State v. Harrell, SD 30312.

• Decision Date: 23 June 2011
• Docket Number: No. SD 30312.,SD 30312.
• Citation: 342 S.W.3d 908
• Parties: STATE of Missouri, Plaintiff–Respondent,v.Lee HARRELL, Defendant–Appellant.
• Court: Missouri Court of Appeals

342 S.W.3d 908

STATE of Missouri, Plaintiff–Respondent,

v.Lee HARRELL, Defendant–Appellant.

No. SD 30312.

Missouri Court of Appeals, Southern District, Division One.

June 23, 2011.

Alexa I. Pearson, Columbia, MO, for Appellant.Chris Koster, Attorney General, and, Jamie Pamela Rasmussen, Assistant Attorney General, Jefferson City, MO, for Respondent.DON E. BURRELL, Judge.

A jury found Lee Harrell (“Defendant”) guilty of committing the class B felony of first-degree burglary and the unclassified felony of armed criminal action (“ACA”) by unlawfully entering a church (with the purpose to commit stealing) while armed with a deadly weapon. See sections 569.160 and 571.015.¹ The alleged deadly weapon was a metal replica of the “Sword of Narnia” (the “replica sword”) that had been won by children as a carnival prize.² The trial court sentenced Defendant to serve twenty-five years in the Department of Corrections: ten years for burglary running consecutively to fifteen years for ACA.³

Defendant's three points on appeal challenge the classification of the replica sword as a deadly weapon, the sufficiency of the evidence to prove that it was used during the commission of the burglary, and the language of verdict-directing instruction for ACA. Finding no merit in any of Defendant's claims, we affirm.

Facts

The following is a recitation of the evidence as viewed in the light most favorable to the verdicts and disregards all contrary evidence and inferences. See State v. Grim, 854 S.W.2d 403, 411 (Mo. banc 1993). On June 21, 2009, Defendant was visiting friends at Robin Johnson's home in Rolla. At some point, Defendant left the home and later returned. When Defendant returned, he alarmed Johnson by walking into her house without her having let him in. Defendant grabbed the replica sword Johnson's sons had won at a carnival and took it with him from the home, stating that somebody “was trying to kill [him].” Johnson did not give Defendant permission to take the replica sword.

Johnson stated that after her sons had won the replica sword, she “would bring it down, and [the children] looked at it. They never played with it. It's not—that's not really what it was for.” She testified that the replica sword was “not something that you want your kids to actually play with. I kept it up over the stove, and we have neighborhood kids come over, and I know how kids are.” Johnson also testified that she would not want children to play with it “[b]ecause it probably hurts, you know, if they weren't careful with it.”

After Johnson identified the replica sword as the “Sword of Narnia” Defendant had taken from her home, it was received into evidence as State's Exhibit 1 and passed to the jury. Johnson noted that the replica sword was now “all banged up, scratched up” and had not been in that condition when Defendant took it from her home. Johnson described the replica sword as approximately 22 inches long and silver in color. A friend of Johnson's reported Defendant's theft of the replica sword, and a police officer eventually brought it back to her home “probably around midnight or a little after” and asked if she could identify it.

Thomas Davis, a Rolla police officer, had recovered the replica sword from the Tenth Street Baptist Church in Rolla. Officer Davis described the replica sword as a “sword” made of metal. Officer Davis went to the church to investigate a report that lights were going on and off inside the building. As Officer Davis walked north around the church, he “found glass and a screen lying on the ground.” He observed that a basement window had been “busted out” and “there wasn't much glass left in the windowpane at all.”

Other officers arrived and established a perimeter around the building. Officer Davis then heard something inside the church, and “[a] couple moments later, a head poked out the window and looked around like if [sic] they were looking to see if someone was there or not.” Officer Davis immediately recognized Defendant and ordered him to show his hands. Defendant instead retreated back inside the church. Officer Davis continued to command Defendant to come out and show his hands. Eventually, Defendant came to the window with his hands up. Defendant was then instructed to come through the window. He did so and was taken into custody.

