State v. Smith

• Decision Date: 10 June 2003
• Docket Number: No. WD 61263.,WD 61263.
• Parties: STATE of Missouri, Respondent, v. Anesia SMITH, Appellant.
• Court: Missouri Court of Appeals

108 S.W.3d 714

STATE of Missouri, Respondent, v. Anesia SMITH, Appellant.

No. WD 61263.

Missouri Court of Appeals, Western District.

June 10, 2003.

Jon M. Krebbs, Liberty, MO, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, Patrick T. Morgan, Asst. Attorney General, Jefferson City, for Respondent.

Before RONALD R. HOLLIGER, P.J., PAUL M. SPINDEN, and JAMES M. SMART, JR., JJ.

PER CURIAM.

Anesia Smith appeals her conviction for robbery in the first degree for which she was sentenced to ten years of imprisonment, with the execution of sentence suspended and the defendant placed on probation for five years.

Statement of Facts

Anesia Smith was tried before a Clay County jury on February 4, 2002, on charges of robbery in the first degree, § 569.020, RSMo 2000, and armed criminal action, § 571.015, RSMo 2000. Viewed in the light most favorable to the jury's verdict, the evidence at trial showed the following: In July of 2000, Anesia Smith was romantically involved with Steven Foster. Foster resided with his aunt, Mary Swetman. Both Smith and Foster lived in St. Louis, Missouri. On the evening of Friday, July 7, 2000, Steven Foster asked to borrow a green Ford Escort belonging to his aunt, Mary Swetman, with whom he resided. He told his aunt he needed the car to drive to Kansas City to withdraw money from his bank account. Anesia Smith and another woman were with him at the time he borrowed the car. Foster drove the car to Liberty, Missouri, and robbed a Hy-Vee store.

The robbery took place in the early morning hours of Saturday, July 8, 2000. Hy-Vee employee Johnna Klucking was tallying the daily receipts in the upstairs office at the store in Liberty around 4:00 a.m. A man entered the office, put a gun to Ms. Klucking's head, and told her to put all the money in a backpack that he handed her. Ms. Klucking complied. After ordering her to the floor, the robber ran from the office with approximately $32,000.00. As he fled the scene, Ms. Klucking recognized the robber as Steven Foster, a former employee at the store. Ms. Klucking activated a silent alarm and followed Foster down the stairs leading from the office. Two other store employees, Farney Smith and Megann Landsdale, also saw Foster run out the front door.

At trial, Johnna Klucking testified that she chased the robber out of the store and saw him get into a waiting car. She saw at least one other person in the car, but Klucking could not identify anyone in the car other than Foster. Klucking testified that there may have been a third person in the car, but she "couldn't swear to that." Farney Smith testified that she definitely saw two other people in the car and thought one might be a female because it looked like "hair down to here." She could not identify anyone in the car other than Foster. Megann Landsdale testified that she saw the robber jump into the backseat of the car and stated that there were two females in the waiting car. She knew the passenger was an African-American female but did not know whether the driver was African-American. She could not say Anesia Smith (an African-American) was there that day. The witnesses were able to see the license plate number, which they reported to police.

Sometime later that morning or early in the afternoon, approximately seven to eleven hours after the robbery in Liberty, Foster, Anesia Smith, and another woman drove to a used car dealership in St. Louis (some four or five hours away from Liberty, the site of the robbery) where Ms. Smith purchased a Dodge Intrepid. She paid $6,825.00 in cash as the total purchase price of the car, and the car was titled solely in her name. A dealership employee testified that the appellant and Foster negotiated the transaction while the other woman waited in the Ford Escort. He recalled that they were there sometime between 11:00 a.m. and 3:00 p.m. The employee stated that Foster pulled from his pocket "[s]tacks of mostly twenties, fifties, some hundreds, wrapped in rubber bands." Anesia Smith was driving the new car when they left the dealership.

When Foster returned Ms. Swetman's Escort to her later that same Saturday, he asked her and her boyfriend, Charles Wiley, to come out and see his new car. Ms. Swetman testified at trial that there were two women in the car, but she did not recognize either one. In her earlier written statement to the police, she stated that the two women were Anesia and a friend of Anesia's named April. Mr. Wiley testified that he saw Anesia Smith sitting in the driver's seat of the Intrepid, along with a friend of hers, who he believed may have been named April. Mr. Wiley also stated in his earlier written statement that the other woman in the car was April. Later, Ms. Swetman and Mr. Wiley, checking Foster's bedroom in Ms. Swetman's house, found bank bags in Foster's bedroom. Ms. Swetman took the bank bags to her sister's house. They looked in together and found "money orders, checks, telephone bills, and utility bills" in the bags. Subsequently, they turned the bags over to the Liberty Police Department.

