State v. Sinks

CourtCourt of Appeal of Missouri (US)
PartiesSTATE OF MISSOURI, Respondent, v. ANTHONY LEVAR SINKS, Appellant.
Docket NumberED109710
Decision Date05 July 2022



No. ED109710

Court of Appeals of Missouri, Eastern District, Fifth Division

July 5, 2022

Appeal from the Circuit Court of Cape Girardeau County Honorable Benjamin F. Lewis



Anthony Levar Sinks ("Sinks") appeals from the trial court's judgment following a bench trial convicting him on charges of first-degree murder and armed criminal action for the shooting death of Derwin Simmons ("Victim"). Sinks raises three points on appeal, each of which focus on his claim of self-defense. Point One contends the trial court misapplied Section 563.031[1] and misstated the law when observing that Sinks was required to wait and see if Victim had a gun before defending himself. We treat Point Two as a challenge to the sufficiency of the State's evidence that Sinks did not kill Victim in self-defense. In particular, Sinks argues the record contained uncontroverted facts showing that Victim was the initial aggressor and that a reasonable person in Sinks's position would have believed the use of deadly force was necessary to defend himself against Victim. Point Three asserts the trial court wrongfully excluded


testimony that Sinks witnessed Victim seriously injure someone fifteen years earlier because the evidence was relevant to his knowledge of the threat posed by Victim. Because the trial court did not misstate or misapply the law when commenting on the particular facts undermining Sinks's defense of justification, Point One is denied. Because the record lacks undisputed and uncontradicted evidence that Sinks had a reasonable belief that he was justified in using deadly force when he shot and killed Victim, the State presented sufficient evidence from which the trial court, as the trier of fact, reasonably could find that Sinks did not shoot Victim in self-defense. The trial court thus did not err in denying Sinks's motion for acquittal, and we deny Point Two. Because the testimony as to Victim's violent act fifteen years earlier was remote, only speculatively relevant to interpreting Victim's text message to Sinks, and cumulative to other admissible evidence regarding Sinks's knowledge of Victim, the trial court did not prejudicially err in excluding such evidence, and we deny Point Three. Accordingly, we affirm the trial court's judgment.

Factual and Procedural History

Sinks shot Victim to death inside a Hardee's restaurant in Cape Girardeau on August 1, 2018. The following facts are presented in the light most favorable to conviction. See State v. Jones, 553 S.W.3d 909, 911 (Mo. App. S.D. 2018) (citing State v. Lammers, 479 S.W.3d 624, 632 (Mo. banc 2016)).

Sinks's ex-wife ("Ex-Wife") was engaged to Victim at the time of the shooting. Sinks and Ex-Wife had been married twice and had one son ("Son") born in 2012. Sinks and Ex-Wife separated again in 2015, after which they began seeing other people. Sinks struggled with the separation and demanded to know about anyone Ex-Wife was seeing romantically.

Ex-Wife began dating Victim during her separation from Sinks. Sinks and Victim had been friends since the early 2000's. They remained in occasional contact, and Sinks considered


Victim a friend before he learned of Victim and Ex-Wife's relationship. Victim lived in Ohio and would visit his teenage son ("K.T.S."), who lived in Cape Girardeau with the child's mother. Ex-Wife did not tell Sinks that she was dating Victim because she believed Sinks would have been angered by the relationship. In November 2017, Ex-Wife filed for divorce, which Sinks opposed. Sinks continued to question Ex-Wife about whom she was dating and threatened her significant other. Sinks's text messages included the following:

• "Don't get with a dude I'll have to bury over my son."
• "You just need to make sure you get with somebody that understands I'm not happy how this is playing out."
• "I'm sure you'll make a wise decision. If I don't like 'em, I'm going to address it period."
• "All I know is I am waiting on the dude that is willing to say I'm in love with [Ex-Wife] and I am not scared of you. I'm willing to kill or be killed for her That's the man I wanna confront."
• "Well, let's just see what he's made of. Let's meet."
• "It's not a felony to violate a restraining order [un]til you go to court for it three times. I won't need but one meeting with [the] dude."

Ex-Wife shared Sinks's messages with Victim. In January 2018, Ex-Wife obtained an ex parte order of protection against Sinks, which she ultimately chose not to pursue. Sinks continued texting Ex-Wife messages such as the following:

• "I'll have to meet him eventually."
• "And I can't wait. I'm very anxious."
• "I ain't got no more threatening words. I think everyone knows I'm going to be the man that I am about it."
• "I want to know who told you they ain't worried about me. That is so offensive. LHH [laughing hella hard]."

