State v. Kimball, 11546

• Decision Date: 10 March 1981
• Docket Number: No. 11546,11546
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Daniel E. KIMBALL, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 932

613 S.W.2d 932

STATE of Missouri, Plaintiff-Respondent, v. Daniel E. KIMBALL, Defendant-Appellant.

No. 11546.

Missouri Court of Appeals, Southern District, Division Two.

March 10, 1981.

Motion for Rehearing or Transfer Denied March 26, 1981.

Application to Transfer Denied May 11, 1981.

Loren R. Honecker, Springfield, for defendant-appellant.

John Ashcroft, Atty. Gen., Paul M. Spinden, John M. Morris, III, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.

HOGAN, Judge.

A jury found Daniel E. Kimball guilty of first-degree robbery as defined and denounced by § 560.120, RSMo 1969, now repealed. The trial court determined that the Second Offender Act, § 556.280, RSMo 1969, also now repealed, was applicable and assessed defendant Kimball's punishment at imprisonment for a term of 50 years. Defendant appeals.

The sufficiency of the evidence to support the judgment of conviction has not been questioned. Nevertheless, this is defendant's appeal of constitutional right, Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), and defendant had a due-process right to have the State present evidence from which any rational trier of fact could find the essential elements of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979). The sufficiency of the evidence to support a conviction of first-degree robbery will therefore be considered. Nothing said in Jackson alters the rule that the State is entitled to that construction of the evidence most favorable to the result reached. State v. Letterman, 603 S.W.2d 951, 952-953(3) (Mo.App.1980). ¹

On October 31, 1978 Halloween Michael Dodd was working at the MFA Oil Company, a service station in the south part of Springfield, Missouri. Dodd was alone. About 7 p. m. a man, unequivocally identified by Dodd as the defendant, entered the station. Although it was not particularly cool, Dodd noticed the defendant was wearing a "creamish-looking" trench coat. The defendant walked over the the cash register; Dodd asked "if (he) could help" the defendant. Kimball answered "Yes, you can," and "flipped his coat open," exposing a sawed-off shotgun "pointed straight at" Dodd. Kimball then ordered Dodd to open the cash register. Dodd obeyed. Defendant then took the contents of the register, about $156. Dodd testified that the money taken belonged to his employer and was in his possession as an employee. The defendant then ordered Dodd to "go outside" the station. The two men walked some distance away from the station; Kimball then told Dodd to "turn back toward (the station) and run like hell." Dodd ran back to the station and "called the law." During the course of his examination, Dodd also testified concerning his state of mind during the incident, as follows:

" * * *

Q. At the time ... the money was taken from the cash register, was this with or against your will?

A. Well, the shotgun was on me, I'd call it against my will.

Q. And at the time the money was taken from the cash register, state whether or not it was because you feared some immediate injury to your person.

A. I mean, I wasn't going to fight ... with him with that shotgun in his hand, no way.

Q. Well, you're telling us you were in fear then?

A. Yeah Yeah.

* * * "

The State also had evidence from one Jimmie Hamilton, defendant's brother-in-law, who testified as an immunity witness. Jimmie's sister Gladys (defendant's wife) had introduced Jimmie to the defendant "a couple of weeks" before the robbery was committed. Kimball indicated "he was wanting a shotgun." Jimmie "borrowed" a shotgun from a friend and "took it home and sawed it off," stock and barrel. The shotgun was then disassembled and the parts were concealed in a "console" in Kimball's car.

Early in the evening on October 31, 1978, Jimmie, Gladys and the defendant left Jimmie's residence and drove to a "truck stop" in north Springfield. At the truck stop the three "drunk some coffee." There "was talk" about "going to the service station" and Kimball observed "It was (Gladys') birthday and he was going to get her something for her birthday."

Jimmie, Gladys and the defendant then left the truck stop in the defendant's car. Kimball was driving; Gladys was seated next to him and Jimmie was "in the back." The defendant drove to a place near the MFA Oil Company and parked his car. According to Jimmie, Kimball was wearing a trench coat. Jimmie also remembered that Kimball took the shotgun from the "console" before he got out of the car. Defendant then left, was gone for a short time and returned "running." The defendant told Jimmie and Gladys "We have to get out of here." Kimball, Gladys and Jimmie then went directly to a residence in north Springfield.

