket located at 12305 Natural Bridge in Bridgeton, Missouri. Isom and defendant entered the store, leaving Jones behind in the car.
Dennis O'Neal, the store manager, saw two paper bags full of cigarettes near defendant and became suspicious. O'Neal told another employee, John Tucker, to watch the two men and to call the police. O'Neal then went to the store's exit doors and waited. Tucker saw defendant lift up his coat and "put two or three [cartons of cigarettes] ..., in the back of his pants, behind his coat."
Defendant and Isom walked through the check-out lanes, toward the exit doors, without paying. Each of them was carrying a bag of cigarettes. O'Neal stepped in front of them and said, At that point, with O'Neal blocking the door, defendant and Isom hesitated, then, still holding the bags, they "made a run for it." O'Neal said, he "was pushed aside", "knocked up against the [door]", and, although he grabbed Isom and defendant, they swung their arms and knocked his arms away.
O'Neal and Kevin Roach, a grocery clerk, chased defendant and Isom into the parking lot. Defendant got into the passenger seat of the car in which Jones was seated. Jones started the car and began to drive away. O'Neal stood directly in front of the car and tried to attract the attention of a police car. The suspects' car came right at O'Neal, who had to jump out of the way to avoid being hit. The car then collided with an arriving Bridgeton police car and, after the collision, continued out of the parking lot into oncoming traffic on Natural Bridge. Cars screeched to a halt. Isom, who had jumped onto the hood of the suspects' car, was thrown to the pavement. Defendant did not get out of the car while it was stopped. Isom, however, climbed into the car. The car then continued down Natural Bridge, with the police car, its siren and red lights activated, in pursuit.
During the chase that followed, the suspects' car reached a speed of 60 miles per hour and, at one point, used the shoulder to pass another vehicle. At another point, the suspects' car was forced to stop, but, again, defendant did not get out of the car. Traveling east, the suspects' car drove into a ditch on the south side of the road in order to pass a slower moving car. The suspects' car then crossed back over the eastbound lane and collided head-on with a westbound car containing Glenn and Bonnie Yansen, both of whom sustained serious injuries.
Defendant, who admits stealing the cigarettes, was arrested and charged with second degree robbery, two counts of assault, second degree for the injuries to the Yansens, and assault, third degree for the suspects' car traveling directly at Dennis O'Neal. After a jury trial, defendant was convicted and sentenced on all four counts. This appeal followed.
Defendant first contends there was insufficient evidence of physical force to support his conviction for robbery, second degree. We disagree.
A person commits second degree robbery when he "forcibly steals property", § 569.030 RSMo 1986, and "a person 'forcibly steals' "
when ... he uses or threatens the immediate use of physical force upon another person for the purpose of:
(a) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking;
§ 569.010(1) RSMo 1986.
Our statutes do not define the term "force" itself nor do they define the quantum of "force" necessary to constitute forcible stealing. This standard, however, has been judicially determined. State v. Harris, 622 S.W.2d 742 (Mo.App.1981).
In Harris, the defendant, while escaping from a store, "shoved" a department store security guard "with her shoulder ... not an accidental bump ... [but] like a football player" and also pulled the stolen clothes from the guard's grasp. Id. at 745. The court held this conduct constituted sufficient "force" to support the charge of robbery, second degree. Id.
In the present case, O'Neal, the store manager, testified:
"... I was pushed aside, ... as they went back past me, you know, they were running past me, I had ahold of them, and they just kind of knocked me off, and I got knocked up against the [door], and they just went on through the door."
He also said he grabbed Isom and defendant, but, he said, they swung their arms and knocked his arms away.
Defendant attempts to distinguish these facts from those in Harris by the bald assertion that the force used against O'Neal was "more akin to a 'bump' " and the contact was "similar to an 'accidental' contact as defendant and Isom tried to get out of the door, rather than an intentional act of force." This assertion implicitly turns the scope of review on its head. We view the evidence and inferences most favorably to the state, not to defendant. E.g., State v. Brown, supra at 699. O'Neal's testimony supports the inference that defendant's conduct was not accidental but was intentional to overcome O'Neal's resistance to the theft. Moreover, the impact on O'Neal's person was sufficient force to support the submission of the charge to the jury. As noted in Harris, it is not even necessary that the victim be touched to support a submission of forcible stealing under § 569.030. Id. at 745.
Defendant also contends there was insufficient evidence to submit the charges of assault, second degree to the jury. His argument is focused on the requisite mental element. He relies on testimony of two of the state's witnesses who said the suspects' car was "out of control" when it came out of the ditch and collided with the Yansens' car. Citing this testimony, he contends there was no evidence "that defendant acting with Jones, the driver, intentionally, purposely, feloniously or recklessly struck the Yansens' car for the purpose of causing them serious physical injury."
A person commits the crime of assault in the second degree if he
. . . . .
(3) Recklessly causes serious physical injury to another person;
§ 565.060 RSMo 1986.
A person "acts recklessly" or is reckless when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.
§ 562.016.4 RSMo 1986.
One of the police officers testified he pursued the suspects' car in his police car with the siren and red lights activated. While being pursued, the suspects' car traveled at speeds up to 60 miles an hour, passing slower vehicles on the right by using the shoulder and a ditch. Such driving constitutes a conscious disregard of an unjustifiable risk and a gross deviation from the standard of care that a reasonable person would use. The resulting head-on collision demonstrates the risk and the consequences of disregarding it. An opinion the car may have been "out of control" just before the collision is beside the point. The jury could reasonably infer the reckless driving caused the car to go out of control and injure the Yansens. 2
Defendant next attacks the indictment as being fatally defective. First, defendant argues the omission of the word "feloniously" renders the charges of assault, second degree in the indictment defective. Defendant relies on State v. Vonderau, 438 S.W.2d 271, 272 (Mo. banc 1969), in which the Court stated "the use of the word 'feloniously' is necessary [in charging a felony], for the very sufficient reason that its use informs the accused of the nature or grade of the crime he is alleged to have committed." Defendant's reliance on Vonderau is misplaced.
If Vonderau is still viable under our present Criminal Code, its requirement that the defendant be informed of the grade or nature of his crime was met by the present indictment. Both second degree assault charges provide the statutory section number and expressly state that defendant "committed the Class C felony of assault in the second degree...." (Emphasis added) Obviously, this allegation fully apprised defendant and his trial counsel of the nature and grade of the offenses charged. The omission of the word "feloniously", thus, does not render the indictment defective. See State v. Barkwell, 590 S.W.2d 93 (Mo.App.1979).
Defendant also contends that Count I was fatally defective because the charge of robbery, second degree did not contain the word "willfully". The discussion above applies equally to this contention. Moreover, the charge of robbery, second degree tracks the language of the approved charge. See MACH-CR 23.04. Compliance with the form approved by the Supreme Court satisfies...
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