State v. Clark
| Decision Date | 05 December 1989 |
| Docket Number | 55834,Nos. 54114,s. 54114 |
| Parties | STATE of Missouri, Respondent, v. Ralph B. CLARK, Appellant. Ralph B. CLARK, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Vicki A. Dempsey, Hannibal, and Henry B. Robertson, Asst. Public Defender, St. Louis, for appellant.
William L. Webster, Atty. Gen., John P. Pollard, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant, Ralph Clark, appeals from the convictions by a jury of possession of burglar's tools and unlawful use of a weapon. He was sentenced to consecutive terms of two years and four years respectively. This appeal is consolidated with an appeal from the denial of his Rule 29.15 motion to vacate sentence. We reverse in part and affirm in part.
We review the evidence in a light most favorable to the verdict. On September 2, 1987, Gary Montgomery and Travis Mosley were at Mosley's trailer in Bloomfield, Iowa, discussing how to burglarize a bank in Downing, Missouri. Montgomery contacted Rick Morse, who in turn contacted defendant to help with the burglary. Defendant and Morse, both from St. Louis, came to the trailer in a white van and brought with them a crowbar, sledgehammer and a .38 pistol which Morse brought into the trailer in a green bag. The pistol was Morse's.
The four men then discussed their plans for the robbery of the bank at Downing, Missouri. The money was to be divided equally among the four men. Defendant's job was to be the driver. While the four men were in the trailer, the pistol was on the table. Defendant handled the pistol while at the trailer.
Later, Montgomery and Mosley loaded the van with the burglary tools including the green bag with the pistol in it. Defendant and Morse did not participate in the loading but stood in the front and on the side of the van. The four then got into the van and headed for the bank. Defendant was driving with Mosley sitting on the floor directly behind him and Morse next to Mosley. Mosley held the green bag carrying the pistol between his legs.
While en route to the bank, Highway Patrolman Johnson observed defendant's white van bearing expired license plates. Patrolman stopped the vehicle and asked defendant to produce his driver's license. Defendant stepped out of the van but was unable to produce his driver's license. Patrolman ran a computer check on defendant which revealed defendant's license had been suspended. Patrolman placed defendant under arrest for driving with a suspended license. When patrolman questioned defendant about where he was going and who the others were in his van, defendant said he did not know all their names and he was vague about where they were going and what they were doing.
Patrolman asked the others to get out of the van and then impounded the van due to its location on the highway. The van was towed away by a wrecker service. An inventory search was performed at the wrecker service by patrolman. Inside the van was a hammer, a cordless drill, some jumper wires, an electronic ohmmeter, drill bits, wire cutters, screwdrivers, throwing knives, various punches, a chisel, a large crescent wrench, a crowbar, two tire tools, a flashlight, binoculars, a voice activated headset, two books, (one titled "Techniques of Safe and Vault Manipulation" and the other "Modern Locksmithing") and a handwritten formula for homemade explosives. A .38 pistol was also found inside a green bag directly behind the driver's seat. The weapon was concealed beneath the flap of the green bag.
Defendant was charged by a two-count information of possession of burglar's tools and unlawful use of a weapon. Defendant was not charged with conspiring to carry a concealed weapon. A jury trial was held on November 19, 1987. Defendant took the stand in his own defense. He testified that the van was his as were most of the tools found in the van which he used in his construction business. He testified he was not aware of any of the other items (including the pistol) found in his van when the inventory search was conducted.
Defendant appeals his conviction contending the State failed to present a submissible case that he knowingly carried and concealed a .38 pistol and that the information charging him was insufficient. Defendant also challenges the denial of his Rule 29.15 motion to vacate sentence after an evidentiary hearing contending his trial counsel was ineffective in failing to seek severance of the charges and the withholding of exculpatory evidence by the State.
Initially, defendant asserts the State failed to make a submissible case on the carrying a concealed weapon charge in that the State failed to prove defendant knowingly carried the .38 pistol concealed on or about his person, where defendant did not take part in the loading of the van, there was no evidence he knew the pistol had been loaded in the van and there was no proof the pistol was within his easy reach and convenient control.
A prima facie case of carrying a concealed weapon is made upon the State's evidence or reasonable inferences therefrom which demonstrates (a) the carrying of a dangerous or deadly weapon, (b) concealed on or about the person, (c) along with an intent to so conceal. State v. Simmons, 716 S.W.2d 427, 430 (Mo.App.1986). The question of whether a weapon is on or about the person is determined by whether it is in such close proximity to the accused so as to be within his easy reach and convenient control. Id. [7, 8]. The requisite intent for carrying a concealed weapon may be inferred from the fact that the weapon was in fact hidden from view. Id. .
The seminal issue is whether the pistol was concealed on or about the person of defendant so as to be within his easy reach and convenient control where the pistol, found in defendant's van, was not defendant's but a passenger's, carried into the van by another and while defendant was driving, the pistol was in a bag between the legs of a passenger sitting at least one person away from defendant. Two cases are helpful.
In State v. Simon, 57 S.W.2d 1062, 1063[1, 2] (Mo.1933), defendant and passenger in defendant's car were arrested on another charge. Defendant was taken to the police station by a police officer. While en route to the police station, defendant told officer the passenger in his car had a gun in his pocket. The passenger and the car were searched and a concealed gun was found in a space in the car between the right side of the car and the cushion. Defendant was convicted of carrying a concealed weapon. The court reversed defendant's conviction and remanded for a new trial stating:
[m]ere knowledge on the part of [defendant] that [passenger] was committing the crime of carrying concealed a deadly weapon ... and even [defendant's] presence at the time, without any evidence of any act of participation by [defendant] in the wrongdoing of [passenger], does not tend to establish in any degree [defe...
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State v. Glass
...will not require reversal, unless it submits "a new and distinct offense from that with which defendant was charged." State v. Clark, 782 S.W.2d 105, 108 (Mo.App.1989). A variance must be material, and defendant must be prejudiced, to warrant reversal. Id. "Variances are material when they ......
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State v. Cruz-Basurto
...from that with which defendant was charged.’ " State v. Glass , 136 S.W.3d 496, 520 (Mo. banc 2004) (quoting State v. Clark , 782 S.W.2d 105, 108 (Mo. App. E.D. 1989) ). "A variance must be material, and defendant must be prejudiced, to warrant reversal." Id. (citation omitted). "Variances ......
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Woods v. Bowersox
...offense from that with which the defendant was charged. State v. Glass, 136 S.W.3d 496, 520 (Mo. banc 2004)(quoting State v. Clark, 782 S.W. 2d 105, 108 (Mo. App. 1989)). Instructing on one form of the offense where the information or indictment charges another form of the same offense is n......
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State v. Lee
...present case, the variance did not prejudice appellant's ability adequately to defend against the charges brought. See State v. Clark, 782 S.W.2d 105, 108 (Mo.App.1989). Appellant was prepared and presented an adequate defense for the method alleged in the information and the method present......