State v. Tobias, 63161

• Decision Date: 05 April 1994
• Docket Number: No. 63161,63161
• Citation: 873 S.W.2d 650
• Parties: STATE of Missouri, Respondent, v. Arnold TOBIAS, Appellant.
• Court: Missouri Court of Appeals

Page 650

873 S.W.2d 650

STATE of Missouri, Respondent, v. Arnold TOBIAS, Appellant.

No. 63161.

Missouri Court of Appeals,

Eastern District,

Division Four.

April 5, 1994.

S. Paige Canfield, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Traci J. Sanders, Asst. Atty. Gen., Jefferson City, for respondent.

CARL R. GAERTNER, Judge.

Defendant, Arnold Tobias, was convicted of one count of kidnapping, three counts of forcible sodomy, two counts of forcible rape, one count of first-degree burglary, three counts of first-degree robbery, two counts of second-degree robbery, and one count of stealing a motor vehicle. Defendant was sentenced to serve eight consecutive life sentences plus 45 years.

The evidence presented at trial, viewed in the light most favorable to the verdict, is as follows. At 1:30 a.m. on August 23, 1990, Thomas Gibbons and K.S. returned to his residence in the Central West End in St. Louis. As they reached the first floor landing of Gibbons' apartment building, defendant approached, waving a small silver gun. Defendant then demanded and took cash and jewelry from the couple. He took K.S.'s car keys, announced they were going for a ride, and told Gibbons to lie facedown on the ground and remain in the building. Defendant grabbed K.S., led her to the car, put her in the driver's seat, and sat in the front passenger seat holding the gun in his lap.

Defendant ordered K.S. to drive near St. Louis University's campus and eventually directed her to stop in an alley. Defendant took $25 from the glove compartment and raped and sodomized K.S. After he ordered her to exit the alley, defendant got out of the car and let K.S. drive away. K.S. drove to a police station and reported the incident. The police took her to Barnes Hospital where doctors examined her and determined she had been sexually assaulted. At a lineup on November 8, 1990, K.S. identified defendant as her assailant. Later, Gibbons also identified defendant in a photographic lineup.

J.I. lived in the Central West End with her mother. On August 27, 1990, at 10:30 a.m., J.I. was home alone when defendant rang the doorbell. She answered the door, and defendant told her that her father had been in an accident in the vicinity. J.I. opened the door to look up the street, and defendant displayed a small silver gun, ordered her to open the door, and forced her to go upstairs. Defendant took some jewelry, led J.I. into a bedroom, made her lie facedown on the bed, and bound her arms behind her back. Defendant left, ordering J.I. to remain still until he was gone. J.I. then went downstairs to her cousin's apartment, and her cousin called the police.

At 8:15 a.m. on October 22, 1990, Y.H. was alone in her home in the Central West End. She went to the basement to check her iron, opened the door, and saw defendant standing in the basement. Defendant displayed a screwdriver and told her, "Just be quiet, otherwise I'll kill you." Defendant pushed Y.H. to the floor, searched her school bag, and took $5.

Defendant took Y.H. upstairs, tied her wrists and ankles, and forced her to lie facedown on the floor. Defendant searched the entire house and took some jewelry, a Japanese sword, Japanese coins, and Y.H.'s wedding ring. Defendant then removed his pants and Y.H.'s pants and attempted to rape her. He fondled her and forced her to perform oral sex. Defendant took her car keys and left in her car. Y.H. called her husband who then called the police.

On October 23, 1990, the police recovered Y.H.'s vehicle, which was occupied by defendant's brother, Anthony, and Anthony's wife, Andria. On the same day, the police obtained a search warrant for defendant's residence and recovered Japanese coins from his bedroom while executing the warrant. At a lineup on November 8, 1990, Y.H. could not identify defendant as her assailant. However, while she waited at the police station, an officer walked through the waiting room carrying a leather jacket which had been seized from defendant during his arrest. Y.H. recognized it as the same jacket her assailant had worn.

D.R. lived in the Central West End with her sister, her father, and her father's girlfriend. At 5:00 a.m. on October 30, 1990, defendant entered her bedroom, motioning and telling her to be quiet.

Defendant demanded money and jewelry from D.R. and took two of her rings. He removed her clothes and sodomized and raped her. Defendant continued to ask for money and jewelry and eventually took three traveler's checks. Defendant tied D.R.'s feet and hands, took more jewelry, and searched her closet. Defendant then took D.R.'s spare car key and left in her car.

