State v. Ellinger, KCD

• Citation: 549 S.W.2d 136
• Decision Date: 28 February 1977
• Docket Number: No. KCD,KCD
• Parties: STATE of Missouri, Plaintiff-Respondent, v. James ELLINGER, Defendant-Appellant. 28661.
• Court: Court of Appeal of Missouri (US)

Page 136

549 S.W.2d 136

STATE of Missouri, Plaintiff-Respondent, v. James ELLINGER, Defendant-Appellant.

No. KCD 28661.

Missouri Court of Appeals, Kansas City District.

Feb. 28, 1977.

Motion for Rehearing and/or Transfer Denied April 15, 1977.

Application to Transfer Denied May 10, 1977.

William G. Mays, II, Public Defender, Columbia, for defendant-appellant.

John C. Danforth, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.

DIXON, Judge.

Defendant appeals his conviction and a court-imposed sentence of three years upon his conviction as a second offender of the offense of exhibiting a deadly weapon in a rude, angry and threatening manner. Defendant attacks the sufficiency of the evidence, the closing argument of the prosecutor as being a comment on the defendant's failure to testify and as implying the defendant was a threat to each juror if they failed to find the defendant guilty.

The question of sufficiency is raised by the defendant's motion in the trial court to enter a verdict notwithstanding the jury's verdict on the grounds of insufficiency of the evidence. State ex rel. Ryan v. Holt, 499 S.W.2d 821 (Mo.App.1973). The standard set forth in Holt requires that the sufficiency of the evidence be judged upon the same basis as in ruling on a motion for judgment on acquittal at the close of all the evidence. " '(T)he facts in evidence and the favorable inferences reasonably to be drawn therefrom must be considered in the light most favorable to the State, and evidence and inferences to the contrary are rejected.' " State v. Colton, 529 S.W.2d 919, 923 (Mo.App.1975).

So viewed, the evidence showed that the defendant and three of his friends entered a pizza restaurant and bar to play foosball in the bar portion of the premises. The manager inquired as to their ages and, upon determining that they were not 21, asked them to leave. Some discussion about their right to remain ensued, but, finally, the defendant started through the restaurant portion of the premises and on his way to the door picked up a glass and turned it over on the bar. There was some milk in the glass. The manager then approached the defendant with the glass in his hand and, according to the manager's version, told the defendant that he did not want him to return to the premises if he was going to behave in that fashion. The defendant then pulled a knife from his pocket which was described by the witnesses as being a hunting knife with a blade four to six inches in length, a one-piece knife made of shiny steel, contained in the defendant's pocket within a sheath. The defendant held the knife in his hand with the point upward and towards the manager. The manager turned away from him to call the police. An off-duty assistant manager was also present, and he testified that after the manager turned his back the defendant made a motion towards the manager with the knife but that he stopped when the assistant manager touched his arm. The defendant then turned away from the manager towards the assistant manager and went into "kind of a defensive position." The defendant then left the restaurant, his friends having preceded him.

There was proof of a prior conviction of a felony of selling controlled substances and probation upon the sentence imposed upon that offense.

The defendant's attack as to sufficiency centers upon the weapon, the manner of its use, and the elements of the offense. As to the weapon, the defendant insists that there was no evidence that the weapon was deadly; admittedly, the information and the instruction require such a finding. Premising his argument on the statement from State v. Campbell, 507 S.W.2d 431, 433 (Mo.App.1974), "Proof of . . . deadliness must be shown only when the weapon used is not one mentioned in the statute." Reasoning that the statute does not mention hunting knives, defendant asserts there was no evidence to support that element of the charge. There is a two-fold answer to that argument. First, the jury was entitled to infer that a 4- to 6-inch long bladed hunting knife is capable of inflicting a deadly wound. In fact, in the archaic language of the statute, a "bowie knife" has a dictionary definition, "a large hunting knife." Webster's Third New International Dictionary (1966).

Second and most importantly, the defendant has overlooked the statutory language, "or other similar weapons," and State v. Shannon, 467 S.W.2d 4 (Mo.1971) which construed the language in the context of an ordinary jackknife being by the "manner of its use" a deadly weapon. Shannon further holds that:

"The sufficiency of the evidence turns not merely upon whether the knife was itself a deadly weapon. It turns upon the evidence of how it was used, . . ." State v. Shannon, supra, at 5.

Thus, the real issue is whether the use of the knife by defendant in the manner described in the evidence was such that the intention to utilize its deadly nature is a reasonable inference. This issue is intertwined with defendant's second attack upon the sufficiency of the evidence in which he asserts that there is no evidence to support the adjective language of the statute, "rude, angry or threatening manner." The State in this case had prudently framed the information in the conjunctive since the approved instruction, MAI-Cr 13.12, directs the submission to be in the conjunctive. Because of this, prior cases which have affirmed convictions on pleading or proof of less than all three elements may not now be safely relied on as stating the law under the statute which is in terms disjunctive. See State v. Overshon, 528 S.W.2d 142, 143 (Mo.App.1975) and State v. Rice, 522 S.W.2d 656, 659 (Mo.App.1975).

Having pleaded and submitted in the conjunctive, the State has undertaken the burden of showing by appropriate evidence all of the elements of rudeness, anger and threats. Reasonably construed, the evidence viewed in the light most favorable to the verdict does show a threat by the upward pointed blade of the knife, the rudeness of the encounter, and the defendant's apparent anger. The actions of the defendant are sufficient to support inferences supporting the submission of the elements of the offense. This evidence, when it is considered as bearing upon the manner of use of the hunting knife is also sufficient evidence of the deadliness of the weapon. Shannon, supra.

Defendant's second ground of error is that two separate portions of the State's argument are prejudicially erroneous. The matter is asserted as plain error under Rule 27.20. Defendant first asserts that a portion of the argument of the prosecutor is within the rule announced in State v. Shuls, 329 Mo. 245, 44 S.W.2d 94 (1931). The argument in Shuls which was held erroneous was held to be a direct reference to the failure of the defendant to testify. The substance of the argument was that there were only three witnesses including the defendant and the two other witnesses were the only ones to testify.

The argument here closely parallels that in Shuls. The State, arguing for its version of the occurrence, argued "only three" persons were in a position to "testify" as to what occurred in the confrontation between the defendant and the manager and the assistant manager. In the light of all the evidence, this could only...