State v. Jackson, 43802

Decision Date07 December 1982
Docket NumberNo. 43802,43802
Citation645 S.W.2d 725
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Jerry JACKSON, Defendant-Appellant.
CourtMissouri Court of Appeals

James C. Jones, St. Louis, for defendant-appellant.

John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, George Peach, Circuit Atty., St. Louis, for plaintiff-respondent.

DOWD, Judge.

Defendant's jury trial on separate counts of escape from custody and carrying a concealed weapon resulted in his conviction of both and concurrent sentences of seven years imprisonment. On appeal defendant contends the evidence was insufficient to support the verdict on each charge, and further alleges errors with regard to submission of an instruction, denial of his motion to sever counts, and denial of his motion to dismiss for failure to grant a speedy trial. We affirm.

In his first two points, defendant contends the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence as to each count. To consider these challenges to the sufficiency of the evidence, we set forth the facts and reasonable inferences therefrom in the light most favorable to the verdicts, and we disregard all contrary evidence. State v. Smith, 527 S.W.2d 731, 732 (Mo.App.1975).

On September 26, 1979, Officers Schmittgens and Wood investigated a vehicle accident. Defendant, who identified himself as William Wright, was a party to the accident. An ambulance transported him to City Hospital No. 1 because he complained of chest pain. Beth Chagnon, a nurse in the emergency room, asked defendant to remove his shirt for x-rays. He refused initially but later complied, revealing a revolver as he moved it from his waistband to his left front trousers pocket. After the nurse took defendant to the x-ray room, she called the police and notified the hospital security guard. The guard took the revolver from defendant and shortly thereafter turned it over to Officers Schmittgens and Wood. Officer Wood placed defendant under arrest for carrying a concealed weapon, checked the x-ray room, and waited outside while a technician x-rayed defendant. When Wood saw the technician take the x-rays into an adjoining room, he went into the x-ray room and discovered that defendant had exited through a window. The officers subsequently found a rent receipt bearing defendant's name in the pocket of the shirt defendant had removed. Police apprehended defendant on January 23, 1980.

Pursuant to Section 575.200, RSMo 1978, "[a] person commits the crime of escape from custody if, while being held in custody after arrest for any crime, he escapes from custody." Defendant concedes that Officer Wood arrested him and for a short time held him in custody. Defendant contends, however, that when Wood left the room during the x-ray examination, he either abandoned custody or transferred custody to the technician. Defendant argues that he therefore did not commit the crime of escape from custody because he was not in custody when he left the hospital. Defendant relies on State v. Burris, 346 S.W.2d 61 (Mo.1961), wherein the court held that a person who was transferred from a state prison to a state mental hospital for "custody, care and treatment" and who later escaped from the hospital could not be charged under a statute making it a crime to escape the custody of the Department of Corrections. A major distinction is that the custody of the defendant in Burris had been officially transferred prior to his escape. The custody of defendant in the instant case was neither abandoned nor transferred; it remained with the arresting officer who waited outside the door so as to confine defendant to the x-ray room and who did not grant defendant permission to leave. "Custody" includes one person's exercise of control over another to confine the other person within certain physical limits. State v. Hahn, 625 S.W.2d 703, 705 (Mo.App.1981). A person can be in custody even though his guard is several yards away. State v. Lorenze, 596 S.W.2d 762, 764 (Mo.App.1980). We believe sufficient evidence supported the conclusion that when defendant left the x-ray room, he escaped from custody.

We also believe the evidence was sufficient to support a verdict of guilty on the charge of carrying a concealed weapon in violation of Section 571.115, RSMo 1978. 1 That charge requires proof of only two elements: (1) defendant's intention to carry a weapon concealed, and (2) concealment on defendant's person or in such close proximity as to be under his easy and convenient control. State v. Cole, 527 S.W.2d 646, 648 (Mo.App.1975). Defendant asserts that the evidence justifies a finding of concealment but not a finding of intention. When the evidence proves concealment, however, an inference of intent to conceal arises from the act of concealment. State v. Jordan, 495 S.W.2d 717, 720 (Mo.App.1973). The trial court did not err in overruling defendant's motion for judgment of acquittal.

Defendant's third point is that the trial court erred in giving Instruction No. 9 defining "custody." Since defendant claimed he was not "in custody" at the time of his escape, he contends that the instruction assumed a disputed fact, constituted a comment on the evidence, and deprived the jury of its fact-finding function. Defendant failed, however, to specifically object to the instruction either at trial or in his motion for new trial; he therefore has not preserved any error for review. Rule 28.03; State v. Martin, 620 S.W.2d 54, 55 (Mo.App.1981). Although defendant asks us to consider this point under the plain error rule, "plain error does not result in connection with instructions unless the court has so misdirected or failed to instruct the jury on the law of the case as to cause manifest injustice." State v. Murphy, 592 S.W.2d 727, 733 (Mo. banc 1979). The trial court submitted Instruction No. 5, a verdict director on the charge of escape from custody, in the form of MAI-CR 29.72. The court then complied with that instruction's Note on Use 4, which requires the court to define "custody" in a separate instruction upon the proper written request of the state or the defendant. Instruction No. 9 defined "custody" in accordance with MAI-CR 33.01 and was submitted upon the state's request. No manifest injustice resulted. Point denied.

Defendant next alleges error in the overruling of his motion to...

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