State v. Moon

• Decision Date: 08 July 1980
• Docket Number: No. WD30989,WD30989
• Citation: 602 S.W.2d 828
• Parties: STATE of Missouri, Plaintiff-Respondent, v. David L. MOON, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 828

602 S.W.2d 828

STATE of Missouri, Plaintiff-Respondent, v. David L. MOON, Defendant-Appellant.

No. WD30989.

Missouri Court of Appeals, Western District.

July 8, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Aug. 4, 1980.

Application to Transfer Denied Sept. 9, 1980.

Jon Krebbs, Asst. Public Defender, Seventh Judicial Circuit, Liberty, for defendant-appellant.

John Ashcroft, Atty. Gen., Jefferson City, Darrell Panethiere, Asst. Atty. Gen., Kansas City, for plaintiff-respondent.

Before Clark, P. J., and DIXON and SOMERVILLE, JJ.

DIXON, Judge.

This is an appeal from a judgment of the Circuit Court of Clay County. A jury found David L. Moon guilty of attempted robbery in the first degree and assessed punishment at five years imprsionment.

The occurrence giving rise to the charge took place in a savings and loan association. Diana Foland and Sara Gregory, tellers at the bank, and a bank supervisor, Max Blevin, were witnesses to the events.

Miss Foland approached the defendant when he called her over to the window where he was standing. His hand was in the pocket of his jacket, and he caused Miss Foland to believe he carried a gun after he "pointed it up" and "moved it around" at her. He then asked Miss Foland for money and stated several times he was "not bullshitting" her. When Miss Foland started to open the money drawer, defendant told her he was "just kidding," and he didn't want her "to say anything to anybody." Defendant pulled his hand out of his pocket, thus revealing he was not armed; but until that time, she believed he was serious. Defendant then asked Miss Foland for street directions. Being quite upset, she had another teller help him and then went to the rest area.

Defendant took a seat at the front of the office. Having been informed that defendant had caused a disturbance, Blevin approached defendant and initiated a casual conversation. Blevin "turned his back," and defendant walked over to Miss Gregory's window and began talking with her. Blevin noticed that defendant's hand was in his coat pocket on the counter, but could not tell whether defendant was carrying a gun.

Miss Gregory was told by defendant that he had a gun in his pocket. She asked to see the gun, but he refused to show it "because then everybody else in the bank would see it." When Miss Gregory motioned to Blevin for help, defendant removed his hand from the pocket, and Miss Gregory noticed he was unarmed.

Upon being signaled by Miss Gregory, Blevin indicated to the head teller to sound the alarm. This was misinterpreted, and the teller took a photograph of defendant instead. Miss Gregory stated defendant became quite nervous after she called for Blevin.

Miss Gregory commented to Blevin, "Do you want to hear about the practical joke this fellow is trying to pull on us?" Blevin said he thought the defendant indicated he "just wanted to see what the teller would do if he would cause some kind of excitement."

Blevin took defendant to the branch manager, and defendant was reprimanded for his actions. Defendant asked the men not to call the police because he was just having fun. When this conversation terminated, defendant was escorted out of the bank. He made his "escape" from the scene by walking to a bus stop and waiting for a bus to return to his home at the Helping Hand Institute.

Defendant was interviewed later that afternoon at police headquarters. In a statement, defendant acknowledged his part in the events which occurred earlier that day. Defendant again stated his actions were motivated by a curiosity to see what type response would be elicited.

Defendant elected to testify and corroborated the State's evidence. When asked by counsel if he had anything further to say, he stated that Satan had inspired him to commit this "very spontaneous, bizarre crime." He further testified that he had been arrested before, once for indecent exposure, and once for molesting a minor; but he had never been convicted. These arrests resulted in mental examinations, but he was always, according to his testimony, given "a clean bill of health."

At the close of the State's evidence, defendant moved for a directed verdict of acquittal, raising the issue of the sufficiency of the evidence to show an intent to commit the crime. A claim of error in the refusal of this motion is the only point raised in the defendant's brief on appeal.

