State v. Hightower
| Decision Date | 05 September 1997 |
| Docket Number | No. 21183,21183 |
| Citation | 951 S.W.2d 712 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Harry HIGHTOWER, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Ellen H. Flottman, Asst. Public Defender, Columbia, for defendant-appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Gregory L. Barnes, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Harry Hightower (defendant) was convicted following a jury trial of robbery in the first degree, § 569.020, 1 (Count I), armed criminal action, § 571.015, (Count II), and tampering in the first degree, § 569.080.1(2), (Count III). This court affirms.
One of defendant's challenges on appeal is directed to the sufficiency of the evidence. When reviewing for sufficiency of evidence, appellate courts accept as true all evidence favorable to the state, including all favorable inferences drawn therefrom, and disregard all evidence and inferences to the contrary. State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989).
Town & Country Grocery Store is located in Charleston, Missouri. On the evening of October 26, 1995, an office worker, Robin Slaten, packaged the store's money so it could be taken to First Financial Bank. She prepared two bank bags. She placed cash in a bag she described as "the drop bag" and food stamps and checks in another bag she called "the deposit bag." Deposit slips were included in the deposit bag "[b]ecause that's what's deposited." The drop bag included "packaged" cash and cash used to make change for customers.
Ms. Slaten told the jury, Ms. Slaten would put the packaged money and the cash that was used for change in the drop bag at the end of the evening. She explained, "It's cash that we've brought in for the night that we take over and just pick up the next day."
Ms. Slaten estimated that the drop bag contained between $3,500 and $3,800 the evening of October 26. The packaged cash was wrapped in $100 bundles containing bills of the same denomination. She explained:
Q. [by the prosecuting attorney] Now, tell the jury, if you can, how that money would appear physically.
A. They would have been in bundles of $100s, with rubber bands or paper clips around them.
Q. All right. Now, bundles of $100s. Let's go a little more systematic than that. Tell me about the $1 bills. How would they be packaged?
A. They're packaged $25, with a rubber band around them or paper clip, and then four--four bundles would be--make $100. And then they get rubber banded around them.
Q. All right. Now, what about the $5 bills?
A. They're packed in $100--$100s, and there would be five bundles of them. And then they would be rubber banded.
Q. Okay. So you're talking in terms of twenty $5 bills would be $100?
A. Yes.
. . . . .
Q. Tell me about the $10 bills.
A. They're in bundles of $100s. They're paper clipped or rubber banded. And then five bundles make $500, with a rubber band around them.
Q. Okay. And what about the $20 bills?
A. They're bundled in $500, with rubber band around them and--or paper clipped. And then two bundles would have made $1,000, wrapped around.
Q. And that's the $20 bills. Do you recall on the night of the 26th if there were any other bills of other denominations?
A. I remember having four $50 bills that night.
The night manager who was working the evening of October 26 was Clifton Cossey. He closed the store that evening. He prepared to take the drop bag and the deposit bag to First Financial Bank. The bank was across the street from Town & Country Grocery Store.
Mr. Cossey and another employee, Larry Jones, took the bags in Cossey's truck. In accordance with store policy, a third employee, Michael Bankhead, followed them to the bank. When Cossey and Jones pulled into the bank parking lot, a man jumped from behind a wooden barrier that was around a dumpster in the lot. He had a sawed-off shotgun. The man pointed the shotgun at Cossey and Jones and told them to get out of Cossey's truck. He told Cossey to get out or he would shoot. When Cossey and Jones got out of the truck, the man got in the truck and drove off with the bank bags.
About 15 minutes after the robbery occurred, Charleston police officers Anthony Moody and Kelly Brown were sitting in a patrol car when they observed a light blue two-door automobile pass in front of them. The officers watched the car as it approached an intersection. The car ran a stop sign. As the car turned a corner, it was sideways in the road. The officers turned on their red lights and pursued the car until it pulled into a driveway and stopped.