A few days later, on July 13th, Foster was stopped on a traffic violation in Overland Park, Kansas. He was driving the new Intrepid titled in the name of Anesia Smith. Approximately $5,000.00 in cash and more bank bags from the robbery were found in the trunk of the car. Foster told police the car belonged to Smith. When Smith was contacted about the car, she confirmed it was her car. Acknowledging the car was not registered, she said she paid a total of $4,000.00 for the car, paying $2,000.00 in cash and financing the balance at $150.00 per month.

When police detectives contacted Mary Swetman, the owner of the car used in the robbery, and Charles Wiley about the car, Swetman and Wiley told them that Foster had borrowed the car to drive to Kansas City. They also said he was accompanied by Anesia Smith and a friend of Smith both when the car was borrowed and later returned.

Foster eventually pleaded guilty to the robbery. Anesia Smith was charged with first degree robbery under a theory of accomplice liability as a participant in the offense. Ms. Smith presented an alibi at trial, stating she was with Joseph Anderson, who also testified. Steven Foster testified, admitting the robbery, but stating that Anesia Smith had nothing to do with the robbery. He identified two other people as involved with the robbery. Anesia Smith testified that she purchased the Dodge Intrepid with cash she had saved after years of working.

The jury found the appellant guilty of robbery in the first degree and of armed criminal action. The trial court granted the appellant's request for a new trial on the armed criminal action charge because a typographical error in the verdict form could have confused the jury. Anesia Smith was sentenced in accordance with the jury's recommendation to ten years imprisonment in the Missouri Department of Corrections. The court suspended execution of sentence, sentenced her to five years probation, and ordered her to pay $26,810.95 in restitution.

On appeal, the appellant challenges the sufficiency of the evidence to convict her of robbery in the first degree.

Standard of Review

In reviewing a challenge to the sufficiency of the evidence, appellate review is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989). This court is charged with the responsibility of determining whether all of the evidence, direct and circumstantial, is sufficient to provide any rational juror with proof beyond a reasonable doubt as to each element of the crime. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993). In making this determination, the court accepts as true all evidence that is favorable to the State, including all favorable inferences to be drawn therefrom, and disregards all evidence and inferences to the contrary. State v. Chaney, 967 S.W.2d 47, 52 (Mo. banc 1998). We seek to ensure that the finding of guilt is not based on speculation. See Grim, 854 S.W.2d at 414. Where there are permissible inferences that could reasonably establish guilt beyond a reasonable doubt, this court does not sit as a "super juror" with veto powers. See Id.

Point On Appeal

The appellant asserts that the trial court erred in denying her motion for judgment of acquittal at the close of all the evidence and her motion for judgment of acquittal after discharge of the jury in that, as a matter of law, there was insufficient evidence to prove that she intentionally aided or encouraged the commission of a robbery and insufficient evidence from which a jury could make reasonable inferences as to her involvement in the robbery.

Accomplice Liability

In determining whether the evidence is sufficient to support the jury's verdict, we must consider each of the elements of the crime. State v. Thomas, 75 S.W.3d 788, 790 (Mo.App.2002). The State, in order to convict, is required to prove beyond a reasonable doubt, each and every element of the crime charged. State v. May, 71 S.W.3d 177, 183 (Mo.App.2002). The evidence need not show, however, that the defendant personally committed every element of the offense. Id.; see also State v. Sensabaugh, 9 S.W.3d 677, 679 (Mo.App. 1999). To convict Anesia Smith of robbery in the first degree under a theory of accomplice liability, the State must prove the commission of the elements of the crime charged by a principal with "affirmative participation" by Anesia to aid the principal in the commission of the crime. Id. at 184. Smith was charged with first-degree robbery under Section 569.020.1, which states:

A person commits the crime of robbery in the first degree when he forcibly steals property and in the course thereof he, or another participant in the crime,

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

(2) Is armed with a deadly weapon;...