State v. Brown
| Decision Date | 28 August 2018 |
| Docket Number | No. ED 105390,ED 105390 |
| Citation | 558 S.W.3d 105 |
| Parties | STATE of Missouri, Respondent, v. Roy BROWN, Appellant. |
| Court | Missouri Court of Appeals |
FOR APPELLANT: Maleaner R. Harvey, Missouri Public Defender Office, 1010 Market St., Ste. 1100, St. Louis, MO 63101.
FOR RESPONDENT: Joshua D. Hawley, Attorney General, Julia E. Neidhardt, Asst. Atty. Gen., P.O. Box 899, Jefferson City, MO 65102.
Roy Brown ("Defendant") appeals the judgment, following a jury trial, convicting him of eight counts of second-degree robbery, one count of attempted second-degree robbery, three counts of first-degree robbery, and one count of resisting arrest. On appeal, Defendant argues, (1) there was insufficient evidence to convict him of one count of attempted second-degree robbery and one count of first-degree robbery; and (2) the trial court’s written sentence and judgment contains clerical mistakes.
Because we find there was sufficient evidence from which a reasonable juror could have found Defendant guilty of the attempted second-degree robbery and first-degree robbery convictions he challenges on appeal, and because Defendant does not challenge any of his other eleven convictions, we affirm the judgment of convictions. However, we remand with instructions to the trial court to enter a nunc pro tunc order to correct clerical mistakes in the written sentence and judgment that fail to accurately denominate Defendant’s counts and convictions, fail to accurately memorialize the jury’s verdicts, and fail to accurately memorialize the trial court’s sentences as announced in open court.
Defendant was charged with ten counts of second-degree robbery, one count of attempted second-degree robbery, and three counts of first-degree robbery for incidents that occurred in the downtown St. Louis area from approximately November 26-December 23, 2015. Defendant was also charged with one count of resisting arrest for an incident that occurred on or about December 23, 2015.
A jury trial took place on Defendant’s charges from January 30-February 2, 2017. At the close of the State’s evidence and at the close of all of the evidence, Defendant filed motions for judgment of acquittal with respect to all fifteen charges. The trial court denied the motions.
The jury found Defendant guilty of all charges except for two second-degree robbery charges. Defendant then filed a motion for a new trial, alleging the trial court erred in denying his motions for judgment of acquittal. The trial court denied Defendant’s motion for a new trial.
After holding a sentencing hearing on March 9, 2017, the trial court entered a written sentence and judgment convicting Defendant of eight counts of second-degree robbery, one count of attempted second-degree robbery, three counts of first-degree robbery, and one count of resisting arrest. Pursuant to both the trial court’s oral pronouncement of sentence at Defendant’s sentencing hearing and the trial court’s written sentence and judgment, Defendant was sentenced to a total of sixty years of imprisonment. Defendant appeals.1
Defendant raises three points on appeal. In his first and second points, Defendant challenges the sufficiency of the evidence to support two of his convictions. In Defendant’s third point, he argues the trial court’s written sentence and judgment contains clerical mistakes.
In Defendant’s first and second points on appeal, he challenges the sufficiency of the evidence to support his convictions for one count of attempted second-degree robbery and one count of first-degree robbery.
Appellate review of a claim that there was insufficient evidence to support a criminal conviction is limited to a determination of "whether the [S]tate has introduced sufficient evidence from which a reasonable juror could have found each element of the crime beyond a reasonable doubt." State v. Hosier , 454 S.W.3d 883, 898 (Mo. banc 2015). In making that determination, great deference is given to the trier of fact, and an appellate court will not weigh the evidence anew. State v. Nash , 339 S.W.3d 500, 509 (Mo. banc 2011). Additionally, all evidence and inferences favorable to the State are accepted as true, and all contrary evidence and inferences are disregarded. Id.