When the car stopped, the driver, later identified as Woodrow Anderson, jumped out of the car and began to walk away. Officer Moody observed a large knife sticking out of Anderson's back pocket. He ordered Anderson to stop and get on the ground. Anderson continued walking. Officer Moody again ordered Anderson to stop and get down on the ground. Anderson complied. Officer Moody removed the knife from Anderson's back pocket, then brought Anderson back to the vehicle and had him put his hands on the hood of the car.
Officer Brown got out of the patrol car and approached the passenger side of the stopped car. Defendant was in the car. Officer Brown told defendant to get out and put his hands on top of the car. When defendant got out of the car, Officer Brown took hold of one of his arms. Defendant broke loose and ran. Officer Brown chased defendant. He explained,
Defendant was arrested and handcuffed. He was taken back to the car. Officer Brown then returned to where defendant had fallen. He found an orange hat and a large amount of cash. Officer Brown explained:
Q. [by the prosecuting attorney] Now, you said you observed an orange cap. Was that [defendant's] cap?
A. Yes, ma'am, it was. He was wearing it during the foot pursuit. It fell off his head as he fell.
Q. Did he have it on his head when he got out of the vehicle?
A. Yes, ma'am, he did.
Q. And you saw him take off running with that hat on?
A. Yes, ma'am, I did.
Q. And when you handcuffed and picked him up, he had lost the hat?
A. Yes, ma'am.
Q. You--Well, exactly how did you find this currency? Do you remember?
A. I--Yes, ma'am, I do remember.
Q. How was it?
A. It was underneath the hat. It was in bundles of $20s, $5s, $10s, et cetera.
The amount of cash recovered with defendant's hat was $1,924. Woodrow Anderson had an additional $1,933 at the time he was arrested.
A short time after defendant and Anderson were arrested, police officers found Mr. Cossey's truck. It had been abandoned a short distance from the bank. Two footprints were found nearby, one beside the truck and one about eight feet from the truck. The officers covered the footprint nearest the truck to protect it from rain.
The next morning Charleston Police Lieutenant Robert Hearnes made a plaster cast of the footprint beside the truck. The tread was from a Nike tennis shoe. The cast was compared to the bottoms of Nike tennis shoes defendant was wearing when he was arrested. Lt. Hearnes testified that the footprint appeared to have been made by a shoe the same size as those defendant was wearing. The footprint showed the same type of tread as defendant's shoes.
Defendant's first allegation of error asserts the trial court erred in denying defendant's motions for judgment of acquittal at the close of the state's case and at the close of all the evidence and in imposing sentence for the three offenses for which he was tried. 2 Defendant contends the state failed to produce sufficient evidence for the jury to have found him guilty of the robbery of the Town & Country Grocery Store.
Defendant argues the evidence was insufficient because he was not positively identified as the robber; that the testimony at trial was only that he "looked like" the robber who was described as a tall, black man. He contends the evidence that he ran away from the police after the car was stopped; that he was carrying bundles of money in his cap, packaged the way the grocery store packaged cash, totaling about half the amount of cash taken in the robbery; that his footprint was similar to the one found near the abandoned truck are circumstances that are suggestive, but that they are not sufficient to prove his guilt beyond a reasonable doubt.
Clifton Cossey told the jury defendant fit the description of the robber. He explained, however, that he was "[n]ot 100 percent sure" defendant was the robber; that the robber had a hat on; "he had a stocking over his face and he had a mustache and a goatee." The jury was told that defendant ran from the car in which he was a passenger when the car was stopped by police; that when defendant fell his hat came off; that the hat had more than $1,900 in currency inside. The jury learned that the other occupant of the car, its driver, also had more than $1,900 cash. It knew that the amount of cash recovered from defendant and his companion corresponded with the estimated amount of cash taken in the robbery. The jury knew defendant was wearing tennis shoes when he was arrested that had the same type of tread on the soles as the footprint alongside the truck that the robbers took from the robbery scene.
It is the jury's role, not an appellate court's, to weigh the evidence. State v. Carey, 914 S.W.2d 406, 407 (Mo.App.1996). The jury was convinced beyond a reasonable doubt that defendant committed the robbery and, concurrent therewith, committed the offenses of armed criminal action and tampering in the first degree. This court will not disturb jury verdicts of guilty so long as the evidence meets the minimal appellate standard...
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