State v. Henderson, 47402

• Decision Date: 20 March 1984
• Docket Number: No. 47402,47402
• Citation: 669 S.W.2d 573
• Parties: STATE of Missouri, Respondent, v. Mitchra HENDERSON, Appellant.
• Court: Missouri Court of Appeals

Page 573

669 S.W.2d 573

STATE of Missouri, Respondent, v. Mitchra HENDERSON, Appellant.

No. 47402.

Missouri Court of Appeals,

Eastern District,

Division Three.

March 20, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Denied April 27, 1984.

Henry B. Robertson, Public Defender, St. Louis, for appellant.

John Ashcroft, Atty. Gen., Kristie Lynne Green, Asst. Atty. Gen., Jefferson City, for respondent.

CRANDALL, Judge.

Defendant appeals his convictions, after a jury trial, of robbery in the first degree, § 569.020, RSMo (1978), ¹ and assault in the first degree, § 565.050. He was found to be a persistent offender, § 558.016, RSMo (Supp.1983), and sentenced to consecutive thirty-year terms of imprisonment on each count. Defendant argues that the trial court erred in not dismissing the assault charge because of double jeopardy and erred in permitting improper cross-examination of defendant regarding a prior conviction. We reverse and remand.

Defendant first alleges that the trial court erred in not dismissing Count II of the information, which charged him with assault. He maintains that the act of violence necessary to support his conviction of robbery in the first degree was prior to and coterminous with the taking of the victim's property, and that no separate act of assault occurred. Under his theory, his conviction of assault subjected him to double jeopardy in that he is being punished twice for the same offense.

Defendant's contention is, in effect, a challenge to the sufficiency of the evidence to support a separate conviction of assault. The controlling rule was set out in State v. Richardson, 460 S.W.2d 537 (Mo. banc 1970):

If there is but a single act of force proved as an essential element of the crime of robbery, then such act of force cannot be availed of as constituting the separate crime of assault, but the rule is otherwise where the existence of the distinct elements as realities is established, as where the force relied on to establish assault occurred after the robbery had been accomplished.

460 S.W.2d at 540 (quotation omitted).

Whether there are single or distinct acts is to be resolved on the facts of each case. Thompson v. State, 606 S.W.2d 263, 264 (Mo.App.1980). Here the evidence is sufficient to support a finding that a distinct act of assault took place after the robbery was completed.

The State's case rested largely on the testimony of the victim. He testified that on the night of the robbery he was with defendant and an accomplice. He was walking down the street ahead of the others with his back to them. He was shot twice in the back and then pushed to the ground. At this point the sequence of events becomes slightly clouded. The victim's pocket was ripped and his wallet was stolen and then he was shot a third time by the defendant. The victim's testimony indicates that this was the sequence, and therefore the State contends that the third shot was a separate assault occurring after the robbery was complete. Defendant maintains that the victim never clearly and explicitly stated that the third shot was fired after the wallet was taken, and that the State therefore failed to prove a separate assault. While we agree that the victim's testimony is not a model of clarity as to the timing of that final shot, it sufficiently places the shot after the taking of wallet to make a submissible case on a separate charge of assault. Any further question on the timing of the last shot would have been one of fact for the jury. See State v. Coles, 604 S.W.2d 21, 23 (Mo.App.1980).

Since there was evidence to support a separate assault charge and conviction, we hold that the trial court properly denied the motion to dismiss that count. No other relief was requested of the trial court and no other claim of error concerning this point is advanced here for our review.

We turn now to defendant's second point.

Defendant testified on his own behalf. On direct examination he admitted that he had previously been convicted of attempted robbery in the second degree. On cross-examination the prosecuting attorney attempted to explore this conviction further, ostensibly for the purpose of impeaching defendant's credibility.

The use of a prior conviction to impeach a defendant who testifies is proper. § 491.050, RSMo (Supp.1983); § 546.260; State v. Turner, 655 S.W.2d 710 (Mo.App.1983). The use of the prior conviction for a purpose beyond impeachment, such as to suggest guilt of the offense presently charged, is improper. State v. Scott, 459 S.W.2d 321 (Mo.1970). The State may prove the fact of conviction, the nature of the charge, place and date of the occurrence and sentence imposed. Id. The State may not, however, go into the details of that crime or dwell on the prior convictions. State v. Sanders, 634 S.W.2d 525 (Mo.App.1982). Improper use of prior convictions can rise to the level of reversible error. Id.

On cross-examination the prosecutor asked about defendant's prior conviction. After revealing the place, date, and charge, the following exchange occurred:

Q [PROSECUTING ATTORNEY] That involved a weapon, didn't it?

A Huh?

Q That involved a weapon?

[DEFENSE COUNSEL]: I'll object to that as to the details of that offense.

THE COURT: Overruled.

Q [PROSECUTING ATTORNEY] You have a weapon in that?

A I didn't have no weapon.

Q You didn't have no weapon?

A No

Q There was a weapon involved.

A I didn't have no weapon.

Q Was there a weapon involved?

A (No response.)

Q Sawed-off shotgun?

A I didn't have no weapon.

Q Was there a sawed-off shotgun involved?

A I don't know if it was involved or not.

The State seeks to justify this line of questioning as a proper showing of the nature of the offense of which defendant had previously been convicted. We disagree.

The...