Upon entering the church, Officer Davis observed a box and a lunch cooler sitting on top of broken glass by the basement window. He observed a stereo in the middle of the floor “in [the] downstairs portion” of the building. Upstairs, the officer observed two offices and a sanctuary. The offices had “been gone through and papers laying all over the floor, drawers open stuff like that.” Officer Davis observed a camcorder, videotapes, and a battery located between the two offices. In the sanctuary, “[a]ll of the audio equipment that was in the room had been pulled up away from the wall and [was] kind of in a disarray. There [were] also tool marks on that door where it looked like someone had tried prying something in there to open the door up.” ⁴ Officer Davis found the replica sword, along with a towel, in the sanctuary “a couple rows up on the right-hand side right under the end of a pew.” When Officer Davis collected the lunch cooler, he discovered “a black Honeywell safe” and “a black pouch with loose change contained within it.”

Officer Davis identified photographs taken of the broken window. Some showed views from the outside and others showed the scene from the inside. The photographs were admitted as Exhibits 6, 7, 8, and 9. Photographs depicting the replica sword were also admitted into evidence.⁵ One of those photographs, Exhibit 34, showed “deep scratches on the very tip of the sword and the metal.”

James Gregory Brown, the church's song-leader and a “key-holder” of the church, arrived at the scene. Brown went inside the church and observed that “[i]t looked like the building had been tossed, gone through.” He testified that “[t]here was a glass broken out to the secretary's office” and a basement window was also broken. Brown did not know Defendant and had not given him permission to enter the church. Brown also did not know of anyone else who might have given Defendant permission to be inside the church at the time of these events.⁶

Analysis

Point I

Defendant's first point asserts the evidence adduced at trial was insufficient to prove that the replica sword met the statutory definition of a “deadly weapon” for purposes of first-degree burglary and ACA. Defendant characterizes the replica sword as “a Chronicles of Narnia movie replica sword, won by children as a prize at a carnival, it is metal but does not have sharpened edges and is not designed as a weapon[.]” He also refers to it as a “child's toy.” The State concedes that to prove first-degree burglary it had to prove that Defendant was armed with a “deadly weapon,” statutorily defined as “any firearm, loaded or unloaded, or any weapon from which a shot, readily capable of producing death or serious physical injury, may be discharged, or a switchblade knife, dagger, billy, blackjack or metal knuckles[.]” Section 556.061(10). The State also concedes that the only way the replica sword meets the statutory definition of deadly weapon is if it qualifies as a “dagger.” ⁷

Defendant acknowledges that we must accept as true the evidence favorable to the verdict and disregard contrary evidence and inferences, State v. Withrow, 8 S.W.3d 75, 77 (Mo. banc 1999), but he also reminds us that we may not supply missing evidence or resort to unreasonable, speculative or forced inferences in support of the State's case, citing State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001). Statutory construction is a question of law, not fact, and we review it de novo. State v. Payne, 250 S.W.3d 815, 818 (Mo.App. W.D.2008).

Defendant's argument is that the legislature could not have intended that “a movie replica sword won by children at a carnival” would fall within the statutory definition of a “deadly weapon.” ⁸ Defendant notes that an actual sword is not included within the items listed as deadly weapons and argues that a replica (or model) of an unlisted item also cannot qualify as a deadly weapon, especially since criminal statutes must be construed strictly against the State, citing, for the latter proposition, U.S. v. Boston & M.R.R., 380 U.S. 157, 160, 85 S.Ct. 868, 13 L.Ed.2d 728 (1965). Defendant argues that “[t]he legislature is aware of the difference between a ‘sword’ and a ‘dagger,’ and is aware of the difference between a weapon and a model or replica of one.” ⁹

While “dagger” is not defined in Chapter 561, Payne—a case cited by both parties—considered the meaning of “dagger” as used in section 556.061(10) in the context of a second-degree assault with a deadly weapon. 250 S.W.3d at 818. In Payne, the actual weapon used to stab the victim was not recovered and could not be described by either the eye-witnesses or by experts who had analyzed the wounds. 250 S.W.3d at 817–18. Because there was no description of the item used to stab the victim, the Western District held there was no evidence that the weapon used was a dagger instead of some other short, sharp object such as scissors, a screwdriver, a shard of glass, or a switchblade knife. Id. at 821. It reversed the conviction for second-degree assault and remanded the case to the trial court with a directive that it sentence the defendant on the lesser-included crime of third-degree assault. Id. at 821–22.

In reaching its decision in Payne, the Western District considered the definition of “dagger” used by our high court in State v. Martin, 633 S.W.2d 80, 82 (Mo. banc 1982)—a “short weapon with a sharp point used for stabbing”—but determined that “[w]hile the definition was practical when applied to knives, it is overbroad when read without context of the particular factual situation to which it was applied.” 250 S.W.3d at 821. It also stated that...