State v. Cobbins

• Decision Date: 27 June 2000
• Citation: 21 S.W.3d 876
• Parties: (Mo.App. E.D. 2000) . State of Missouri, Respondent, v. Timmis Cobbins, Appellant. Case Number: ED76627 Missouri Court of Appeals Eastern District Handdown Date: 0
• Court: Missouri Court of Appeals

21 S.W.3d 876 (Mo.App. E.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

State of Missouri, Respondent, v. Timmis Cobbins, Appellant.

Case Number: ED76627

Missouri Court of Appeals Eastern District

Handdown Date: 06/27/2000

Appeal From: Circuit Court of St. Charles County, Hon. Ellsworth Cundiff

Counsel for Appellant: Richard H. Sindel

Counsel for Respondent: Barbara K. Chesser

Opinion Summary: Cobbins appeals his convictions, following a jury trial, of felonious restraint, felony stealing, and misdemeanor property damage in the second degree.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

Division Five holds: (1) The trial court erred in overruling Cobbins' motion for judgment of acquittal on the felonious restraint count. The evidence was insufficient to establish his guilt because the State offered no evidence that he exposed the victim to a substantial risk of physical injury. (2) The trial court did not plainly err when it allowed a detective to testify as to a person's statements that Cobbins had been with him on the morning of the incident and was driving a car similar to the description given by the victim. This issue was not preserved for appellate review. This Court discerns no manifest injustice or miscarriage of justice from its admission.

Opinion Author: Lawrence G. Crahan, Judge

Opinion Vote: AFFIRMED IN PART; REVERSED AND REMANDED IN PART. Rhodes Russell, C.J., and Blackmar, Sr. J., concur.

Opinion:

Timmis Cobbins ("Defendant") was convicted following a jury trial of felonious restraint in violation of section 565.120 RSMo 1994,¹ felony stealing in violation of section 570.030,² and misdemeanor property damage in the second degree in violation of section 569.120. He was sentenced as a prior and persistent offender to consecutive terms of twenty years imprisonment on the felonious restraint charge and twenty years imprisonment on the felony stealing charge and a concurrent term of six months imprisonment on the charge of misdemeanor property damage. This appeal followed.

The facts viewed in the light most favorable to verdict are as follows. On August 26, 1998, at approximately 6:35 a.m., Victim, a fifty-five year old woman with cerebral palsy, was walking from her home on Beverly Drive in St. Charles, Missouri to attend church. At some point, Defendant stopped and offered Victim a ride. Victim accepted and got into the car. She immediately noticed that Defendant was driving in the wrong direction.

After Defendant crossed over Interstate 70, he reached over Victim and locked the car door. Victim told Defendant that she wanted out of the car, but he said, "[N]o we're going for a ride." Defendant then told Victim that he wanted her money. Victim had approximately $80 in her purse which was on her left shoulder when she entered the car. Defendant unzipped Victim's purse and took her wallet with the money in it, telling Victim he wanted the money for drugs and to fix his girlfriend's car.

Defendant drove Victim to the intersection of Boonslick and Cunningham and pulled into a driveway there. He removed Victim's glasses and punched out the lenses. Defendant threw one of the lenses in the car and threw the other one into the driveway, before returning the frames to Victim. Victim testified that without her glasses her vision was "[a] little blurred." Victim then exited the car and walked to her church at which point the police were summoned.

In his first point, Defendant contends the trial court erred in overruling his motion for judgment of acquittal on the felonious restraint count. Defendant contends the evidence was insufficient to establish his guilt beyond a reasonable doubt because the State offered no evidence that Defendant exposed Victim to a substantial risk of serious physical injury. We agree.

In assessing the sufficiency of the evidence, we consider all the evidence and the reasonable inferences drawn therefrom in the light most favorable to the verdict and disregard all evidence to the contrary. State v. Smith, 902 S.W.2d 313, 315 (Mo. App. 1995); State v. Zimmerman, 886 S.W.2d 684, 691 (Mo. App.1994). Appellate review is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. Id.

Felonious restraint is defined in section 565.120.1 as follows:

A person commits the crime of felonious restraint if he knowingly restrains another unlawfully and without consent so as to interfere substantially with his liberty and exposes him to a substantial risk of serious physical injury.

Whether the victim suffered serious physical injury is irrelevant. State v. Warren, 779 S.W.2d 751, 753 (Mo. App.1989). Also, the use of a dangerous weapon is not required to prove felonious restraint. State v. Smith, 902 S.W.2d at 315. The offense simply requires that a defendant unlawfully restrain the victim and expose the victim to a substantial risk of serious physical injury. Id.

Section 565.002(6) defines "serious physical injury" as a "physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body." A protracted loss or impairment of the function of any part of the body entails an injury short of permanent but more than a short duration. Smith, 902 S.W.2d at 315. Further, an impairment of the function of any part of the body means damage, injury or deterioration and is distinguishable from "loss" of function. Id.

There is no dispute that Defendant restrained Victim so as to interfere with her liberty. Defendant contends, however, that the State failed to present sufficient evidence that this restraint exposed Victim to a substantial risk of serious physical injury.

Whether unlawful restraint exposes a victim to the risk of serious physical injury is to be determined from all of the circumstances. Warren, 779 S.W.2d at 753. Missouri courts have focused on the defendant's behavior for evidence of physical intimidation or violence which, if repeated or carried further, could have seriously injured the victim or threats of or the propensity to commit violence which, if carried out, could have seriously injured the victim. Smith, 902 S.W.2d at 315. In Smith, the defendant grabbed the victim's wrist and led her into the garage of an adjoining house. 902 S.W.2d at 316. Once inside the garage, the defendant forced his pipe into victim's mouth and sodomized her. Id. This court, while noting the heinous and reprehensible nature of the defendant's acts, found that the State failed to make a submissible case on the charge of felonious restraint. Id. The defendant's act of forcing a pipe down victim's throat did not create a substantial risk of death nor was this act capable of "causing serious disfigurement or protracted impairment of any part of [v]ictim's body." Id. Moreover, the State's contention that the defendant exposed the victim to a substantial risk of serious physical injury by sodomizing her, as his actions could have exposed her to AIDS or damaged her vagina or uterus, was rejected because there was no evidence to support the alleged propensities. Id.

In the present case, Victim entered Defendant's vehicle voluntarily. As in Smith, Defendant never threatened Victim with physical injury. See Smith, 902 S.W.2d at 316. Victim testified that Defendant was not armed and did not even touch her when he removed her wallet...