State v. Belton

• Decision Date: 27 May 1997
• Docket Number: No. WD,WD
• Citation: 949 S.W.2d 189
• Parties: STATE of Missouri, Respondent, v. Lacey V. BELTON, Appellant. 52813.
• Court: Missouri Court of Appeals

Page 189

949 S.W.2d 189

STATE of Missouri, Respondent, v. Lacey V. BELTON, Appellant.

No. WD 52813.

Missouri Court of Appeals,

Western District.

Submitted Feb. 4, 1997.

Decided May 27, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied July 1, 1997.

Application to Transfer Denied

Aug. 19, 1997.

Jeremiah W. (Jay) Nixon, Atty. Gen., David R. Truman, Asst. Atty. Gen., Jefferson City, for respondent.

James R. Wyrsch, Charles M. Rogers, Kansas City, for appellant.

Before BRECKENRIDGE, P.J., and SMART and EDWIN H. SMITH, JJ.

SMART, Judge.

Lacey V. Belton appeals his conviction of robbery in the first degree, § 569.020, RSMo 1994, ¹ for which he was sentenced as a prior and persistent offender to twenty years imprisonment. Belton challenges the sufficiency of the evidence, and seeks reversal on various contentions of trial court error. Because we find the evidence of guilt to be sufficient, and we find no trial court error warranting relief, we affirm the judgment.

FACTUAL BACKGROUND

We review in the light most favorable to the State, granting the State all reasonable inferences from the evidence. State v. Grim, 854 S.W.2d 403, 411 (Mo. banc), cert. denied, 510 U.S. 997, 114 S.Ct. 562, 126 L.Ed.2d 462 (1993). On February 10, 1995, Sharon Meyers and her young son went to the residence of Ms. Meyers' father, within a few blocks of Jacob Loose Park in Kansas City. After lunch, shortly after 1:00 p.m., Ms. Meyers took her son outside and opened the doors to her car in order to put her son into his car seat. She noticed a car driving slowly down the street toward her. The driver of the car was sitting very low behind the steering wheel. The car passed by Ms. Meyers and she noticed a strange writing on the windshield of the car, like a yellow crayon. The car came to a stop some ten feet from where Ms. Meyers was standing. A man jumped out of the car and approached Ms. Meyers with his hand in his pocket. Ms. Meyers believed that the man had a gun. He was yelling, "Give me your purse, don't make me shoot you, give me your purse." Ms. Meyers handed the man her purse, looking at his face as she did so. The man went back to his car.

Ms. Meyers made an effort to concentrate on the license plate number. She committed the number to memory, grabbed her son and ran into her father's house where she reported the incident, giving the license number to the authorities. She described the vehicle as a four-door, dark blue Buick with yellow lettering on the windshield.

Police ran the license number of the vehicle and found it registered in the name of Lori Lipka, Belton's wife. Three days later, the Independence police observed the car, stopped it, and apprehended Belton, who was driving. After being advised of his rights, Belton made a statement. Belton maintained that he was not involved in any robbery. When asked about his activities on February 10, he stated that he had taken his wife to work at the beauty salon on the Country Club Plaza at about 9:00 a.m. on the morning in question. He said that he then went to a friend's house near 26th and Askew, driving his wife's car. He said he then picked up his wife to take her to lunch at about 1:45 p.m. He said that after lunch he took her back to work, and then went to another friend's house. He declined to name the friends he was with that day when asked to do so.

Belton was photographed and his picture was shown to Ms. Meyers as a part of a photographic lineup. Ms. Meyers identified the picture of Belton as a picture of the man that robbed her. She explained that she was able to identify Belton because of his large eyes. She had examined his face at the time that she handed her purse to him. Ms. Meyers also identified a photograph of Belton's car. She noted that the car in the photograph had the same writing on the windshield that she had noticed during the robbery. At trial, Detective Thomas L. Robinson of the Kansas City, Missouri Police Department, testified that it took him from three and one-half minutes to six minutes to travel from the location where the robbery occurred to the salon where Belton's wife was employed, depending upon the traffic lights.

After hearing the evidence, the jury found Belton guilty as charged. The trial court sentenced him as a prior and persistent offender to twenty years imprisonment. Belton appeals.