Section 560.120, RSMo 1969, proscribed one offense which might be committed by several different methods. State v. Montgomery, 109 Mo. 645, 647, 19 S.W. 221, 222 (1892). For the purposes of this case, the elements of the offense with which the defendant was charged may be identified by setting out the pertinent sections of the statute. In material part, § 560.120 read:

"Every person who shall be convicted of feloniously taking the property of another ... in his presence, and against his will ... by putting him in fear of some immediate injury to his person ... shall be adjudged guilty of robbery in the first degree."

In the case at hand, it may be said that the State was obliged to prove that Kimball: (1) Feloniously took (2) the property of another (3) in his presence (4) against his will (5) by putting him in fear of some immediate injury to his person. In addition the State was obliged to prove the defendant's criminal agency. See State v. Meidle, 202 S.W.2d 79, 81 (Mo.1947); State v. Gillman, 329 Mo. 306, 312, 44 S.W.2d 146, 148(5) (1931).

The testimony we have summarized was of itself sufficient to support the judgment of conviction. The word "feloniously," as used in § 560.120, merely classified the offense; it did not denominate a distinct element of the crime denounced. State v. Harris, 313 S.W.2d 664, 669(4) (Mo.1958). The required "taking" was provided by Dodd's testimony. At gunpoint, Dodd opened the cash register. Kimball removed the money from the register and reduced it to possession. There was a "taking" within the intent of § 560.120. State v. Murray 280 S.W.2d 809, 812(6) (Mo.1955); State v. Thomas, 525 S.W.2d 833, 834-835(1-3) (Mo.App.1975). Dodd further testified that the money taken was in his possession as an employee of the MFA Oil Company. Kimball therefore took the "property of another"; a taking from an employee in possession is a taking from the employer. State v. Montgomery, 181 Mo. 19, 26-27, 79 S.W. 693, 695 (1904).

Was the money taken "in (Dodd's) presence?" Dodd stated that he "backed away" from the cash register when he saw the shotgun; he was about "(t)hree or four foot" from the defendant when the money was taken. This evidence was sufficient to prove the money was taken "in (Dodd's) presence." State v. Eddy, 199 S.W. 186, 188 (Mo.1917); W. LaFave and A. Scott, Criminal Law 696 (1972). Dodd's testimony that the robbery was committed "against his will" has been set out and need not be repeated. The State's proof directed to the final element fear of immediate injury is amply sufficient. Dodd stated directly and unequivocally that he was put in fear, but such testimony was not absolutely necessary. The evidence of compliance and submission at gunpoint permitted the jury to infer that the victim was put in fear of immediate injury to his person. State v. Reeder, 394 S.W.2d 355, 359 (Mo.1965); State v. Ray, 354 S.W.2d 840, 843 (Mo.1962). As noted, a judgment of conviction must be supported by evidence of the defendant's criminal agency. This is not a case, however, in which the defendant's criminal agency is a substantial issue. At the trial, Dodd identified Kimball as the man who committed the robbery. The in-court identification was neither irresolute nor uncertain. When Dodd's testimony is considered with that of Jimmie Hamilton, it is apparent defendant's criminal agency was established beyond a reasonable doubt. The State fully complied with the mandate of Jackson v. Virginia, supra, 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573.

The first point briefed and argued is that the trial court erred in receiving State's exhibits 1, 2 and 4 in evidence because those exhibits were the product of an unreasonable search and seizure conducted in violation of defendant's Fourth and Fourteenth Amendment rights. State's exhibit 1 is a sawed-off shotgun. ² State's exhibit 2 is a shell taken from the shotgun and State's exhibit 4 is defendant's wallet. These exhibits were taken from the automobile defendant was driving when he was arrested.

Fairly paraphrased, defendant's contention is that: 1) State's exhibits 1, 2 and 4 were incident to and the product of an unlawful arrest because the defendant was arrested without probable cause; 2) If the arrest was lawful, the search incident thereto was impermissibly broad; 3) State's exhibits 1, 2 and 4 were the products of an unreasonable search and seizure because the officers who searched the automobile had neither a warrant nor grounds to conduct a warrantless search. Fair consideration of this point and the other point briefed requires a statement of some evidentiary detail.

Some general principles concerning "probable cause" to arrest must be borne in mind. Probable cause to arrest exists when the facts and circumstances within the officers' knowledge and of which they have reliable and trustworthy information would warrant a man of reasonable caution to believe that the person being arrested had committed the crime for which he has been taken in custody. Ker v. California, 374 U.S. 23, 34-35, 83 S.Ct. 1623, 1630-1631, 10 L.Ed.2d 726, 739 (1963) (separate opinion); State v. Moore, 580 S.W.2d 747, 749 (Mo. banc 1979);...