State v. Counselman
| Decision Date | 09 September 1980 |
| Docket Number | No. 41088.,41088. |
| Citation | 603 S.W.2d 3 |
| Parties | STATE of Missouri, Respondent, v. Wallace D. COUNSELMAN, Jr., Appellant. |
| Court | Missouri Court of Appeals |
C. Clifford Schwartz, Shaw, Howlett & Schwartz, Clayton, for appellant.
John Ashcroft, Atty. Gen., Paul Robert Otto, Lew A. Kollias, Asst. Attys. Gen., Jefferson City, George Westfall, Pros. Atty., Courtney Goodman, Asst. Pros. Atty., Clayton, for respondent.
Motion for Rehearing and/or Transfer to Supreme Court Denied May 19, 1980.
In this jury-waived case the trial court found defendant Wallace Counselman guilty of first degree robbery and armed criminal action and sentenced him to imprisonment for concurrent eight and three year terms.
Defendant first challenges the evidentiary sufficiency to show the statutory element of putting the victim in fear.1
We summarize the evidence. Defendant entered a restaurant, announced to the manager Wesley Bradley that his aim was robbery and pulled a loaded revolver from his pocket. When Bradley saw the weapon he "decided to go along". Defendant showed his gun to employees and on his order Bradley got money from a safe and cash registers, put it in a bank bag and ordered the employees into a walk-in cooler. Defendant held his gun to Bradley's head and guided him out the door. Meanwhile, a departing customer had told police a robbery was in progress; they were waiting for defendant at the door and ordered him to drop his gun. Defendant threatened to shoot Bradley, but finally yielded and threw down his gun.
Defendant testified the state's testimony was correct so far as he recalled, and gave a history of drug abuse extending to the time of the robbery.
Defendant cites portions of the victim's testimony that he was not scared and felt no harm would come to him. He relies on State v. Tidwell, 500 S.W.2d 3296, 7 (Mo. App.1973), to support his contention there was no evidence showing the necessary element of the victim's fear. That case held that although the victim said he was not personally afraid when he gave his money to the defendant at gun-point, "there could be no merit in the contention that the victim was not motivated by fear". Defendant also cites State v. Keeney, 425 S.W.2d 851, 2 (Mo.1968), which we find support the state, not defendant. The court there held that the victim's fear need not be expressly shown but may be presumed from evidence showing reasonable grounds therefor.
We deny defendant's primary point and consider his double jeopardy contention, arising from dual convictions for robbery and armed criminal action. We originally denied that contention in accord with State v. Valentine, 584 S.W.2d 926 (Mo.banc 1979), and on January 8,...
To continue reading
Request your trial
-
State v. Haggard
...The publishers are authorized to incorporate Sours II by reference to its earlier citation in their books.2 See State v. Counselman, 603 S.W.2d 3 (Mo.App.1980); State v. McGee, 602 S.W.2d 709 (Mo.App.1980); State v. Payne, 607 S.W.2d 822 (Mo.App.1980); State v. White, 610 S.W.2d 646 (Mo.App......
-
State v. Williams, 61595
...for the same reasons set forth in my dissenting opinion in State v. Haggard, 619 S.W.2d 44, decided this date. 1 See State v. Counselman, 603 S.W.2d 3 (Mo.App.1980); State v. McGee, 602 S.W.2d 709 (Mo.App.1980); State v. Payne, 607 S.W.2d 822 (Mo.App.1980); State v. White, 610 S.W.2d 646 (M......
-
State v. Crews, 63227
...for the same reasons set forth in my dissenting opinion in State v. Haggard, 619 S.W.2d 44, decided this date. 1 See State v. Counselman, 603 S.W.2d 3 (Mo.App.1980); State v. McGee, 602 S.W.2d 709 (Mo.App.1980); State v. Payne, 607 S.W.2d 822 (Mo.App.1980); State v. White, 610 S.W.2d 646 (M......
-
State v. Kendrick, 61936
...for the same reasons set forth in my dissenting opinion in State v. Haggard, 619 S.W.2d 44, decided this date. 1 See State v. Counselman, 603 S.W.2d 3 (Mo.App.1980); State v. McGee, 602 S.W.2d 709 (Mo.App.1980); State v. Payne, 607 S.W.2d 822 (Mo.App.1980); State v. White, 610 S.W.2d 646 (M......