State v. Sistrunk

• Decision Date: 24 December 2013
• Docket Number: No. ED 98726.,ED 98726.
• Citation: 414 S.W.3d 592
• Parties: STATE of Missouri, Respondent, v. Antonio D. SISTRUNK, Appellant.
• Court: Missouri Court of Appeals

414 S.W.3d 592

STATE of Missouri, Respondent,

v.Antonio D. SISTRUNK, Appellant.

No. ED 98726.

Missouri Court of Appeals,

Eastern District,

Division One.

Oct. 1, 2013.

Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 5, 2013.

Application for Transfer Denied Dec. 24, 2013.

Maleaner Harvey, St. Louis, MO, for Appellant.

Chris Koster, Todd T. Smith, Jefferson City, MO, for Respondent.

ROY L. RICHTER, Presiding Judge.

Antonio Sistrunk (“Defendant”) appeals from the trial court's judgment, following a jury's guilty verdict, of robbery in the first degree, in violation of Section 569.020, RSMo 2000,¹ armed criminal action (“ACA”), in violation of Section 571.015, and kidnapping, in violation of Section 565.110. On appeal, Defendant alleges the trial court erred in: (1) denying Defendant's motion for judgment of acquittal as to first-degree robbery and ACA because the evidence was insufficient to sustain the convictions; and (2) denying Defendant's motion for judgment of acquittal as to kidnapping because the evidence was insufficient to sustain that conviction. We affirm.

I. BACKGROUND

The relevant facts, viewed in the light most favorable to the jury verdict, are as follows. In the early afternoon, on or about May 21, 2009, Defendant and an unidentified man (“Unidentified Accomplice”) entered Lady Jane's Antiques on Cherokee Street in the City of St. Louis. At the time Defendant and Unidentified Accomplice entered the antique store, the only individual present was the store owner, John Brauer (“Victim”). Defendant and Unidentified Accomplice began perusing the store and conversing with Victim.

Soon, after entering the store, Unidentified Accomplice pulled a black gun from his waistband and pointed it at Victim with his finger on the trigger. Defendant, meanwhile, pointed a “very hard” object at the back of Victim's head, which Victim “assumed” was a gun although he never saw the object. Defendant proceeded to reach into Victim's left and right pockets and removed the cash and credit cards therein located.

While Unidentified Accomplice continued to point his gun at Victim, Defendant assisted Victim in moving towards the back of the store (in order to remove Victim from sight of the store's front door) and guided Victim to the ground. Using the cord from a nearby lamp, Defendant tied Victim's hands together and used Victim's shoestrings to tie Victim's ankles together. Before fleeing the store, Unidentified Accomplice collected the Victim's laptop, cash, and cell phone sitting on the store counter.

After Defendant and Unidentified Accomplice fled the store, within two minutes Victim kicked-off his shoes and ran outside with his hands still tied together by the lamp cord. Fortunately, a City of St. Louis police officer had just turned his vehicle onto Cherokee Street, and Victim notified the officer of the incident.

Roughly a week later, Victim identified Defendant in a photographic-lineup and Defendant's fingerprints were matched with the fingerprints found on the lamp whose cord was used to tie Victim's hands. The identity of the Unidentified Accomplice has never been discovered.

At trial, Defendant testified that he stole Victim's cash, laptop, cell phone and credit cards, moved Victim to the back of the store, and tied Victim's hand and ankles. However, Defendant asserted that he acted alone, without the aid or assistance of any other individual, and that he completed the crime without a gun or any other dangerous or deadly instrument.

At the close of all evidence, Defendant filed a motion for judgment of acquittal on all charges; the trial court denied Defendant's motion. The jury returned verdicts of guilty for all three counts.

Defendant now appeals.

II. DISCUSSION

Defendant presents two points on appeal. Both points raised by Defendant challenge the sufficiency of the evidence supporting his convictions.

In his first point, Defendant claims the trial court erred in denying his motion for judgment of acquittal at the close of all evidence because there was insufficient evidence to support Defendant's convictions of first-degree robbery and the accompanying ACA. Specifically, Defendant argues that the State failed to prove Defendant acted in concert with another and that he stole from the victim with the use of a deadly weapon or instrument.

Second, Defendant contends the trial court erred in denying his motion for judgment of acquittal at the close of all evidence because there was insufficient evidence to support Defendant's conviction of kidnapping. Defendant argues the evidence adduced during trial failed to establish that Defendant unlawfully confined Victim for a “substantial period” after the commission of the crime of robbery for the purpose of facilitating flight.