SUFFICIENCY OF THE EVIDENCE

In Point I, Belton claims that the evidence presented at his trial was insufficient to support his conviction. He claims that the evidence was not sufficient to show that he was the man who robbed Ms. Meyers. He further claims that the evidence was not sufficient to show that he threatened Ms. Meyers with a dangerous weapon. In examining a sufficiency of the evidence claim, we examine the evidence to determine whether there is sufficient evidence to permit a reasonable juror to find guilt. State v. Storey, 901 S.W.2d 886, 895 (Mo. banc 1995). We accept as true all evidence supporting the verdict and the reasonable inferences flowing therefrom. Grim, 854 S.W.2d at 405. All evidence and inferences to the contrary are discarded. Id. We do not, however, weigh the evidence, State v. Villa-Perez, 835 S.W.2d 897, 900 (Mo. banc 1992), or determine the reliability or the credibility of witnesses. State v. Sumowski, 794 S.W.2d 643, 645 (Mo. banc 1990).

Belton contends that the identification by Ms. Meyers of him and of the car was insufficient to show that he was the man that robbed her. Ms. Meyers identified Belton in a photo array, stating that she was able to get a good look at his face when she handed him her purse. She said she was struck by Belton's "large eyes." Ms. Meyers indicated that she was not one hundred percent positive of the identification. She testified that she told the sergeant that she was ninety-eight percent certain and that she was "not a hundred percent sure about anything." Ms. Meyers made an in-court identification of Belton as the man who took her purse. In court, she testified that she was certain that Belton was the man that robbed her.

Belton relies on discrepancies between Ms. Meyers description of what he was wearing and what other witnesses testified that he was wearing on the day of the robbery. He also points out that he had five witnesses that testified that he could not be the robber because he was elsewhere at the time of the robbery. ² Belton claims that this testimony precludes the possibility that he committed the robbery. Of course, this argument is without merit because the jury had no obligation to believe the testimony of Belton's witnesses. Reliability and credibility are issues for the jury to decide. Id. Testimony given by a single witness may be sufficient to make a submissible case. Id.

Ms. Meyers also identified photographs of the car registered to Belton's wife. She noted that the yellow lettering on the windshield of the car that she observed during the robbery also appeared on the car in the photograph. The car driven by Belton, and registered to his wife, was a four door light blue Buick. Ms. Meyers originally reported the car of the robber as a four door dark blue Buick. One of the defense witnesses described the car as light blue, with "dark blue on the bottom." The license plate reported by Ms. Meyers was an exact match to Belton's car. There was abundant evidence from which a jury could conclude that Belton was the man who robbed Ms. Meyers.

"DANGEROUS WEAPON"

Belton also challenges the sufficiency of the evidence in establishing that a "dangerous weapon" was used during the robbery as required for a conviction under § 569.020. His theory is that since Ms. Meyers did not see a weapon during the robbery, the evidence was not sufficient to establish the robber's use of a weapon. However, it is not necessary that the victim of a robbery in the first degree actually see a weapon.

"Robbery in the first degree may be found where the victim is in fear even though there was no real possibility of injury." State v. Collins, 567 S.W.2d 144, 146 (Mo.App.1978). The fact that a victim perceives State v. Archer, 814 S.W.2d 315, 317 (Mo.App.1991).

there to be a weapon that remains unseen is sufficient whether or not, in fact, such a weapon exists. Id. Whether or not the object that is perceived as a deadly weapon or dangerous instrument is in fact capable of producing harm is unimportant. The threat to use the object to produce harm transmogrifies it into a dangerous instrument. See State v. Anderson, 663 S.W.2d 412, 416 (Mo.App.1983).

The robber jumped out of his car and approached Ms. Meyers with his hand in his pocket. Ms. Meyers testified that she thought that the robber had a gun. The robber yelled, "Give me your purse, don't make me shoot you, give me your purse." The evidence is sufficient whereby a reasonable juror could have concluded that Ms. Meyers believed that Belton was threatening to use a dangerous weapon, even though she did not see such a weapon. Point I is denied.

CLOSING ARGUMENT

In Point II, Belton alleges various errors were made during the State's closing argument. Belton did not object to most of the statements he alleges were error, and asks this court for a plain error review of the argument. Review for plain error is undertaken pursuant to Rule 30.20. State v. Parker, 886 S.W.2d 908, 922 (Mo. banc 1994), cert. denied, 514 U.S. 1098, 115 S.Ct. 1827, 131 L.Ed.2d 748 (1995). In State v. Varvera, 897 S.W.2d 198, 201 (Mo.App.1995), the Southern District clarified the mechanics of plain error review:

Plain error and prejudicial error are not synonymous terms. State v. Valentine, 646 S.W.2d 729, 731 (Mo.1983). Relief under the plain error standard is granted only when an alleged error so substantially affects a defendant's rights that a manifest injustice or miscarriage of justice inexorably results if left uncorrected. State v. Hadley, 815 S.W.2d 422, 423 (Mo. banc 1991). Appellate courts use the plain error rule sparingly and...