In testing the sufficiency of the evidence by motion for judgment of acquittal, facts and favorable inferences reasonably drawn therefrom must be considered in the light most favorable to the State, and all inferences and evidence contrary must be disregarded. State v. Crews, 585 S.W.2d 131 (Mo.App.1979); State v. Longmeyer, 566 S.W.2d 496 (Mo.App.1978); State v. Strong, 484 S.W.2d 657 (Mo.1972). Review is limited to whether the evidence is sufficient to make a submissible case, State v. Longmeyer, supra; State v. Gamache, 519 S.W.2d 34 (Mo.App.1975); State v. Strong, supra, and whether there is sufficient evidence from which reasonable persons could have found defendant guilty. State v. Longmeyer, supra; State v. Johnson, 510 S.W.2d 485 (Mo.App.1974). Substantial evidence means evidence from which the trier of facts reasonably could find the issue in harmony therewith. Kansas City v. Oxley, 579 S.W.2d 113 (Mo. banc 1979); State v. Taylor, 445 S.W.2d 282 (Mo.1969); State v. Chastain, 585 S.W.2d 562 (Mo.App.1979).

The gist of defendant's complaint is that there is no substantial evidence proving defendant's culpable state of mind. Intent, as an element of an offense, is generally not susceptible of direct proof and may be established by circumstantial evidence or inferred from surrounding facts. State v. Gannaway, 313 S.W.2d 653 (Mo.1958); Kansas City v. Reeves, 553 S.W.2d 548 (Mo.App.1977); State v. Holliday, 546 S.W.2d 38 (Mo.App.1976). An inference as to defendant's culpable state of mind is strongly supported by the following:

1. Defendant's giving the appearance of being armed;

2. His statements that he wanted money and that he wasn't "bullshitting."

The jury could reasonably conclude, based on these facts, that defendant did intend to rob the bank. A jury is permitted to draw from the evidence such reasonable inferences as the evidence will support. State v. Simone, 416 S.W.2d 96 (Mo.1967); State v. Ciarelli, 366 S.W.2d 63 (Mo.App.1963). The jury was to decide whether defendant was playing a practical joke or whether he actually intended to rob the bank and whether, for some reason, he decided against it at the last moment.

A jury may believe or disbelieve all, part, or none of the testimony of any witness, including the testimony of defendant. State v. Easton, 577 S.W.2d 953 (Mo.App.1979); State v. Pinkus, 550 S.W.2d 829 (Mo.App.1977); State v. Wynn, 391 S.W.2d 245 (Mo.1965). Though defendant repeatedly stated the incident was a "joke," and he had no intention of stealing the money, he also revealed information which could have affected his credibility as a witness. Defendant testified that he had been arrested at least three times, including arrests for indecent exposure and for molesting a minor. These arrests led to the mental examinations at the Fulton State and St. Joseph Mental Hospitals. The State, in final argument and without objection by the defendant, used the defendant's admission of prior crimes and the subsequent mental examinations, not only for impeachment but to argue that defendant should be imprisoned, implying his propensity for sexual offenses might cause something "drastic" to happen. The trial court did not err in overruling defendant's motion for judgment of acquittal.

What has thus far been written would ordinarily dispose of the appeal. The record in this case, however, discloses two areas of constitutional error which lead to the inescapable conclusion that plain error has occurred and caused a manifest injustice. The first such error is a deprivation of due process under the Fifth and Fourteenth Amendments to the Constitution of the United States. The interlocking and mutual destructive error involves the denial of effective assistance of counsel in violation of the Sixth Amendment of the Constitution of the United States.

The Fifth Amendment error arises under the doctrine of Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). Before the trial of this case commenced, the trial judge inquired of counsel, out of the hearing of the jury, as follows:

"Gentlemen, the defendant in this case is David L. Moon. Mr. Moon has been before this Court previously on other charges, or, at least another charge. In connection with the other charge, if my memory is correct, he was committed to the Fulton State Hospital for mental evaluation, is that correct, Mr. ?

MR. (Defense counsel): Uh huh.

THE COURT: When that report came back I believe that they found that he was not suffering from mental disease or defect excluding responsibility.

MR. (Defense counsel): That's correct.

THE COURT: And they found further that he was able to assist his counsel in defense of his case at that time.

MR. (Defense counsel): That's correct.

THE COURT: And I would ask at this time is there a plea there's no plea in this case of not guilty by reason of mental disease or defect excluding responsibility?

MR. (Defense counsel): No there isn't, there is not.

THE COURT: All right, is there any reason, is there any information that you feel the Court should have in regard to Mr. Moon's mental condition at this time that might be important?

MR. (Defense counsel): Well, Your Honor, I'd like the record to show that I have discussed this matter with Mr. Moon and asked if he would like to have another evaluation at the Fulton State Hospital and he has declined that right. He has always been responsive when I've talked to him and he's been able to explain what went on at the time of the incident. He knew that at the time that he was there that it was...