State v. Tivis, s. WD

• Decision Date: 12 July 1994
• Docket Number: Nos. WD,s. WD
• Citation: State v. Tivis, 884 S.W.2d 28 (Mo. App. 1994)
• Parties: STATE of Missouri, Respondent, v. Vance E. TIVIS, Appellant. Vance E. TIVIS, Appellant, v. STATE of Missouri, Respondent. 45412, WD 48136.
• Court: Missouri Court of Appeals

Page 28

884 S.W.2d 28

STATE of Missouri, Respondent, v.Vance E. TIVIS, Appellant.

Vance E. TIVIS, Appellant, v.STATE of Missouri, Respondent.

Nos. WD 45412, WD 48136.

Missouri Court of Appeals Western District.

July 12, 1994.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 30, 1994.

Application to Transfer Denied

Oct. 25, 1994.

Elizabeth Unger Carlyle, Lee's Summit, for appellant.

Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before TURNAGE, P.J., and FENNER and HANNA, JJ.

FENNER, Judge.

Appellant, Vance E. Tivis, appeals his conviction after trial by jury, for robbery in the second degree in violation of section 569.030, RSMo 1986.¹Also consolidated herein is appellant's appeal from the dismissal of his motion for postconviction relief under Rule 29.15.

The record reflects that on November 6, 1990, at approximately 7:00 p.m., the victim herein, Carolyn Tagel, arrived at her apartment complex.It was after dark and Ms. Tagel noticed headlights of a car behind her as she pulled into the parking lot of her apartment complex.Ms. Tagel had been grocery shopping so she stopped in the lot near her apartment to unload her groceries.There was no designated parking space available so she parked behind and perpendicular to cars already parked in order to unload her car.As Ms. Tagel got two bags of groceries from her car, Vance Tivis approached her.Ms. Tagel saw Tivis exit from the car that had followed her into the lot.

Tivis asked Ms. Tagel if she wanted to buy a small stuffed pumpkin.Ms. Tagel declined the offer and became uncomfortable with the situation.She set one bag of groceries back in her car because she was uncomfortable and did not want to have her hands full of groceries.Tivis followed her around her car and asked again if she wanted to buy the stuffed pumpkin.Ms. Tagel declined again and carried one bag of groceries to the back door of her apartment.Tivis followed her to her apartment door.Ms. Tagel testified that she felt the situation was weird, and that she felt apprehensive and a little scared.As Ms. Tagel placed the bag of groceries on her back steps, Tivis "yanked" her purse off her shoulder.She testified that Tivis grabbed the purse by its strap, took it from her shoulder and ran off.Ms. Tagel testified that Tivis did not threaten her with physical force, there was no struggle over the purse, Tivis did not touch her and she was not injured.

In his first point, Tivis argues that the evidence was insufficient to show the use or threat of the immediate use of force as required for conviction of the offense of robbery.²

Section 569.030.1 provides that "[a] person commits the crime of robbery in the second degree when he forcibly steals property."The term forcibly steals is defined under section 569.010(1), in pertinent part, as follows:

[A] person "forcibly steals" ... when, in the course of stealing ... he uses or threatens the immediate use of physical force upon another person for the purpose of:

(a) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (b) Compelling [the complaining witness] to deliver up the property or to engage in other conduct which aids in the commission of the theft (emphasis added).

Tivis argues that there was no evidence that he used or threatened the immediate use of physical force.

The State argues that placing a person in fear of injury is sufficient to establish the offense of robbery.In support, the State cites State v. Adams, 406 S.W.2d 608, 610(Mo.1966), for its holding that when property is taken from a person and the person is put in fear, the offense is robbery, not stealing.The State also cites State v. Clemons, 356 Mo. 514, 202 S.W.2d 75, 78(1947), for its holding that when a sudden taking or snatching is concurrent with intimidation or violence, the crime is robbery.

We do not find either Adams or Clemons to be controlling.The present statutory offense of robbery has been altered since these cases were decided.At the time both Adams and Clemons were decided, the statute in effect provided that putting a person in fear of some immediate injury was sufficient to establish the offense of robbery.³However, the law does not currently so provide.

The current law, section 569.030.1, requires a finding of forcible stealing which under section 569.010(1) requires the use or threatened use of immediate physical force.Since there was no evidence in the case at bar of the use or threatened use of immediate physical force, the State failed to prove a necessary element of the crime of robbery.

