State v. Eoff

• Decision Date: 13 April 2006
• Docket Number: No. 26047.,26047.
• Citation: 193 S.W.3d 366
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Charles R. EOFF, Jr., Defendant-Appellant.
• Court: Missouri Court of Appeals

193 S.W.3d 366

STATE of Missouri, Plaintiff-Respondent, v. Charles R. EOFF, Jr., Defendant-Appellant.

No. 26047.

Missouri Court of Appeals, Southern District, Division Two.

April 13, 2006.

Motion for Rehearing or Transfer to Supreme Court Denied May 15, 2006.

Application for Transfer Denied June 30, 2006.

COPYRIGHT MATERIAL OMITTED

Irene Karns of Columbia, MO, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa M. Kennedy, Asst. Atty. Gen. of Jefferson City, MO, for Respondent.

JEFFREY W. BATES, Chief Judge.

Charles R. Eoff, Jr. (Defendant) was charged by amended information with committing three offenses: (1) Count I — the class A felony of robbery in the first degree; (2) Count II — the class C felony of assault in the second degree; and (3) Count III — the unclassified felony of armed criminal action. See § 569.020; § 565.060; § 571.015.¹ A jury found Defendant guilty on all counts. Because Defendant was alleged and found to be a persistent offender, the court assessed punishment. See § 558.016.3; § 557.036.2(2). The court imposed consecutive sentences of 15 years on Count I, 10 years on Count II and five years on Count III.

In Defendant's only properly-preserved point of error, he contends the trial court erred in refusing to instruct the jury on the lesser-included offense of second degree robbery. Defendant also contends the court committed plain error in refusing to instruct the jury on the lesser-included offense of third degree assault and in admitting testimony of a witness' out-of-court identification of Defendant. We affirm.

As Defendant does not challenge the sufficiency of the evidence to sustain his convictions, we consider the facts and all reasonable inferences derived therefrom in a light most favorable to the verdict. State v. Dillard, 158 S.W.3d 291, 294 (Mo.App.2005). We disregard all contrary evidence and inferences. State v. Lawrence, 64 S.W.3d 346, 348-49 (Mo.App. 2002). Viewed from that perspective, the favorable evidence and inferences supporting the State's case against Defendant are summarized below.

On December 14, 2000, Sandra Duke (Duke) was working the 4:00 p.m. to 9:00 p.m. shift as the attendant at a Gas Plus station in Belle, Missouri. The weather was cold, and there was snow on the ground. It was Duke's job to pump gas and collect money from the customers. She kept the money in a wallet that she carried with her at all times. When there were no customers present, Duke counted change or cleaned the station. At 7:15 p.m., Duke was sitting at a desk inside the station counting change when she saw two people walking around the side of the building. The pair entered side-by-side, and Duke saw that they had pantyhose over their faces.

The person in the lead was a tall, white male with a medium build. He had a goatee of sandy-blonde facial hair, and he was wearing a brown winter coat. He was holding a stick in his hand. The stick was a 1 × 2 inch piece of wood about 18 inches long with green paint on it.

The tall man was accompanied by another white male who also had a medium build, but he was about five inches shorter. He had dark, shoulder length hair. He was wearing a quilted, blue and white checkered jacket with a black or navy lining.

The tall man approached Duke and stopped about two feet from her. He was holding the stick by his side. The shorter man, who was standing just behind and to the left side of the tall man, was no more than three feet away. The tall man demanded Duke's wallet, which contained $115. After she handed it over, the tall man hit Duke over the head with the stick. She put her hand on her head, and he struck her with the stick again. The shorter man said, "Let's get out of here." The pair then ran out of the station with the wallet. The entire encounter lasted between five and ten minutes.

Duke ran out to the highway in front of the station and flagged down a man who called the police. Officer Daniel Scott (Officer Scott) responded to the call and arrived at the station five to six minutes later. When he got there, he observed that Duke was bleeding from a wound to her head. There was blood on her face, clothes and the floor. Officer Scott interviewed Duke for 15 minutes and then sent her to the hospital. During that interview, Duke recounted what had happened and described her assailants. Officer Scott relayed Duke's description of the robbers to other officers, and he also recovered the stick used to hit Duke.

