State v. Southern

• Decision Date: 23 December 1986
• Docket Number: No. 51348,51348
• Citation: 724 S.W.2d 605
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Larry SOUTHERN, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 605

724 S.W.2d 605

STATE of Missouri, Plaintiff-Respondent, v. Larry SOUTHERN, Defendant-Appellant.

No. 51348.

Missouri Court of Appeals,

Eastern District,

Division Two.

Dec. 23, 1986.

Motion for Rehearing and/or

Transfer Denied

Jan. 27, 1987.

Application to Transfer Denied

March 17, 1987.

Deborah Stockhausen, Asst. Public Defender, St. Louis, for defendant-appellant.

William L. Webster, Atty. Gen., Carrie Francke, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

REINHARD, Judge.

Defendant appeals after being convicted by a jury of one count of stealing an automobile, five counts of first degree robbery, four counts of armed criminal action, and one count of first degree burglary. He was sentenced to a total term of sixty years' imprisonment. ¹ We affirm.

We briefly set forth the pertinent facts, gleaned from consideration of the evidence in the light most favorable to the jury verdict. On November 16, 1984, at approximately 6:00 p.m., Judy Brame parked her blue 1978 Oldsmobile Cutlass on the St. Francis DeSales Church parking lot in the City of St. Louis. At 7:45 p.m. she discovered her car was missing and reported the theft to the police.

The stolen automobile was seen later that night on the Schnucks grocery store parking lot at 8960 Jennings Station Road, which is located in St. Louis County, 3/8 of a mile outside the City of St. Louis. At approximately 8:30 p.m., Cretia Harden arrived at the Schnucks store and was approached by two men, one of whom she identified as defendant. Defendant displayed a gun and instructed Harden to accompany the men back to "their" car, which she identified as the vehicle represented in a photograph of the Brame automobile. Harden was told by defendant to get into the car, and was seated between defendant, who was in the driver's seat, and the other man. Her money and her gold chain were taken from her. Defendant then got out of the car, saying, "I'm going to rob these older people" who were leaving the Schnucks store. Harden saw the defendant approach the two people he had referred to, taking his gun with him and she saw him return approximately five minutes later with a briefcase. While she was in the car she noticed a large scar on the neck of the man she identified as defendant. Defendant conceded he had such a scar.

Arthur Trampe, who is 61 years old, testified that he went shopping at the Schnucks grocery store on Jennings Station Road with his 90-year-old mother on the night of November 16, 1984. When Trampe returned to his car with the groceries he had purchased, he opened the door for his mother, who sat down and put her purse in her lap. Trampe then opened the trunk and began to load the groceries into the car; however, he was interrupted by a man who stuck a gun in his face. The man demanded Trampe's money and his watch, and when Trampe failed to comply he was struck in the back of the head and lost consciousness. When he regained consciousness his money clip, his briefcase and his mother's purse were missing.

At approximately 8:50 that same evening, Alice P. Pollard and her daughter, Alice F. Pollard, returned home to 4621 Shirley Place in the City of St. Louis after grocery shopping. Both women carried some groceries into the house, then the daughter went back outside to get the rest of the groceries. She noticed a blue Oldsmobile, which she identified as the car represented in a photograph of the Brame vehicle, pull into an alley, turn around quickly, and approach her mother's house. A man she identified as defendant "jumped out of the car" from the passenger's side with a gun and said, "This is a stick up." She informed defendant that her purse was inside the house and told him she would instruct her mother to "throw my purse out." She then began calling to her mother. When her mother approached the door the driver of the car got out, put on a ski mask and ran to the door of the house. Her mother testified that although she attempted to lock the door, the man in the mask was able to kick it in. He entered, struck her on the face, and took both women's purses. He, too, had a gun.

The Brame automobile was recovered four days later after being abandoned on a street in the City of St. Louis. A window was broken, as was the steering column. Papers were strewn about the car, which also contained two purses and a briefcase. The purses belonged to the Pollards and the briefcase to Mr. Trampe.

Defendant was indicted in the City of St. Louis on fourteen counts; including six counts of robbery, first degree, five counts of armed criminal action, one count of stealing a motor vehicle, one count of burglary, first degree, and one count of second degree murder. Defendant filed a motion to sever the offenses which was denied; however, upon the state's motion the murder count, as well as the related robbery count and armed criminal action count, were severed. Trial proceeded on the remaining eleven counts.