The State may meet its burden of proof by presenting either direct or circumstantial evidence connecting the defendant to each element of the crime. State v. Burns , 444 S.W.3d 527, 529 (Mo. App. E.D. 2014). Furthermore, circumstantial evidence is given the same weight as direct evidence in considering whether there was sufficient evidence to support a conviction. Id. at 528-29.
We initially note that Defendant’s sufficiency of the evidence claims are based upon language in the verdict directors for the attempted second-degree robbery and first-degree robbery offenses he challenges on appeal. Defendant is essentially claiming that to convict him of those offenses, the State had to prove Defendant’s exact conduct alleged in the verdict directors. A similar argument was recently addressed in detail and rejected by this Court in State v. Voss , 488 S.W.3d 97, 108-10 (Mo. App. E.D. 2016), where we held in relevant part:
[I]n determining a sufficiency of the evidence claim, we are not concerned with the language of the verdict-directing instruction submitted to the jury. Instead ... we are concerned only with whether there is sufficient evidence to support the charged crime, based on the elements of the crime as set forth by statute and common law and the evidence adduced at trial.
Id. at 109 (internal citations omitted).
Accordingly, Defendant’s reliance upon the conduct alleged in the verdict directors is misplaced, and we will determine whether there is sufficient evidence to support Defendant's convictions for attempted second-degree robbery and first-degree robbery based on the elements of the crimes as set forth by statute and common law and the evidence adduced at trial. See id. at 109-10 (similarly finding); cf. State v. Simmons , 233 S.W.3d 235, 238-39, 239 n.2 (Mo. App. E.D. 2007) ().
In Defendant’s first point on appeal, he contends there was insufficient evidence to convict him of one count of attempted second-degree robbery relating to an incident involving victim Ashish Patel that took place on or about December 5, 2015 (Count V).2
On the night of December 4-5, 2015, Patel and his wife Ofilea Torres were staying at the Hilton hotel in downtown St. Louis. Shortly before midnight, Patel and Torres went outside a side entrance of the hotel to smoke, and they were approached by three men. One of the men punched Patel in face and "knocked [him] cold on the ground," causing Patel to be "out" for about six or seven minutes. When Patel awoke, the three men were gone, police were at the scene, and none of Patel’s items were taken.
During the time Patel was "knocked out," one of the men took Torres’s purse, which contained several items including her credit cards. Torres screamed and banged on the windows of the hotel to draw attention, and several people came rushing outside to help Torres and Patel. After Patel awoke, he logged into Torres’s credit card accounts, and he saw four or five unauthorized transactions had taken place in East St. Louis, Illinois shortly after Torres’s purse had been stolen, including one unauthorized transaction at an ATM at the Casino Queen. Defendant later admitted to police that he had taken Torres’s purse and he used Torres’s card to take money from the ATM at the casino.
Defendant was charged with one count with respect to his conduct involving Torres (Count IV)3 and with one count with respect to his conduct involving Patel (Count V). Count IV alleged Defendant committed second-degree robbery in that he forcibly stole Torres’s purse. Count V alleged Defendant committed attempted second-degree robbery in that he, inter alia , "knocked [ ] Patel to the ground ..., and such conduct was a substantial step toward the commission of the crime of robbery in the second degree, and was done for the purpose of committing such robbery in the second degree."4 The jury found Defendant guilty of both counts.
In this case, Defendant claims there was insufficient evidence to convict him of attempted second-degree robbery relating to the incident involving Patel under a theory of accomplice liability (Count V). A person commits the crime of second-degree robbery "when he forcibly steals property." Section 569.030.1 RSMo 2000.5 Section 569.010(1) provides in pertinent part:
A person is guilty of an attempt to commit a particular offense when, "with the purpose of committing the offense, he does any act which is a substantial step towards the commission of the offense." Section 564.011.1. "A ‘substantial step’ is conduct which is strongly corroborative of the firmness of the actor’s purpose to complete the commission of the offense." Id. (emphasis omitted). Whether an act or...
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