State v. Daniels

• Decision Date: 28 March 2000
• Citation: 18 S.W.3d 66
• Parties: (Mo.App. W.D. 2000) State of Missouri, Respondent v. Kimber L. Daniels, Appellant WD56933 0
• Court: Missouri Court of Appeals

18 S.W.3d 66 (Mo.App. W.D. 2000)

State of Missouri, Respondent v. Kimber L. Daniels, Appellant

WD56933

Missouri Court of Appeals Western District

03/28/2000

Appeal From: Circuit Court of Jackson County, Hon. Jon R. Gray, Judge

Counsel for Appellant: Tara L. Jensen

Counsel for Respondent: John M. Morris

Opinion Summary: Daniels appealed from a conviction of armed criminal action, claiming she did not possess a dangerous instrument in an attempted robbery.

Court holds: There was sufficient evidence to infer that Daniels possessed a dangerous instrument during the attempted robbery because of the size and depth of a wound received by a store employee with whom she struggled.

Harold L. Lowenstein, Judge

Appellant, Kimber Daniels, was convicted after a bench trial of one count of the felony of armed criminal action (section 571.015¹). Appellant had previously plead guilty to a charge of the class B felony of Attempted Robbery in the First Degree (section 564.011). Appellant was sentenced to three years for the armed criminal action conviction, to run concurrently with an eight-year sentence for the guilty plea of attempted robbery.

Appellant's convictions arose out of the following incident. While high on crack cocaine, appellant made a brief and unsuccessful attempt to rob a video store in Kansas City on the morning of July 19, 1998. The attempted robbery began when appellant approached a store employee who was working at the counter, came around the counter and demanded money. When ignored, she again demanded money and threatened she had a gun. Appellant repeated that she had a gun, and motioned as though she had it concealed in the small purse she was carrying. In actuality, however, the appellant did not have a gun.

After these threats, the store employee physically confronted the appellant and the two scuffled as the employee pushed her around the counter and towards the front door of the store. During this scuffle, the employee suffered an injury on his wrist consisting of a one-inch deep cut that was three to four inches long. The employee bled extensively from the wrist and was subsequently taken to the emergency room where he received ten stitches from the wound, which left a permanent scar. Also during the scuffle, two of the appellant's long, polished fingernails were ripped off.

No witness was able to identify how the store employee's wrist was cut, nor did anyone see any kind of weapon at all on the appellant. The only testimony relating to the store employee's injury was his own, stating that

". . . he vaguely caught a glimpse of silver, real small, something" at one point in the appellant's hand. He also testified that he could not say for sure that it wasn't a ring on the appellant's hand.After being pushed towards the front door, the appellant attempted to reenter the store. Realizing that she did not have a gun, the store employee threatened to get his gun if she would not leave. After this threat, the appellant fled the store.

Appellant was arrested approximately one hour later. The arresting officer did not find a weapon on the appellant, but did recover her purse from her, which contained nothing that could be construed as a weapon. No object was ever discovered that could have caused the injury to the store employee's wrist.

At trial, the appellant denied using a knife or a dangerous instrument during the attempted robbery. The appellant was convicted of armed criminal action based on the court's belief that the attempted robbery "was committed with the assistance and aid of a dangerous instrument."

STANDARD OF REVIEW

Review of a court-tried criminal case is the same as for a jury-tried criminal case. State v. Owen, 990 S.W.2d 158, 159 (Mo.App. 1999). The appellate court accepts the state's evidence as true and gives the state the benefit of all reasonable inferences, disregarding all evidence to the contrary. Id.; State v. Brewer, 861 S.W.2d 765, 766 (Mo.App. 1993). Witness credibility is a matter for the trial court, and is not within the province of the appellate court in a court-tried criminal case. Brewer, 861 S.W.2d at 766. Review is limited to determining if the State introduced evidence sufficient to allow a reasonable fact-finder to find each element of the offense charged beyond a reasonable doubt. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993).

POINT RELIED ON

Appellant claims the trial court erred in overruling her Motion for Judgment of Acquittal at the Close of All Evidence. Appellant argues that the state's evidence was insufficient to support the court's finding of guilt beyond a reasonable doubt because the state did not establish that appellant committed a felony through the use, aid or assistance of a dangerous instrument or deadly weapon as required by section 571.015.

Section 571.015.1 governs the crime of armed criminal action and states in part that for a conviction under this statute, a person must have committed a felony "through the use, assistance, or aid of a dangerous instrument or deadly weapon." The term "dangerous instrument" (which the court based appellant's conviction on rather than a deadly weapon) is defined in section 556.061(9) as "any instrument, article or substance, which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury." "Serious physical injury" is defined as "physical injury that creates a substantial risk of death or that caused serious disfigurement or protracted loss or impairment of the function of any part of the body," pursuant to section 556.091(28).

The general question on appeal before this court is whether the evidence was sufficient to allow a reasonable trier of fact to conclude that in the appellant's commission of attempting to rob the video store she employed the use, assistance or aid of an instrument, article, or substance capable of causing death or serious disfigurement. Appellant argues that this appeal comes down to three questions:

1) Did appellant have an "instrument" at the crime scene that caused the cut on the store employee's wrist?

2) If so, does this instrument fit the statutory definition of a "dangerous" instrument?

3) If so, did appellant use the instrument in her commission of attempting to rob the video store?

Ordinary objects can be considered "dangerous instruments" depending on the circumstances under which they are used. See State v. Jackson, 865 S.W.2d 678, 680 (Mo.App. 1993). Caselaw has also held that a small knife (four-inch blade), State v. Schuler, 838 S.W.2d 19, 20-21 (Mo. App. 1992), or even a "butter knife" (as described by defendant) can be a dangerous instrument if used under certain circumstances. State v. Tankins, 865 S.W.2d 848, 851-52 (Mo.App. 1993). "In the absence of proof of its [a knife's] length, its dangerous qualities must be inferred by its effective cutting features in the hand of the defendant." People v. Kersey, 316 P.2d 52, 53 (Cal.App. 1957).

Thus, it is clear to this court that an object, even if never identified, that did indeed...