Standard of Review

Standard of Review This Court reviews the denial of a motion for acquittal to determine if the state adduced sufficient evidence to make a submissible case. State v. Foster, 930 S.W.2d 62, 63 (Mo.App.E.D.1996). This Court “will affirm a trial court's denial of a motion for judgment of acquittal if, at the close of evidence, there was sufficient evidence from which reasonable persons could have found the defendant guilty of the charged offense.” State v. Hunter, 179 S.W.3d 317, 320 (Mo.App.E.D.2005). In so reviewing, this Court accepts as true all of the evidence favorable to the State, including all favorable inferences drawn therefrom, whereas, all contrary evidence and inferences are disregarded. State v. Scholl, 114 S.W.3d 304, 307 (Mo.App.E.D.2003). We do not weigh the evidence, but rather merely determine whether there was sufficient proof, including any incriminating evidence developed during the defendant's case, from which the trial court could reasonably have found the defendant guilty. State v. Villa–Perez, 835 S.W.2d 897, 900 (Mo. banc 1992); State v. Rivers, 554 S.W.2d 548, 550 (Mo.App.1977); see also State v. Jones, 296 S.W.3d 506, 509–10 (Mo.App.E.D.2009) (“The court does not act as a ‘super juror’ with veto powers over the conviction, but rather gives great deference to the trier of fact.”).

Analysis

Point I—First–Degree Robbery and ACA

Defendant was tried and convicted of first-degree robbery and ACA, via accomplice liability. “The law of accessory liability emanates from statute, as construed by the courts.” State v. Barnum, 14 S.W.3d 587, 590 (Mo. banc 2000). Although Missouri at one time made a distinction between principals and accessories to crime, Missouri has since eliminated such a distinction with respect to accompliceliability; therefore, all persons who act in concert to commit a crime are equally guilty. State v. Wurtzberger, 40 S.W.3d 893, 895 (Mo. banc 2001); see also State v. Young, 369 S.W.3d 52, 55 (Mo.App.E.D.2012). Section 562.041.1(2) provides that a person is criminally responsible for the conduct of another when “[e]ither before or during the commission of an offense with the purpose of promoting the commission of an offense, he aids or agrees to aid or attempts to aid such other person in planning, committing or attempting to commit the offense.”

Accordingly, “[t]o make a submissible case of accomplice liability, the State must show that the defendant associated himself with the venture or participated in the crime in some manner, but the State need not show that the defendant personally committed every element of the crime.” Young, 369 S.W.3d at 55. Any evidence, either direct or circumstantial, demonstrating “affirmative participation” in the crime charged and committed is sufficient to support a conviction. State v. Smith, 108 S.W.3d 714, 719 (Mo.App.W.D.2003). In determining whether the evidence is sufficient to support the jury's verdict, we consider each of the elements of the crime. Smith, 108 S.W.3d at 718.

First, pursuant to Section 569.020.1, a person commits the crime of first-degree robbery when he forcibly steals property and in the course therefore, he, or another participant in the crime:

(1) Causes serious physical injury to any person; or

(2) Is armed with a deadly weapon; or

(3) Uses or threaten the immediate use of a dangerous instrument against any person; or

(4) Displays or threatens the use of what appears to be a deadly weapon or dangerous instrument.

Section 569.020.1. As such, a conviction for first-degree robbery in this case required the State to show Defendant, acting in concert with another, forcibly stole property from another while using or threatening the use of what appeared to be a deadly weapon. Jones, 296 S.W.3d at 510.

Second, to be found guilty of armed criminal action, there must be proof the defendant committed a “felony under the laws of this state by, with, or through the use, assistance or aid of a dangerous instrument or deadly weapon [.]” Section 571.015.1. Thus, the State was required to show Defendant, acting in concert with another, committed first-degree robbery with the assistance of a deadly weapon. Jones, 296 S.W.3d at 510.

Defendant argues there was insufficient evidence to convict him of the crimes charged because: (1) the State failed to prove the identity of the second person in order to establish Defendant acted in concert with another; and (2) the State failed to prove the item allegedly placed against Victim's head was a dangerous weapon or instrument. Although Defendant admitted to stealing the victim's laptop, cell phone, credit cards and cash, Defendant testified that he entered the antique shop unaccompanied and stole the property without a dangerous instrument or weapon.

Conversely, Victim testified that two individuals entered his business and the “short one”—Unidentified Accomplice—pointed a black gun at him. While Unidentified Accomplice pointed a gun at Victim, Defendant pointed a hard object to the back of Victim's head, which Victim assumed to be a gun. Although Victim never saw the object pointed at his head by Defendant, Victim believed the object to be a gun. Furthermore, Victim was...