State v. King

• Court: Missouri Court of Appeals
• Writing for the Court: Mark D. Pfeiffer, Judge
• Citation: State v. King, 674 S.W.3d 218 (Mo. App. 2023)
• Docket Number: WD 85149
• Decision Date: 01 August 2023
• Parties: STATE of Missouri, Respondent, v. Antwoine R. KING, Appellant.

674 S.W.3d 218

STATE of Missouri, Respondent,

v.Antwoine R. KING, Appellant.

WD 85149

Missouri Court of Appeals, Western District.

OPINION FILED: August 1, 2023

Andrew Bailey, Attorney General, and Kristen S. Johnson, Assistant Attorney General, Jefferson City, MO, Attorneys for Respondent.

Kathryn Merwald, Senior Public Defender, Kansas City, MO, Attorney for Appellant.

Before Division One: Anthony Rex Gabbert, Presiding Judge, and Lisa White Hardwick and Mark D. Pfeiffer, Judges

Mark D. Pfeiffer, Judge

Mr. Antwoine King ("King") appeals from the judgment entered by the Circuit Court of Jackson County, Missouri, following a jury trial in which he was found guilty of two counts of robbery in the first degree, three counts of armed criminal action, one count of assault in the second degree, one count of resisting a lawful stop, and one count of unlawful possession of a firearm. He was sentenced by the trial court as a prior and persistent offender. King challenges his sentence as a persistent offender and the sufficiency of the evidence to support his convictions for first-degree robbery and unlawful possession of a firearm. We affirm.

Factual and Procedural Background¹

On June 7, 2019, a patrol officer of the Kansas City, Missouri, Police Department was dispatched on a robbery call to a Phillips 66, also known as the Bannister Road Food Mart. The officer interviewed the night clerk, who told him that three masked individuals, all black men, came into the store and robbed him at gunpoint. After one of the men took money out of the register, another put bottles of liquor, including E&J apple brandy, in a trash bag. The officer also reviewed the store's surveillance video, which showed the suspects leaving the store at 2:12 a.m.

Also on June 7, 2019, another investigative officer responded to an armed robbery report at a Snap and Go Gas Station on East Bannister Road in south Kansas City. The officer interviewed the female victim ("Victim"), who provided a description of the suspects’ vehicle, a four-door white Kia with a black roof and tinted windows, and partial license plate information. According to Victim, she and her boyfriend pulled into the Snap and Go around 2 a.m. on June 7, 2019. Two men approached their vehicle, one on each side, and pointed guns at them. One of the men pointed a 9-millimeter pistol at Victim, who was in the driver's seat, and the other man pointed a big gun that looked like an Uzi at Victim's boyfriend. The suspects told Victim to hand over everything that she had. She gave them "whatever I had on me." After the suspects robbed Victim and her boyfriend, they drove away in a white Kia Optima with a black top.

A third patrol officer ("Arresting Officer") was on patrol with his partner on June 7, 2019. When he started his shift, he learned that a white Kia Optima with a black top had been used in robberies overnight. During their patrol, the officers saw a vehicle that appeared to match that description. They followed the vehicle to 35^th Street and Park Avenue, and when the vehicle went over the hill, Arresting Officer heard multiple, rapid-firing gunshots. The passenger was out of the vehicle, actively shooting past the intersection.

At the same time, King's uncle was outside in the area of 35^th Street and Park Avenue in Kansas City with his great-nephews. King's uncle heard someone screaming, and when he turned around, he saw his nephew, King, standing about fifty feet away at the southeast corner of 35^th and Park, holding a handgun. King started shooting and shot about fifteen times. King's uncle pushed his great-nephews out of the way; he took cover behind a tree, but was shot in the left elbow. A police cruiser pulled up behind the car King was standing next to and turned on its siren. King's uncle heard the car speed off and then saw the cruiser follow.

Arresting Officer and his partner pursued the Kia. From 35^th and Park, the vehicle turned onto Prospect Avenue, speeding in and out of traffic. Shortly after almost hitting a city worker emerging from a manhole at 21^st Street, the driver pulled over and fled on foot. As soon as the driver exited, the passenger moved over into the driver's seat. Arresting Officer and his partner decided to continue to pursue the vehicle. The vehicle was going sixty miles per hour on Prospect Avenue where the speed limit was thirty-five or forty-five miles per hour. The vehicle weaved in and out of traffic and tried to make a left-hand turn at Eastwood Trafficway and Swope Parkway. The vehicle was going too fast; one of the tires hit a hole, and then the vehicle hit a light pole. The driver exited the vehicle and ran into the woods. The officers pursued him and took him into custody. The officers found a small black laser sight for a firearm in his pocket. The officers ultimately identified the person they arrested after this pursuit as King.

