State v. Harris, WD

• Decision Date: 08 July 1980
• Docket Number: No. WD,WD
• Citation: 602 S.W.2d 840
• Parties: STATE of Missouri, Respondent, v. Larry HARRIS, a/k/a Clarence Campbell, Jr., Appellant. 31035.
• Court: Missouri Court of Appeals

Page 840

602 S.W.2d 840

STATE of Missouri, Respondent, v. Larry HARRIS, a/k/a Clarence Campbell, Jr., Appellant.

No. WD 31035.

Missouri Court of Appeals, Western District.

July 8, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Aug. 4, 1980.

Application to Transfer Denied Sept. 9, 1980.

Gerald Kiser, Public Defender, 7th Judicial Circuit, Liberty, for appellant.

John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before TURNAGE, P. J., and SHANGLER and MANFORD, JJ.

MANFORD, Judge.

This is a direct appeal from a jury conviction for robbery, first degree. The trial court affixed punishment at 10 years in the Department of Corrections. A timely motion for new trial was filed, overruled and this appeal followed. The judgment is affirmed.

Appellant presents three points of alleged error. His first point alleges that the trial court erred in its refusal to grant his motion for acquittal at the close of the state's evidence because the evidence was insufficient to sustain the verdict of the jury. The second point alleges the trial court erred in giving the verdict directing instruction no. 5 (MAI-CR 2.12, 7.60) because the evidence was insufficient to support the instruction. The third point alleges the trial court erred in failing to give a proper MAI-CR 2.14 instruction in conjunction with state's instruction no. 6 (MAI-CR 2.10).

The first two points raised by appellant are postured upon the same premise. The contention is that of insufficient evidence to sustain the finding of the jury. Obviously, if appellant's contention is correct on the first point, it must follow that the evidence is insufficient to support the challenged instruction. These first two points are taken up, discussed and disposed of together.

Because the sufficiency of the evidence is the challenge of appellant, it is necessary to give a recitation of the evidence. The only evidence upon the record was submitted by the state, as the appellant elected to offer no evidence. This court, in being asked by appellant to determine the sufficiency of the evidence, will accept as true all of the evidence on the record tending to support the jury's finding of appellant's guilt, together with all inferences which can be reasonably drawn therefrom, and will disregard contrary evidence and inferences, see State v. Morgan, 592 S.W.2d 796 (Mo.banc 1980) and State v. Gant, 586 S.W.2d 755 (Mo.App.1979). This court cannot weigh the evidence or substitute its assessment of the credibility of the witnesses for that of the jury, see State v. Denmon, 570 S.W.2d 326 (Mo.App.1978) and State v. Roesel, 574 S.W.2d 944 (Mo.App.1978). The charge to this court is the determination of whether or not there is substantial evidence from which reasonable persons could have found the accused guilty, see State v. Rollie, 585 S.W.2d 78 (Mo.App.1979).

At approximately 2:30 a. m. on December 12, 1978, appellant entered the 7-11 Store at 400 N.E. 32nd Street in Kansas City, Clay County, Missouri. There was one clerk on duty. (The evidence was undisputed that the clerk was an employee of the store and in charge of the premises). Appellant purchased some milk and cereal. Some 2-5 minutes after appellant's entry and while he was still in the store, two male customers entered. One of them asked the clerk for change for a quarter. At this point, appellant neither engaged the others in conversation nor did he acknowledge the other two in any manner. Likewise, the other two men did not appear to acknowledge appellant.

As the clerk was ringing up appellant's purchases, one of the other two men asked the clerk if something was wrong with the pinball machine. The clerk advised the man that by law she was required to shut off the machine at 1:30 a. m. Appellant paid for the milk and cereal and departed the store.

At this point, the other men decided they wanted to purchase a canned soft drink. These two paid for the soft drink, and they asked for a package of cigarettes. The precise brand and type of cigarettes was "Kool Filters". The clerk secured the cigarettes and as she began to "ring up" their purchase, one of these two men went around the counter with a gun and, while pointing the gun at the clerk, ordered her to open the two cash registers. The clerk opened the registers and was then ordered to lie on the floor. The clerk complied and as the two departed, they took a purse belonging to the clerk, one of the men kicked the clerk on the left side of the head and ordered the clerk not to phone the police for ten minutes.