D.R. called the police. After she gave police a description of defendant, D.R. went to Jewish Hospital where doctors examined her. D.R.'s neighbor also called the police to report that in the early morning she heard car gears grinding, looked out the window and saw D.R.'s car speeding down the street. Later, D.R. viewed a lineup and identified defendant as her assailant.

Defendant was arrested at 4:30 p.m. on November 8, 1990, at his nephew's home. At trial, he presented alibi evidence and a theory that some of the victims misidentified him as their assailants.

On April 11, 1991, an indictment was filed, charging defendant with 15 criminal offenses. After a hearing, the trial court severed one offense, an unrelated purse snatching, but denied the remainder of defendant's motion to sever the offenses. The case went to trial on October 19, 1992. At the close of evidence, the trial court granted defendant's motion for judgment of acquittal regarding one offense, a charge of feloniously restraining J.I. Defendant was convicted on the remaining thirteen counts. On appeal, defendant raises eight points of error.

I. Severance

In his first point, defendant contends the trial court erred in refusing to sever for trial the offenses relating to each victim. This contention requires a two-step analysis. First, we must determine whether the offenses were properly joined in the indictment. State v. Forister, 823 S.W.2d 504, 508 (Mo.App.1992); State v. Hughes, 787 S.W.2d 802, 804 (Mo.App.1990). Then, if joinder was proper, we must determine whether the trial court abused its discretion in refusing to sever the offenses. Id. Joinder is either proper or improper under the law, but severance is within the trial court's discretion. Forister, 823 S.W.2d at 508-509.

Two or more offenses may be joined in one indictment if the offenses are of the "same or similar character" or based on the "same act or transaction" or on two or more acts that are "connected together" or constitute a "common scheme or plan." § 545.140.2 RSMo.1986; Rule 23.05. To achieve judicial economy, liberal joinder of criminal charges is favored. State v. Davis, 825 S.W.2d 948, 953 (Mo.App.1992). Similar tactics are sufficient to qualify as acts of the same or similar character. However, identical tactics are not required. State v. Olds, 831 S.W.2d 713, 719 (Mo.App.1992).

On appeal, defendant has not raised a challenge to the joinder of the offenses. While they were not identical, we find the offenses were sufficiently similar in time, manner and geographic location to permit joinder.

The next question is whether the trial court abused its discretion in denying defendant's motion to sever the offenses. A motion to sever is governed by § 545.885 RSMo.Supp.1993 and Rule 24.07. If it appears that a defendant is prejudiced by the joinder of offenses, a court may grant severance upon a particularized showing of substantial prejudice. § 545.885.2 RSMo.Supp.1993; Rule 24.07(b). A denial of severance will not be reversed absent an abuse of discretion and a clear showing of prejudice. Olds, 831 S.W.2d at 719.

The recent decision of the Missouri Supreme Court in State v. Conley, 873 S.W.2d 233 (Mo. banc 1994) provides us with guidance in reviewing the trial court's exercise of discretion in denying a defendant's motion for separate trial of multiple offenses.

"A relevant factor in the determination of prejudice is whether evidence of separate crimes would have been inadmissible propensity evidence had the two crimes not been joined. However, even where the evidence would not be admissible if the charges are tried separately, any prejudice may be overcome where the evidence with regard to each crime is sufficiently simple and distinct to mitigate the risks of joinder." Conley, at 238.

Here, the evidence regarding each crime was simple and distinct. Therefore, in accord with the Supreme Court's latest controlling decision, we find the possible prejudice that jurors might resolve a doubt concerning defendant's guilt of one crime because of evidence he committed another crime is overcome by simplicity and distinctness. Point denied.

II. Batson Challenge

Defendant next argues the trial court erred in overruling his challenge, under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to the State's peremptory challenge of a black venirewoman. The record shows the assistant circuit attorney stated race-neutral reasons for striking the venirewoman. Defendant's attorney attempted to show these reasons were pre-textual by pointing to what she described as "similarly situated" white venirepersons. The trial court rejected this argument and accepted the reasons stated by the assistant circuit attorney. We find no abuse of trial court discretion. The white venirepersons were not within the scope of the reasons given for striking the black venirewoman. The trial court's determination was not clearly erroneous. See State v. Parker, 836 S.W.2d 930, 939 (Mo. banc 1992). Point denied.

III. Burden of Proof Instruction

Defendant contends the trial court plainly erred in giving Instruction # 4, MAI-CR3d 302.04, defining the burden of proof. Our Supreme Court has consistently rejected identical attacks on this instruction. State v. Ervin, 835 S.W.2d 905, 924 (Mo. banc 1992); State v....