An Investigative Officer was dispatched to the intersection of 34^th and Park. The Investigative Officer located several shell casings at the intersection and took photographs of five .40 caliber shell casings along the north side of 35^th and Park and an additional ten .40 caliber shell casings on the southeast corner of the intersection, and additional three .40 caliber shell casings 25 feet east off the south side of 35^th and Park.

Thereafter, a robbery unit Detective obtained a search warrant for the Kia. Inside the vehicle was E&J liquor, a box of .40 caliber ammunition, two handguns, and a pair of tennis shoes with black soles, white tops, and red laces. The Detective also interviewed King's uncle at the hospital. The Detective showed King's uncle two photographs—a still shot of the robbery at the Snap and Go, and a Department of Revenue photo of King—and King's uncle identified King in both photographs. When King was arrested on June 7, 2019, the police recovered a blue Nike jacket and gray sweatshorts. When the Detective viewed the surveillance videos of the robberies, he observed that one of the three armed men wore a blue hoodie, a white T-shirt, gray shorts, and white, red, and black tennis shoes. In the Food Mart video, the black handgun in the left hand of the suspect wearing the blue jacket was consistent with the firearm found in the backseat of the Kia. In the Snap and Go video, the suspect wearing the blue jacket was holding a Mac-11 assault-style sub-machine gun.

King was charged with:

• robbery in the first degree in that he "forcibly stole U.S. currency and liquor in the possession of Food Mart and in the course thereof ... was armed with a deadly weapon" (Count I);

• armed criminal action in that he "committed the foregoing felony of Robbery in the 1st Degree by, with and through, the knowing use, assistance and aid of a deadly weapon" (Count II);

• robbery in the first degree in that he "forcibly stole a cell phone and U.S. currency in the possession of [Victim], and in the course thereof the defendant was armed with a deadly weapon" (Count III);

• armed criminal action in that he "committed the foregoing felony of Robbery in the 1st Degree by, with and through, the knowing use, assistance and aid of a deadly weapon" (Count IV);

• assault in the second degree in that he "recklessly caused physical injury to [King's uncle] by means of discharge of a firearm" (Count V);

• armed criminal action in that he "committed the foregoing felony of Assault in the Second Degree by, with and through, the knowing use, assistance and aid of a deadly weapon" (Count VI);

• resisting a lawful stop in that "law enforcement officers, were attempting to make a lawful stop of defendant, and the defendant knew or reasonably should have known that the officers were making a lawful stop, and, for the purpose of preventing the officers from effecting the stop, resisted the stop of defendant by fleeing from the officers[,] and defendant fled in such a manner that created a substantial risk of serious physical injury or death to other persons in that defendant drove the vehicle at high rates of speed through heavily populated residential and commercial neighborhoods, running multiple stop signs and red lights" (Count VII);

• unlawful possession of a firearm in that he "knowingly possessed a black ‘Mac-11’ type sub-compact machine pistol, a firearm, and on August 16, 2016[,] the defendant was convicted of the felony of Robbery in the 2nd Degree in the 16th Circuit of Jackson County" (Count VIII).

On October 8, 2020, the State was granted leave to file an information in lieu of indictment, adding allegations that King was a prior and persistent offender and punishable by sentence to an extended term of imprisonment in that he had been convicted of two or more felonies committed at different times. Specifically, the State alleged that in case number 1516-CR03677-01, on or about August 16, 2016, King was convicted of the felonies of robbery in the second degree and armed criminal action in the Circuit Court of Jackson County, Missouri, for events that occurred on October 13, 2015; and in case number 1516-CR03635-01, on or about August 16, 2016, King was convicted of the felonies of robbery in the second degree and armed criminal action in the Circuit Court of Jackson County, Missouri, for events that occurred on April 12, 2015.

King did not testify or present any evidence at trial. King moved for acquittal at the close of all the evidence, which the trial court denied. The jury found King guilty as charged. King filed a motion for judgment of acquittal or, in the alternative, for a new trial. The trial court denied the motion.

At the sentencing hearing conducted by the trial court on December 7, 2021, the following colloquy took place:

THE COURT: Refresh my memory so I don't have to dig through the Court's file, this is court sentencing, correct? Mr. King is a prior, is he also a persistent offender?

[PROSECUTOR]: He is, Judge.

THE COURT: Okay. And we found both of those?

[PROSECUTOR]: That's my recollection.

THE COURT: That's my recollection as

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