State v. Sims
| Decision Date | 18 December 1984 |
| Docket Number | Nos. 47471,47677,s. 47471 |
| Citation | 684 S.W.2d 555 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. James SIMS, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Debra B. Arnold, Public Defender, St. Louis, for defendant-appellant.
John Ashcroft, Atty. Gen., Jefferson City, for plaintiff-respondent.
A seven count information charged that defendant, a persistent offender, acting with others, committed the following offenses:
Count I--Assault first degree by shooting Veronica Bryant;
Count II--Assault first degree by shooting Steve Valentine;
Count III--Armed criminal action based upon the robbery charged in Count IV;
Count IV--Robbery first degree by stealing a television and stereo from Veronica Bryant by means of a deadly weapon;
Count V--Robbery first degree by stealing money from Steve Valentine by means of a deadly weapon;
Count VI--Robbery first degree by stealing money from John Sanders by means of a deadly weapon;
Count VII--Assault first degree by striking John Sanders with a sawed-off shotgun.
The evidence showed that Steve Valentine, John Sanders, Jimmy Grayson, Michael Grayson and defendant and some others had, on several occasions, played dice together. A dice game was planned for November 20, 1982, but the location was changed from the home of defendant's brother to the apartment of Veronica Bryant, Valentine's fiancee. Defendant and the Graysons drove from the one location to the other in one car, Valentine and Sanders in another. The three concluded Valentine had been cheating in earlier games and determined to recover their losses. They gathered in the kitchen of Bryant's apartment. When Valentine entered the room, Michael Grayson had a sawed-off shotgun; Jimmy Grayson, a pistol; and defendant, a knife. Valentine and Sanders were both beaten, kicked and threatened with death by defendant and the Graysons. The three took money from the two and forced them to carry Bryant's television and stereo to their car at gunpoint. At the car, Sanders broke away and started to run. Defendant and Michael Grayson chased him while Jimmy Grayson held the pistol on Valentine and Bryant. Valentine grabbed Jimmy's arm and a scuffle ensued. Michael returned and shot Valentine three times and Bryant once. Defendant and the Graysons then fled.
Testifying in his own behalf, defendant's version of the evening's events differed from the state's evidence only insofar as the use of weapons was concerned. He denied knowledge or use of any weapons during the beating and kicking of Valentine and Sanders in the kitchen. He claimed he never saw a shotgun or a pistol, but as he was chasing Sanders he heard shots and discovered upon returning to the car that Valentine had been shot by one of the Graysons.
The jury found defendant guilty on Counts I through V and not guilty on Counts VI and VII. As a persistent offender, the court sentenced him to three consecutive 15 year sentences on the first three counts and to two concurrent 15 year sentences on the two robbery counts.
On appeal, defendant contends the trial court erred in failing to instruct on second and third degree assault on each assault count, and on robbery second degree on each robbery count, and in failing to give MAI-CR2d 2.14 on each of these counts. These really amount to a single contention for MAI-CR2d 2.14 is required only where "an offense is so submitted that the jury may find the defendant guilty of any one of two or more degrees thereof." MAI-CR2d 2.14, Notes on Use (3). Accordingly, the basic issue before us is whether or not, under the pleadings and the evidence, submission of lesser-included offenses was required on the various counts.
"It has consistently been held that an instruction on a lesser included offense is required only where there is evidence with probative value which could form the basis of an acquittal of the greater offense and a conviction of the lesser included offense." State v. Olson, 636 S.W.2d 318, 321 (Mo. banc 1982); § 556.046.2, RSMo. 1978. Reviewing the evidence in the light of this rule and under the allegations of the information reveals that the trial court properly refused to instruct on lesser-included assault offenses, but erred in refusing to instruct on robbery second degree.
At the outset we note the clear delineation in the pleadings and the evidence between the events which took place in the kitchen and those which occurred at the automobile. The two assaults of which defendant was convicted are alleged to have involved the shooting of the victims. There is no evidence of any shooting except that which took place at the automobile. Thus, these assaults are clearly separate and distinct from the assaults in the kitchen which formed a part of the two robberies. See State v. Helm, 624 S.W.2d 513, 518 (Mo.App.1981).
As to the shooting assaults, there is no material dispute in the evidence. By his...
To continue reading
Request your trial
-
Battle v. Armontrout, 88-2043 C (5).
... ... The Missouri Supreme Court affirmed the judgment and conviction on direct appeal. State v. Battle, 661 S.W.2d 487 (Mo. banc 1983). Thereafter, the sentencing court denied petitioner's Rule 27.26 motion after an evidentiary hearing. That ... ...
-
Booker v. State, SC 96184
...is affirmed.All concur.1 All statutory citations are to RSMo 2000, unless otherwise noted.2 To the extent cases such as State v. Sims , 684 S.W.2d 555 (Mo. App. 1984), State v. Forister , 823 S.W.2d 504 (Mo. App. 1992), State v. Hicks , 203 S.W.3d 241 (Mo. App. 2006), State v. Liles , 237 S......
-
State v. Forister
...for the acts of another does not require a common intent other than the promotion of the commission of an offense. State v. Sims, 684 S.W.2d 555, 557 (Mo.App.1984). A defendant does not need to possess the intent to commit the underlying felony in order to be convicted as a aider or abettor......
-
State v. Edwards, 55936
...request for a lesser-included offense instruction. Such error requires reversal and a remand for a new trial. State v. Sims, 684 S.W.2d 555, 557 (Mo.App.1984). Because a lesser included offense instruction for second degree robbery should have been given, the armed criminal action convictio......