Ex-Wife testified that during custody exchanges, Sinks would talk negatively about her dating life and other decisions in front of Son, who was then five years old. Meanwhile, Ex-Wife and Victim began making plans to live together as a family with Son in Ohio. When Ex-Wife told Sinks about moving to Ohio, Sinks told her that she could not take Son away and that if she moved, he would follow her. Sinks again demanded to know the man she was dating, texting that he "can't beat up, poison, snipe, stab, choke, run over, blow up or contract to hit on a whole city. I just want to know where my son might be."

Ex-Wife legally dissolved her marriage to Sinks in March 2018. In June, Ex-Wife told Sinks that she was engaged to Victim and was planning to relocate to Ohio with Victim and Son. Ex-Wife gave Sinks the sixty-days' notice required by the terms of the dissolution decree. Sinks was "off-the-meter angry" about her relocation plans. Sinks filed an objection to Ex-Wife's proposed relocation with Son in the family court, and a hearing was scheduled for August. Ex-Wife told Sinks that Victim would be in town on August 3 to help with her move to Ohio. Sinks responded that he would see Victim face to face, texting, "I'm certain [Victim] will pull up on me eventually. I won't have it any other way," and, "I do my best to be versed in all sorts of self-defense. This is a dangerous world we live in and defense against violence is a topic on everyone's mind. Me personally, I do my best to stay ready."

Sinks was in a group text exchange with Ex-Wife and Victim in which Sinks voiced his concerns that K.T.S. was going to molest Son. When Sinks threatened K.T.S., Victim told Sinks to stop threatening his and K.T.S.'s lives. Victim told Sinks, "[Y]ou know what kind of man I am." Later that day, Sinks texted that he was "going to practice some self-defense." Sinks had no further direct communication with Victim from June 3 until the day of the shooting.


In July, Sinks shared a Facebook post that said in part, "a man reaches a certain age where he doesn't want any drama. He doesn't want to fight anyone and if forced to he will not fight fair. He will not quit and there are no weapons he will not use." During this time, Sinks texted other people about Victim, including, "I hope he doesn't try me because if he tries me I will shoot him." At trial, Sinks denied that such statements were threats and explained that he meant only that he would defend himself if Victim tried to hurt him.

The weekend prior to the shooting, Ex-Wife and Sinks met for a custody exchange. Ex-Wife told Sinks that she, Son, and Victim were moving to Ohio as planned. Ex-Wife testified that Sinks told her he would do whatever it took to keep her from moving.

On July 31, the day before the shooting, Sinks contacted his friend, Eric Norman ("Norman"), and asked to borrow a gun. Norman initially hesitated, then Sinks told Norman that Victim was going to be in town, knew where Sinks lived, and that Sinks needed a gun to protect himself. Sinks testified that he told Norman he was not going to look for Victim but that he wanted the gun for self-defense if something terrible happened. Sinks admitted at trial that he already had in mind at this time to use the gun against Victim in self-defense. Norman relented and gave Sinks the gun. That afternoon, after getting the gun from Norman, Sinks went target-shooting with his friend, Micah Stone ("Stone"). Sinks told Stone he was concerned about Ex-Wife moving out of state with Son.

On the day of the shooting, August 1, Sinks attended a business meeting on the campus of Southeast Missouri State University. After the meeting, Sinks asked Stone to meet him at the Hardee's to get something to eat. When Stone met Sinks at the restaurant, they entered the Hardee's and saw Victim and K.T.S. sitting in the front of the restaurant eating breakfast. The trial court found that Sinks and Victim appeared at the Hardee's at the same time coincidentally.


At trial, multiple witnesses testified about the shooting incident. K.T.S. and the Hardee's manager on duty ("Manager") testified for the State, and Sinks and Stone testified for the defense. The Hardee's security video was also entered into evidence, and several witnesses testified in detail regarding its contents, including police officers Orrin Hawkins ("Officer Hawkins") and Jerry Franks ("Det. Franks"). The security video, which had no audio track, contained footage from two camera angles, one with a view of the front counter and one with a limited view of the back of the dining room due to a wall partition.

When Sinks and Stone entered the Hardee's, Sinks recognized Victim and told Stone that he had an issue with Victim. Stone ordered his food and sat down in the back of the restaurant on the same side as Victim and K.T.S. Sinks left the restaurant and went back to his car to get his gun. Sinks...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT