State v. Jones

• Decision Date: 27 October 2009
• Docket Number: No. ED 91669.,ED 91669.
• Citation: 296 S.W.3d 506
• Parties: STATE of Missouri, Respondent, v. Tommie L. JONES, Appellant.
• Court: Missouri Court of Appeals

296 S.W.3d 506

STATE of Missouri, Respondent, v. Tommie L. JONES, Appellant.

No. ED 91669.

Missouri Court of Appeals, Eastern District.

October 27, 2009.

Gwenda R. Robinson, St. Louis, MO, for Appellant.

Chris Koster, Attorney General, Richard A. Starnes, Asst. Attorney General, Jefferson City, MO, for Respondent.

ROBERT G. DOWD, JR., Judge.

Tommie Jones ("Defendant") appeals from the judgment upon his convictions for first-degree robbery, Section 569.020 RSMo 2000¹, armed criminal action, Section 571.015, and resisting arrest, Section 575.150. Defendant argues the trial court (1) erred in overruling his motion for judgment of acquittal at the close of all of the evidence because there was no evidence to support the allegation that he was a principal actor in committing the charges of first-degree robbery and armed criminal action, (2) plainly erred in submitting jury instruction numbers 11 and 12 because they failed to comply with MAI-CR3d 304.04 and were not supported by the evidence, and (3) plainly erred in removing the issue of punishment from the jury and sentencing Defendant as a prior felony offender under Section 558.016. We affirm as modified.

The following evidence was adduced at trial. Mary Kathleen Becherer, the victim of the robbery charged in this case, was walking home from having dinner with her husband, Bruce Bailey. Mr. Bailey was driving home. As Mr. Bailey was pulling out of his parking spot, Uvone Ward came running by at a very high rate of speed. Mr. Bailey then got out of his car and saw Ms. Becherer, who was yelling "he has my stuff" and that "he has a gun." Mr. Bailey watched Ward run and get into the passenger side of a maroon full-size pick-up truck, which drove away at a high rate of speed.

Later, the police observed a maroon full-size pick-up truck, which matched the description of vehicle that had been involved in two robberies earlier in the evening. The police began following the truck in an unmarked vehicle. Subsequently, the police turned on their lights and siren to pull the vehicle over. Instead of pulling over, the vehicle took off at a very high rate of speed. The police chased the vehicle, which slowed shortly thereafter. At this point, the police saw the passenger, Ward, throw an object, which appeared to be a pistol, out the window. Next the truck stopped and Ward got out and ran. The truck then sped off again and the police followed the truck. The truck eventually stopped, and the police apprehended the driver, Defendant. Before the police asked Defendant anything, he uttered "I didn't rob anybody" or "I didn't rob anyone."

Defendant was convicted of first-degree robbery, armed criminal action, and resisting arrest. Defendant was sentenced to twenty years of imprisonment for the robbery, a concurrent term of twenty years of imprisonment for the armed criminal action, and a concurrent term of four years of imprisonment for resisting arrest.

Defendant filed motions for judgment of acquittal at the close of the State's evidence and at the close of all evidence. Both of these motions were denied. Defendant also filed a motion for new trial, which was denied. This appeal follows.

In his first point, Defendant argues the trial court clearly erred in overruling his motion for judgment of acquittal at the close of all of the evidence because there was insufficient evidence to support Defendant's convictions of first-degree robbery and armed criminal action in that Jury Instruction Numbers 11 and 12 allowed a finding of guilt only if the jury believed "[Defendant], acting with [] Ward" committed the conduct elements of the offenses. Defendant contends there was no evidence to support the allegation that he was a principal actor in the charged offenses. We disagree.

Initially, we note that Defendant is challenging the overruling of his motion for judgment of acquittal at the close of all of the evidence, which occurred before the jury was instructed. Thus, we will evaluate Defendant's first point on the basis of whether there was sufficient evidence to submit the first-degree robbery and armed criminal action cases against Defendant to the jury without regard for the effect of instructions 11 and 12. We will deal with the alleged instructional error in Defendant's second point.

