State v. Barnes, 13418
| Decision Date | 27 June 1985 |
| Docket Number | No. 13418,13418 |
| Citation | 693 S.W.2d 331 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Thomas BARNES, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
John D. Ashcroft, Atty. Gen., Michael H. Finkelstein, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Allan C. Wilcox, Joplin, for defendant-appellant.
Following jury trial defendant was convicted of first degree robbery and sentenced as a prior offender to nineteen years' imprisonment. On appeal he presents five points relied on.
Defendant's first contention is that the trial court erred in failing to grant his motion for judgment of acquittal because the evidence was insufficient to support the finding that he was guilty of the crime charged. In determining the sufficiency of the evidence to support a finding of guilt we accept as true all evidence and inferences which tend to support the verdict and disregard all evidence and inferences to the contrary. The question is whether the evidence, viewed in the light most favorable to the state, is sufficient to support the verdict. State v. Lassen, 679 S.W.2d 363, 365 (Mo.App.1984); State v. Harris, 602 S.W.2d 840, 842 (Mo.App.1980).
Defendant acknowledges that the state established that a robbery committed by two persons occurred at the Fastrip Convenience Store in Joplin, at approximately 7:45 p.m. on January 14, 1983. Defendant asserts that there was insufficient evidence to show that he committed this crime. He states in his brief, "The only evidence against the Defendant that would connect him with the Fastrip robbery is the eyewitness account from the Fastrip clerk, Teresa Blankenship, and from a customer, Ron Haddock."
Although there was other evidence indicating his guilt besides their eyewitness testimony, that testimony alone was sufficient. It is not for this court to weigh the evidence or substitute its assessment of the credibility of the witnesses for the jury. State v. Harris, supra, 602 S.W.2d at 842.
Ordinarily the testimony of one eyewitness is sufficient to support a charge even though the testimony may be inconsistent, as inconsistencies in the testimony are questions for the jury. State v. Hitchcock, 676 S.W.2d 538, 539 (Mo.App.1984). That a witness's testimony may to some extent be contradictory does not prevent its constituting substantial evidence. Id. at 540. Here the only inconsistencies were in the descriptions given to law enforcement authorities before defendant's arrest and those inconsistencies were not such as to destroy the eyewitnesses' testimony.
In addition, after being arrested, defendant was questioned in the early morning hours of January 15, 1983 by a deputy sheriff. The deputy testified that defendant admitted being in the Fastrip Store at the time of the robbery on January 14, 1983. He said defendant told him, Defendant's first point has no merit and is denied.
In his second point defendant contends that the trial court erred in failing to grant his motion for mistrial because evidence of other crimes was introduced. He claims that he was prejudiced because the state introduced into evidence .22 caliber bullets, .410 shotgun shells, and money not shown to have been taken in the robbery. He also asserts that the state improperly showed that defendant had assaulted a police officer and that a person with defendant had been charged with driving while intoxicated.
Defendant's brief cites us only to a request for a mistrial because of evidence of the .22 caliber bullets and the .410 shotgun shells. Our search of the record finds no request for a mistrial regarding the money, assault on a police officer or that defendant's companion had been charged with driving while intoxicated. By not making a timely request for a mistrial the contention regarding them is not preserved for our review. State v. Luallen, 654 S.W.2d 226, 229 (Mo.App.1983).
There was evidence that a .22 caliber weapon was used in the robbery. Thus, finding .22 caliber bullets on defendant was sufficiently related to the crime that the evidence of them was admissible. Defendant's objection to the .410 shotgun shells was initially sustained and when they were later mentioned by one of the state's witnesses there was no objection. Although there was no evidence that a .410 shotgun was used in the robbery, possession of the shotgun shells is not a crime or so prejudicial as to require a mistrial. The drastic nature of a mistrial requires that it be granted only in extraordinary circumstances where the prejudicial effect cannot be removed in any other way, and such a determination rests...
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