Tivis did not express any threat against Ms. Tagel and the only evidence of force was that the purse was "yanked" from her shoulder.However, Ms. Tagel specifically testified that there was no struggle over the purse.Tivis grabbed the strap of the purse and took it from her shoulder without touching or injuring Ms. Tagel.The evidence is insufficient to support Tivis' conviction for robbery in the second degree.

Nonetheless, the State argues further that the jury necessarily had to find that Tivis was guilty of felony stealing to convict him of robbery in the second degree.Therefore, the State argues, even if the evidence did not support Tivis' conviction for second degree robbery, this court should enter a conviction for felony stealing as allowed under State v. O'Brien, 857 S.W.2d 212, 220(Mo. banc 1993).O'Brien provides that "[w]here a conviction of a greater offense has been overturned for insufficiency of the evidence, the reviewing court may enter a conviction for a lesser offense if the evidence was sufficient for the jury to find each of the elements and the jury was required to find those elements to enter the ill-fated conviction on the greater offense."Id.(citations omitted).

A person commits the crime of stealing if he appropriates property of another with the purpose to deprive him thereof without his consent.§ 570.030.Under section 570.030, stealing is a class C felony if (1) the value of the property appropriated is $150 or more, or (2) the property is taken from the person of the victim, or (3) the property taken consists of property specifically listed in the statute none of which specifically listed property is relevant herein.

In the case at bar, the verdict director, for robbery in the second degree, was as follows:

If you find and believe from the evidence beyond a reasonable doubt:

First, that on or about November 6, 1990, in the County of Jackson, State of Missouri, the defendant took a purse, which was property in the possession of Carolyn K. Tagel, and

Second, that defendant did so for the purpose of withholding it from the owner permanently, and

Third, that defendant in doing so used physical force on or against Carolyn K. Tagel for the purpose of preventing resistance to the taking of the property,

then you will find the defendant guilty of robbery in the second degree (emphasis added).

To find Tivis guilty as charged, the jury was not required to find the value of the property taken or that it was taken from the person of Ms. Tagel.In addition to the element of force, the jury was merely required to find that Tivis took a purse, which was property in the possession of Ms. Tagel, for the purpose of withholding it from her permanently.

However, to convict a person of stealing as a class C felony, the property must be appropriated from the person of the victim.The significant distinction, relevant to the State's argument here, between felony stealing and robbery in the second degree, is the requirement that the property be appropriated from the person of the victim for felony stealing as opposed to from the possession of the victim for robbery.

A person can be in possession of property without the property being on his or her person.Possession can be constructive.A person has actual possession if he has the substance on his person or within easy reach and convenient control.A person who is not in actual possession has constructive possession if he has the power and intention at a given time to exercise dominion or control over the substance either directly or through another person or persons.§ 195.010(33), RSMoSupp.1993.Therefore, a finding that a person is in possession of property does not necessarily require a finding that the property is on his person.

Since the jury was not required to find the value of the property taken or that it was taken from the person of the victim to convict of robbery in the second degree, the jury did not necessarily find all of the requisite elements to convict Tivis of felony stealing.

The evidence being insufficient to support Tivis' conviction of robbery in the second degree, the conviction is reversed.Nonetheless, when a conviction is reversed for insufficient evidence, the cause may be remanded for retrial on a lesser included offense.State v. O'Brien, 857 S.W.2d 212, 221(Mo. banc 1993).In O'Brien, the defendant's conviction for first degree murder was reversed for insufficient evidence and the cause was remanded for retrial on the lesser included offense of second degree felony murder.O'Brien, 857 S.W.2d at 222.In so doing, the Missouri Supreme Court cited with approval State v. Parker, 262 Mo. 169, 170 S.W. 1121, 1124(1914), where a robbery conviction was reversed for insufficient evidence and the case was remanded for trial on the lesser included offense of larceny.O'Brien, 857 S.W.2d at 221.In O'Brien, the Missouri Supreme Court also specifically overruled State v. Johnson, 710 S.W.2d 908(Mo.App.1986), where the court of appeals held that a defendant could not be retried for the lesser included offense of misdemeanor drunk driving when the evidence supporting his conviction for felony drunk driving was found insufficient on appeal.O'Brien, 857 S.W.2d at 221 n. 3.In O'Brien, the court noted that Johnson misconstrued retrial...