Defendant's principal point on appeal is that the trial court erred in overruling defendant's motion to sever offenses because joinder was improper under Rule 23.05. ² In determining whether defendant was tried on improperly joined charges we consider only the evidence adduced by the state. State v. Smith, 682 S.W.2d 861, 863 (Mo.App.1984). Furthermore, "[l]iberal joinder of criminal charges is favored in order to achieve judicial economy." Id.

Rule 23.05 provides:

All offenses that are based on the same act or on two or more acts that are part of the same transaction or on two or more acts or transactions that constitute parts of a common scheme or plan may be charged in the same indictment or information in separate counts.

(Emphasis ours.) The supreme court in State v. McCrary, 621 S.W.2d 266 (Mo. banc 1981), examining the issue for the first time, held that the essential test in determining whether a common scheme or plan exists under Rule 23.05 "is the requirement that all the offenses charged must be 'products of a single or continuing motive.' " Id. at 271.

Subsequent cases have further analyzed the meaning of "common scheme or plan" under Rule 23.05. Particularly pertinent to the case at bar are State v. Foerstel, 674 S.W.2d 583 (Mo.App.1984); and State v. Allen, 641 S.W.2d 471 (Mo.App.1982).

In Foerstel, the western district was confronted with the question of whether various counts stemming from the defendant's escape from a minimum security facility and his subsequent crime spree, which included automobile theft, rape, burglary and kidnapping, were properly joined. After a detailed analysis of the case law the court held:

The offenses in the case at bar point to acts constituting parts of a common scheme or plan. Rule 23.05. Appellant's escape, burglary, the kidnappings and theft carried out his intent to stay at large outside prison walls. The three rapes committed in the 24 hours spent outside the Church Farm were incidental to and part of his plan as espoused to the guard that he had been without a woman for eight years and wasn't going to pass up any sexual activity. Add to the claim of depression and frustration over being denied his second furlough request and it can be concluded the rapes and all other offenses were committed in a continuous flow of events evidencing a common scheme or plan. It is not felt the rapes are so attenuated as to comprise offenses not properly joined as part of this scheme or plan from the rest of the offenses. The rapes were products of appellant's continuing dual motive to engage in as much sexual activity as possible outside of confinement and to effect his permanent escape. Joinder of the nine offenses was here proper. Rule 23.05.

674 S.W.2d at 589-590. (Citations omitted.) (Emphasis ours.)

The Allen case presents a situation closely analogous to the one at bar. There defendant's accomplice stole an automobile at 11:30 p.m., and the two men proceeded to commit six robberies between 1:00 and 1:15 that night, utilizing the stolen vehicle to escape. We held:

The crimes occurred in close proximity in both time and place and involved the same method of operation and a repeated course of conduct by King and by defendant. While the victims can be characterized as targets of opportunity, the robbery of targets of opportunity was the intention of King and defendant when they began their criminal activities. Unlike the cases cited by defendant, [State v. Buford, 582 S.W.2d 298 (Mo.App.1979); State v. Howard, 601 S.W.2d 308 (Mo.App.1980); and State v. Wood, 613 S.W.2d 898 (Mo.App.1981) ] here there is evidence that King and defendant set out on a "preconceived and deliberate criminal foray." We therefore find a sufficient basis for joinder of the offenses.

641 S.W.2d at 474. (Citations omitted.) (Emphasis ours.)

The crimes in the instant case were also closely related in both time and place, and were committed in a "continuous flow of events." The victims here could likewise be characterized as "targets of opportunity," and there was evidence supporting an inference that defendant intended to rob such "targets" when he stole the automobile. Indeed, under the circumstances here, it is reasonable to infer that defendant stole the Brames' car to facilitate the commission of the other offenses and then abandoned it. The counts were properly joined under Rule 23.05.

Defendant next posits error in the trial court's refusal of his requested instruction on circumstantial evidence, MAI-CR2d 3.42, contending that the state's evidence pertaining to Count I was circumstantial. While a trial judge must instruct on circumstantial evidence if the evidence in the case is wholly circumstantial, the judge need not submit the instruction where both direct and circumstantial evidence exist. State v. Bannister, 680 S.W.2d 141, 148 (Mo. banc 1984), cert. denied 471 U.S. 1009, 105 S.Ct. 1879, 85 L.Ed.2d 170 (1985). The distinction between direct and circumstantial evidence was explained by the supreme court in ...