The clerk testified she was placed in fear for her safety and that the men took the money without her permission.

The two men departed on foot. The clerk testified she had also observed appellant as he departed, that he was on foot and walking west on 32nd Street toward Burlington Avenue. The clerk testified that she never observed any of the three men in any type of vehicle and that there were no vehicles in the store parking area (except her own) at any time during the course of events.

Some fourteen minutes following appellant's entry into the store, a North Kansas City police officer received a radio call concerning a possible robbery of the 7-11 Store. This officer was in his patrol car at 20th and Buchanan when he received the call. He drove his patrol vehicle toward Burlington Avenue, since that direction was the shortest route to the store, and in his judgment, anyone leaving the store's location "would come that way to leave".

At 29th & Burlington, the officer observed a two-door, olive-green over light-green 1973 Oldsmobile. The officer testified that this Oldsmobile was the only vehicle, except for his own, anywhere upon the streets in the vicinity. The officer turned his patrol vehicle around and attempted to follow the Oldsmobile, but the latter vehicle increased its speed and then made "a rather abrupt left turn on Armour Road". When this occurred, the officer gave chase and the two vehicles traveled east on Armour when the Oldsmobile turned abruptly south onto Swift Avenue. The officer continued the pursuit, with his vehicle reaching 60 m. p. h. at times. The Oldsmobile continued south on Swift Avenue to 18th Street, then turned back to the east on 18th Street, proceeded east to Iron Avenue, at which point the street came to a dead end. The front right tire of the Oldsmobile struck the curbing and the tire burst. The Oldsmobile skidded to a stop in an adjacent vacant lot.

As the officer brought his patrol vehicle to a stop, he observed appellant exit the Oldsmobile from the passenger side of the Oldsmobile, then stop and reach back inside the Oldsmobile and pick up a pistol. Appellant then ran south into the vacant lot. The officer approached the Oldsmobile and apprehended the driver, who had never exited the vehicle. The third occupant was observed running from the Oldsmobile to the corner of a fence and then proceed south. This third occupant was quickly apprehended by other police officers, who had arrived on the scene.

The officer in original pursuit was joined by the other officers, one of whom located appellant lying on his stomach atop what was variously described as a "rock pile", "concrete pile" or "slag pile". When located and arrested, the officer discovered an unopened package of Kool cigarettes, a ten dollar bill and an amount of change (consisting of 25 nickels, 36 quarters, 26 dimes, two half-dollars and a silver dollar) beneath appellant's body. A subsequent search in the area of appellant's arrest revealed the pistol that appellant had been observed retrieving from the abandoned Oldsmobile. A search of the Oldsmobile resulted in the discovery of an inventoried list of items which included a brown paper bag containing $69.00 in currency, a gallon of milk and a box of cereal. The currency consisted of two five-dollar bills and fifty-nine one-dollar bills.

The clerk testified that the currency and change was "about the amount of money stolen". The clerk also testified that the Kool cigarettes bore the tax stamp for cigarettes sold in the store. She also testified about the loss of a silver dollar in the robbery and specifically recalled, "Okay, the reason I know is that night I had taken a silver dollar. And rarely did I ever get silver dollars in my store and there's one right there".

The pistol which was found was a single shot pellet gun. The clerk positively identified the pistol as the one used in the robbery, "Because the gun I saw had the black chipped off just like that one".

The clerk identified appellant and the two other men in a police lineup as having been the men in the store.

The state rested its case and appellant offered no evidence. The jury returned its verdict, appellant filed his motion for new trial and a hearing was held upon the motion. The motion was overruled. Following allocution, the court sentenced appellant to ten years in the Department of Corrections. This appeal followed.

In his first two points, appellant argues that the evidence fails to show his active participation in the actual robbery. Appellant bases his conclusion upon the testimony of the clerk, who testified that appellant did nothing in the way of robbing her, that he walked into the store, made a purchase and departed the store on foot without making conversation with the other two men or committing any overt act toward the perpetration of the robbery. Appellant further argues that there is no evidence of any activity by appellant prior to the robbery, or during its actual commission, and that even if an inference can be drawn that appellant threw away the gun after the vehicle chase, it would merely result in speculation by the jury that appellant had something to do with aiding or encouraging the robbery and could only "leave a question hanging in the air as to what he did and when it was done".

The evidence in this case is, of course,...