When Officer Scott went outside to continue his investigation, he observed two sets of footprints in the snow. These footprints came around the back side of the station, went up the sidewalk beside the building and led right to the front door. Officer Scott took photographs of the footprints. One set of footprints was made by very large boots with the logo "Workload" on the soles. The boot print measured 14-inches long. It was larger than Officer Scott's footprint, and he wore a size 12 shoe. The other footprints were made by smaller shoes that had a "V" imprint on the soles.

While Officer Scott was collecting the footprint evidence, he received a telephone call from a citizen concerning a possible suspect vehicle that was in the area prior to the robbery. The caller described the vehicle as a green Dodge pickup with the word "Sold" written on the back window. This information was relayed to area law enforcement officers.

At around 10:30 p.m., Maries County Deputy Shannon Thompson (Deputy Thompson) was on patrol on Highway 28 when he passed an older, greenish-blue Dodge pickup with the word "Sold" written on the back window. There were three occupants in the vehicle. Deputy Thompson activated his emergency lights and turned around to follow the pickup. The driver turned onto a city street without signaling, sped up and pulled into a private drive. As soon as the pickup stopped, the driver and one passenger got out of the vehicle and ran away. The other passenger, Jeff Eoff (Eoff), got out and remained by the pickup. After unsuccessfully pursuing the driver, Deputy Thompson returned to the truck and placed Eoff in custody. He then followed the tracks of the passenger who ran away. He apprehended a female named Potobaum, who was hiding in some bushes by a house. She was brought back to the truck and taken into custody. Officer Scott arrived at the scene to stay with the pickup. In the floorboard of the truck, he saw a piece of wood with green paint on it that was similar to the one used in the station robbery.

Deputy Thompson then resumed his search for the driver. Because there was fresh snow on the ground, he was able to follow the driver's tracks to a house inside the Belle city limits. When Deputy Thompson arrived at the house, he was able to look through a window and see a person sitting on the couch inside. Deputy Thompson recognized the person as the driver of the pickup because of the clothing he was wearing. When the suspect answered the door, he was identified as Defendant and taken into custody.

Because Belle does not have a jail, Eoff and Defendant were taken by City Marshal Colin McKinnon (Marshal McKinnon) to city hall. Defendant was placed inside a room in the building, and Eoff was placed in the front lobby area.

While police were investigating the crime, Duke's husband had taken her to the hospital. Her head wound was cleaned, and five staples were used to close the cut. A wooden splinter was removed from Duke's hand, and x-rays were taken to determine whether any bones in the hand were broken. She got home at about 11:30 p.m. Within a few minutes, Duke received a telephone call from police asking if it was possible for her to come to city hall. They had picked up a couple of people and wanted to see if Duke could identify them. Duke arrived at city hall before midnight. When she came inside, she saw Eoff sitting in a chair in the front lobby. Duke immediately recognized Eoff as one of the robbers because of the clothing he was wearing. Duke was asked to wait in a side room while Eoff and Defendant were taken to another room for the show-up. An officer took Duke outside of the building and asked her to look through a window to see if she recognized the two suspects standing inside. Eoff and Defendant were handcuffed together, and they were accompanied by a police officer. Duke had a very clear, head-to-toe view of the suspects through the window. Duke studied them for more than a minute because she wanted to take a good look at them. The two men had on the same clothes they were wearing when they entered the station. Duke identified Eoff and Defendant as the persons who robbed her, based on the clothing they were wearing, Eoff's facial hair, Defendant's long hair, and their heights and weights when they stood together. There was no doubt in Duke's mind that Eoff and Defendant were the two men who robbed and assaulted her. She felt no pressure from the police to make that identification, and she was free to say they weren't the right ones if that had been the case. She identified Eoff and Defendant as the robbers based on her fresh recollection of their appearance at the crime scene a few hours earlier. Aside from not having a pantyhose covering Defendant's face, he looked the same standing in city hall as he did standing in the gas station.

After Duke identified Defendant, he was placed under arrest. Sometime after the show-up, Defendant escaped from police custody by opening a window at city hall and climbing out. Eoff remained in custody, and his boots were seized and retained as evidence. They were a size 14.

Defendant was apprehended by police again on February 26, 2001. At the time Defendant was arrested, he was wearing a pair of size 10½ tennis shoes with a "V" pattern on the sole. His shoes were seized and retained as evidence.

Later laboratory analysis of the stick used in the robbery and the stick found in the pickup showed that both sticks came from the same species of tree. Each stick...