State v. McGee

• Decision Date: 01 April 1980
• Docket Number: No. 40082,40082
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Bobby Joe McGEE, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 709

602 S.W.2d 709

STATE of Missouri, Plaintiff-Respondent, v. Bobby Joe McGEE, Defendant-Appellant.

No. 40082.

Missouri Court of Appeals, Eastern District, Division One.

April 1, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

June 20, 1980.

Application to Transfer Denied Sept. 9, 1980.

Karl F. Lang, Lang & O'Keefe, St. Louis, for defendant-appellant.

John Ashcroft, Atty. Gen., Peter T. Sadowski, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

SNYDER, Judge.

Appellant Bobby Joe McGee was convicted of assault with intent to do great bodily harm without malice, § 559.190, RSMo 1969, and armed criminal action, § 559.225, RSMo Supp.1976. He was sentenced to terms of five and three years' imprisonment to be served consecutively.

On appeal he alleges the trial court erred because it: (1) denied his motion for a judgment of acquittal for lack of a submissible case; (2) subjected him to double jeopardy in overruling his motion to dismiss the armed criminal action charge; (3) refused to give to the jury alibi instruction MAI-CR 3.22 requested by him; and (4) allowed into evidence testimony concerning blood stains and a knife found in his automobile, neither having been shown to be connected with the assault.

Reversed as to the armed criminal action conviction because appellant was subjected to double jeopardy; reversed and remanded as to the assault conviction because the trial court's refusal to give the alibi instruction requested by appellant was prejudicial error.

The victim was walking from a bar to her home in South St. Louis when she was assaulted by a man who forced her into the car he was driving by threatening her with a knife and cutting her hands. He then drove off with her. When the car slowed for an intersection the victim opened the door, started to get out, but was held in the car by her assailant while the car moved along with her feet dragging on the ground. The driver finally stopped the automobile, the victim fell to the ground and her assailant stood over her threatening her with a knife if she did not get back in the car. He then stabbed the victim in the chest and side as she fought against being dragged back into the car.

Two men in another automobile had seen the victim hanging out of the car, followed it until it stopped, then drove up and stopped about thirty feet behind it. As the two men started to approach the scene on foot, the assailant re-entered his car and drove off, leaving his victim lying on the ground. One of the witnesses obtained the license number.

A license check revealed appellant's father owned the vehicle. Appellant had been driving it at the time of the assault and was arrested for the crime. He was positively identified by the victim as her assailant. Appellant's defense was alibi. He claimed to have been at the River's Edge tavern in Fenton and there was evidence to support his claim. The trial and conviction followed.

Appellant argues the trial court erred in denying his motion for a judgment of acquittal because the state failed to make a submissible case.

In determining whether a submissible criminal case has been made, an appellate court considers as true the evidence and reasonable inferences most favorable to the state and disregards evidence and inferences to the contrary. State v. Franco, 544 S.W.2d 533, 534(1-4) (Mo. banc 1976); State v. Longmeyer, 566 S.W.2d 496, 499(1-8) (Mo.App.1978).

The positive identification of appellant by the victim, and the recording of the license number of appellant's car by a witness, constituted substantial evidence from which the jury could have found appellant guilty. It is true that conflicting descriptions of appellant and his automobile were testified to by witnesses. But the weight to be given this testimony was for the jury. State v. Brager, 497 S.W.2d 181, 182(2) (Mo.1973); State v. Tilley, 569 S.W.2d 346(2, 3) (Mo.App.1978). There was sufficient evidence when considered in the light most favorable to the state to make a submissible case. State v. Franco, State v. Longmeyer, supra.

Appellant next claims he was placed in double jeopardy in violation of his common law and Fifth Amendment rights because he was convicted of both assault with intent to do great bodily harm without malice ¹ and armed criminal action. ² This point is well taken.

The conviction for armed criminal action required that the appellant first be found guilty of the offense of assault with intent to do great bodily harm without malice and, second, be found to have committed the crime with a knife. All of the elements of the underlying felony had to be proved in order to find appellant guilty of the offense of armed criminal action. Therefore, he was subjected to double jeopardy for the same offense. Sours v. State, 593 S.W.2d 208 (Mo. banc 1980). See also State v. Morgan, 592 S.W.2d 796 (Mo. banc 1980). In Sours the supreme court found that armed criminal action and the underlying felony, in that case robbery in the first degree, were the same offense for double jeopardy purposes, specifically overruling, on this point, State v. Treadway, 558 S.W.2d 646 (Mo. banc 1977), cert. denied 439 U.S. 838, 99 S.Ct. 124, 58 L.Ed.2d 135 (1978), which is relied upon by the state in its brief.

The supreme court in Sours followed Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) reversing Harris v. State, 555 P.2d 76 (Okl.Cr.App.1976). The court interpreted Harris as requiring a finding that armed criminal action under the statute and the underlying felony, even though it violated a different statute, constitute only one offense and not two.

In Sours the state was required to prove all of the elements of robbery first degree in order to prove the defendant guilty of armed criminal action. Similarly, in the case under review, it was necessary to prove all of the elements of intent to do great bodily harm in order to prove armed criminal action. Therefore, the conviction for armed criminal action must be reversed.

Appellant next contends the trial court erred in refusing to give to the jury alibi Instruction No. "A" requested by him in the form set out as MAI-CR 3.22:

INSTRUCTION NO. "A"

(In pertinent part. The first two paragraphs are the same as those in MAI-CR 3.20 given by the court and quoted below.)

"2. If the defendant was at the River's Edge Lounge, 4 Gravois Road, Fenton, Missouri, 63026, at the time the alleged offense was committed or if you do not find and believe from the evidence beyond a reasonable doubt that the defendant was present at the time and place the offense is alleged to have been committed, then you must find the defendant not guilty."

Instead, the court gave MAI-CR 3.20:

"INSTRUCTION NO. 11

One of the issues in this case is whether the defendant was present at the time and place the offenses are alleged to have been committed. On that issue you are instructed as follows:

1. The state has the burden of proving beyond a reasonable doubt that the defendant was present at the time and place the offenses are alleged to have been committed.

2. If the evidence in this case leaves in your mind a reasonable doubt regarding the defendant's presence at the time and place the offenses are alleged to have been committed, then you must find the defendant not guilty."

The trial court erred in refusing to give the alibi instruction requested by appellant, the error was prejudicial, and the cause must be reversed and remanded for a new trial on the assault charge.

MAI-CR 3.20 must be given, if requested in the manner provided in Rule 28.02, formerly 20.02, unless MAI-CR 3.22 is requested by a defendant. ³ By requesting MAI-CR 3.22 a defendant submits to the jury in a positive way that he was at a specific place other than the scene of the crime at the time the crime was committed. Notes on Use 2,...