We will affirm a trial court's denial of a motion for judgment of acquittal if, at the close of all evidence, there was sufficient evidence from which reasonable persons could have found the defendant guilty of the charged offense. State v. Hoosier, 267 S.W.3d 767, 770 (Mo.App. S.D.2008). We review the denial of a motion for judgment of acquittal to determine if the State adduced sufficient evidence to make a submissible case. Id. The State may prove its case by presenting either direct or circumstantial evidence connecting the defendant to each element of the crime. Id. Circumstantial evidence is given the same weight as direct evidence and the jury is free to make reasonable inferences from the evidence presented. Id. When reviewing a challenge to the sufficiency of evidence supporting a criminal conviction, we are limited to a determination of whether sufficient evidence was presented at trial from which a reasonable juror might have found the defendant guilty of the essential elements of the crime beyond a reasonable doubt. State v. Wurtzberger, 265 S.W.3d 329, 335 (Mo. App. E.D.2008). In applying this standard of review, we accept as true all of the evidence favorable to the state, including all favorable inferences drawn from the evidence, and disregard all evidence and inference to the contrary. Id. The court does not act as a "super juror" with veto powers over the conviction, but rather gives great deference to the trier of fact. Id.

A conviction for first-degree robbery in this case requires the State to show Defendant, acting in concert with another, forcibly stole property from another while using or threatening the use of what appeared to be a deadly weapon. Section 569.020. Further, a conviction for armed criminal action in this case requires the State to show Defendant, acting in concert with another, committed first-degree robbery with the assistance of a deadly weapon. Section 571.015. Missouri has eliminated the distinction between principals and accessories, and now, all persons who act in concert to commit a crime are equally guilty. State v. Beggs, 186 S.W.3d 306, 313 (Mo.App. W.D.2005). To make a submissible case of accomplice liability, the State has to show that the defendant associated himself with the venture or participated in the crime in some manner, but does not have to show that he personally committed every element of the crime. Id. Any evidence that shows affirmative participation in aiding the principal to commit the crime is sufficient to support a conviction. Id.

The evidence showed Ward robbed Ms. Becherer at gunpoint and then ran and got into the passenger side of a maroon full-size pick-up truck, which then sped away.

The evidence shows Defendant was later seen driving with Ward in a maroon full-size pick-up truck. When the police tried to stop the truck, Defendant tried to get away. During the chase, Defendant slowed so Ward could throw a gun out the window and then so he could flee on foot. Defendant tried to get away from the police by driving at a high rate of speed, but the police eventually caught him. When he was apprehended before the police asked him any questions, Defendant stated "I didn't rob anybody" or "I didn't rob anyone," which showed his awareness that the police were chasing him because of his connection to a robbery.

A defendant's flight upon realizing the presence of police can constitute evidence of guilt. State v. Morris, 41 S.W.3d 494, 497 (Mo.App. E.D.2000). Further, proof that the defendant knew the principal actor had robbed someone and that the defendant acted as a getaway driver is sufficient evidence of participation to support a finding of accomplice liability. State v. Meuir, 138 S.W.3d 137, 144 (Mo.App. S.D.2004). We find there was sufficient evidence to show that Defendant acted as an accomplice with Ward in committing first-degree robbery and armed criminal action.

Therefore, the trial court did not err in overruling Defendant's motion for judgment of acquittal at the close of all of the evidence. Point denied.

In his second point, Defendant argues the trial court plainly erred in submitting jury instruction numbers 11 and 12 because they failed to comply with MAI-CR3d 304.04 and were not supported by the evidence in that: (1) the instructions ascribed conduct elements of the offenses to Defendant and submitted that Defendant acted with Ward in committing the offenses when Defendant was not present during the commission of the offenses, but was merely the driver of the getaway car; and (2) the instructions did not require the jury to find Defendant had the required mental state for the purpose of promoting or furthering the commission first-degree robbery and armed criminal action. We disagree.

Initially, we note that instruction number 10 provided: "A person is responsible for his own conduct and he is also responsible for the conduct of another person in committing an offense if he acts with the other person with the common purpose of committing that offense or if, for the purpose of committing that offense, he aids or encourages the other person in committing it."

Instruction number 11 provided:

As to Count 3, if you find and believe from the evidence beyond a reasonable doubt:

First, that on or about October 18, 2005, in the City of St. Louis, State of Missouri, [Defendant], acting with Uvone Ward, took a woman's purse and contents, which was property owned by Mary K. Becherer, and

Second, that [Defendant], acting with Uvone Ward, did so for the purpose of withholding it from the owner permanently, and

Third, that [Defendant], acting with Uvone Ward, in doing so used physical force on or against Mary...