State v. Murphy, 74524

Decision Date30 March 1999
Docket NumberNo. 74524,74524
Citation989 S.W.2d 637
PartiesSTATE of Missouri, Plaintiff/Respondent, v. Steven MURPHY, Defendant/Appellant.
CourtMissouri Court of Appeals

Gwenda R. Robinson, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

JAMES A. PUDLOWSKI, Presiding Judge.

Steven Murphy (Defendant) was charged with one count of robbery in the first degree (Count I), four counts of felonious restraint (Counts II, III, IV, and V), and one count of assault in the third degree (Count VI). Defendant was tried before a jury in the Circuit Court in the City of St. Louis. The jury found Defendant guilty on all counts. On June 4, 1998, Defendant was sentenced as a persistent misdemeanor offender under Section 558.016 RSMo (1994) 1 to terms of twelve years imprisonment on Count I, seven years imprisonment on Count II, seven years imprisonment on Count III, seven years imprisonment on Count IV, seven years imprisonment on Count V, and one year imprisonment on Count VI, the sentences to run concurrently. This appeal followed.

On July 15, 1996, Laurena Edwards drove her two children, two year old Monte Johnson, Jr. (Monte) and three year old Domoir Edwards (Domoir), and her two sisters, eleven year old Ebony Wagner and eight year old Simone Wagner (Simone), to a friend's home. Upon arrival, Laurena left the children in the vehicle with the key in the ignition and the driver's side window halfway down. Defendant and Carlos Young (Young) approached the vehicle; Defendant reached his hand through the window, unlocked the door, and got in the vehicle. Young ran around the corner.

Defendant held a gun to Ebony's head, and told everyone to shut up or he would kill her. As Defendant was driving, Monte climbed into the front seat and screamed; Defendant struck him. Domoir then climbed up front and kicked the gun out of Defendant's hand. Defendant pulled over, picked up the gun, held it to Ebony's head and ordered the children out of the vehicle. Young got into the vehicle, and both men drove off.

On July 17, 1996, a police officer pulled over a vehicle because it had no rear license plate. Defendant was operating the vehicle and Young was his passenger. A check of the vehicle identification number revealed the vehicle was stolen, and both men were arrested.

On July 22, 1996, Ebony and Simone picked photographs of Defendant and Young out of a photographic array. They later identified Defendant in a lineup. Young testified that he and Defendant committed the charged offenses.

Defendant testified that he was unaware the jeep was stolen, and that he had rented it from an acquaintance. The jury found Defendant guilty of all six counts as charged. Defendant appeals.

Defendant first contends the trial court plainly erred in entering a judgment against him on four counts of felonious restraint (Counts II, III, IV, and V) because it violated his right to be free from double jeopardy under the United States and Missouri Constitutions in that these counts arose from the same continuous course of conduct of restraining four children at the same place and time. Defendant argues he was subjected to multiple punishments for the same offense and is entitled to reversal of three counts.

The Missouri Constitution provides that no person shall "be put again in jeopardy of life or liberty for the same offense, after being once acquitted by a jury...." Mo. Const. Art. I, Section 19. The Double Jeopardy clause of the Missouri Constitution does not apply to this case because Defendant was never acquitted by a jury. State v. McTush, 827 S.W.2d 184, 186 (Mo. banc 1992). However, Defendant's refuge from double jeopardy under Missouri law is coextensive with that provided by the Fifth Amendment to the United States Constitution. State v. Morrow, 888 S.W.2d 387, 390 (Mo.App. S.D.1994).

The Fifth Amendment provides that no person "shall be subject for the same offense to be twice put in double jeopardy of life or limb." This constitutional guarantee provides protection against multiple punishments for the same offense. State v. Nichols, 865 S.W.2d 435, 437 (Mo.App. E.D.1993). It forbids the state from splitting a single crime into separate parts and then prosecuting it in piecemeal. Id. However, it does not protect a defendant from punishment for more than one offense arising from the same set of facts if one has in law and fact committed separate crimes. State v. Gordon, 948 S.W.2d 673, 675 (Mo.App. E.D.1997).

The double jeopardy prohibition upon multiple punishments for the same offense is limited to preventing the sentencing court from inflicting greater punishment than intended by the legislature. Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983). We must determine whether the legislature intended cumulative punishments. McTush, 827 S.W.2d at 186. Legislative intent regarding cumulative sentences is first determined by examining the statute under which Defendant was convicted. State v. Villa-Perez, 835 S.W.2d 897, 903 (Mo. banc 1992).

The four counts of felonious restraint under which Defendant was convicted are defined in Section 565.120.1, which provides:

A person commits the crime of felonious restraint if he knowingly restrains another unlawfully and without consent so as to interfere substantially with his liberty and exposes him to a substantial risk of serious physical injury.

The allowable unit of prosecution for Section 565.120.1 hinges on the word "another." Both parties agree the legislative intent is ambiguous. Since the statute does not indicate whether the legislature intended to punish cumulatively, we look to the general cumulative punishment statute, Section 556.041. State v. Owens, 849 S.W.2d 581, 584 (Mo.App. W.D.1993). The applicable part of Section 556.041 provides:

When the same conduct of a person may establish the commission of more than one offense he may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if...

(4) The offense is defined as a continuing course of conduct and the person's course of conduct was uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses.

In State v. Bowles, 754 S.W.2d 902, 904 (Mo.App. E.D.1988), the defendant was convicted of five counts of assault after attempting to burn a house that contained five individuals. This court examined the defendant's double jeopardy claim in light of the assault statute, which contained the word "another." Id. at 909. The double jeopardy claim was rejected because a single act of assault that affected two or more persons constituted multiple offenses. Id. at 911.

Similarly, despite the ambiguity of the word "another" in Section 565.120.1, we find Defendant committed four separate felonies in that each child comprised an allowable unit of prosecution. His convictions for four counts of felonious restraint do not offend the double jeopardy principle. The trial court did not plainly err in entering judgments against defendant on four counts of felonious restraint. Point denied.

In his second point relied on, Defendant claims the trial court erred in overruling his motion for judgment of acquittal because there was insufficient evidence to support his conviction for assault in the third degree in violation of Section 565.070. We view the...

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