State v. O'Toole
| Decision Date | 25 June 2002 |
| Docket Number | No. ED 79997.,ED 79997. |
| Citation | 83 S.W.3d 622 |
| Parties | STATE of Missouri, Plaintiff/Respondent, v. Gregory T. O'TOOLE, Defendant/Appellant. |
| Court | Missouri Court of Appeals |
Alan G. Kimbrell, Chesterfield, MO, for Appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Stephanie Morrell, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
Gregory T. O'Toole (Defendant) appeals from a judgment of conviction of unlawful use of a weapon and impersonation of a law enforcement officer. Defendant alleges trial court error in denying his motion for judgment of acquittal at the close of all the evidence because the peaceful traveler exemption to the unlawful use of a weapon charge applied and the impersonation of a law enforcement officer conviction was unsupported by sufficient evidence. Defendant also alleges instructional error on both charges. We affirm the impersonation of a law enforcement officer conviction and reverse the unlawful use of a weapon conviction.
Viewed in the light most favorable to the verdict, the evidence presented at trial established the following relevant facts. On August 6, 2000, Phillip Hoffman (Hoffman), a corporal with the Missouri State Highway Patrol, was patrolling eastbound I-70 in Warren County when he observed a car with dealer license plates traveling about a half car-length behind the vehicle in front of it. Hoffman entered traffic and followed the car for almost two miles. The car continued to follow the vehicle in front of it at an unsafe distance so Hoffman stopped the car for following another vehicle too closely.
Hoffman approached the driver's side of the car, and before he could ask Defendant for his driver's license and proof of insurance, Defendant reached into his pocket and pulled out a bundle of business cards, money and a badge rubber banded together. Defendant held the badge up, told Hoffman that he was a police officer, and placed the bundle back into his pocket.
Hoffman asked Defendant for his identification. Defendant gave Hoffman a Missouri driver's license that identified him as Gregory T. O'Toole with a December 1944 birth date. Hoffman asked Defendant if he had a commission card that identified him as a police officer. Defendant gave Hoffman a card with the name Daniel J. O'Toole and a November 21, 1914 birth date. Hoffman asked Defendant why his driver's license name and birth date differed from the commission card. Defendant responded that Daniel was his brother's name but that the card was his.
Hoffman then asked to see other identification that identified Defendant as a police officer. Defendant gave Hoffman a St. Louis Police Officer Association membership card with the name Daniel O'Toole but with no picture or other identifying information. Hoffman asked Defendant why this card showed the name Daniel and not Gregory. Defendant stated that he did undercover investigations for the Circuit Attorney's office and that his brother works for the office too. Hoffman asked Defendant how the Circuit Attorney's office kept his and his brother's records separate if they work for the same department and use the same name. Defendant replied "that's just how they did it."
Hoffman looked more closely at the commission card, and he noticed that the picture appeared to be cut out of the card. Hoffman also noticed that the card was very old, the corners were coming apart, and the card was able to be folded away, exposing the back of the picture that had been taped to the card. The back of the picture had a sticker that was the same type of organ donor sticker issued on older driver's licenses. Hoffman further noticed that Defendant had five expired driver's licenses for Gregory O'Toole with him. The licenses were in three-year sequences from 1985 to 2000, with the year 1991 missing from the sequence.
Hoffman asked Defendant if he had a weapon in the car because he was claiming to be a police officer and Hoffman normally asked off-duty police officers about weapons in their vehicles. Defendant stated that he had a gun in the glove box. Hoffman did not seize the gun at that time because Defendant still was claiming to be a police officer and Hoffman still was trying to determine the truth of the claim.
Hoffman then asked to see the badge that Defendant originally showed him, and Defendant gave it to him. The badge was an investigator badge from the Circuit Attorney's office with a badge number of 32. Hoffman asked Defendant what was his badge number, and Defendant responded "36." When Hoffman informed him that the badge number was 32, Defendant stated
Hoffman asked Defendant who was his immediate supervisor, and Defendant responded "Joyce Hayes." Hoffman asked to whom he was directly responsible, to which Defendant responded that his father was a retired judge and that he had been a police officer in Texas. Whenever Hoffman inquired who was his supervisor, Defendant would begin naming people who Hoffman could call who knew Defendant. Hoffman recognized one name as a retired highway patrolman. Hoffman again asked Defendant who was his immediate supervisor that he could call to verify that he was a police officer, and again Defendant stated Joyce Hayes.
Hoffman returned to his patrol car and called the St. Louis City Police Department to verify that Defendant was a police officer there, which Hoffman was unable to verify. Hoffman then placed Defendant under arrest for impersonation of a law enforcement officer and read Defendant his Miranda warnings. Hoffman searched Defendant's car and found a Smith and Wesson .38 caliber five-shot revolver loaded with five rounds of .38 caliber ammunition in a black holster inside the unlocked glove box.
After transporting Defendant to jail, Hoffman spoke with Defendant, stating that it was unusual for a police officer not to remember his badge number. For the first time, Defendant stated that he was not a police officer. He stated that he was an investigator with the Circuit Attorney's office doing about one investigation per month, but that he had not done any investigations for about three months.
Subsequently, Hoffman contacted the St. Louis Circuit Attorney's office, the St. Louis City Police Department, the Florissant Police Department, and Defendant's brother's house. Hoffman did not receive any documentation or anything else that indicated that Defendant was a police officer. According to the St. Louis City Circuit Attorney's office personnel records, which went as far back as 1948, the office had never employed a Gregory O'Toole. A Daniel O'Toole and a Terrence Joseph O'Toole had been employed with the office at some time.
Defendant testified that at the time of his arrest, he was traveling from his house in Lake of the Ozarks to his primary house in Ferguson, Missouri. He stated that he had the gun for protection while traveling the highway.
Defendant was charged by second amended information with one count of unlawful use of a weapon (Count I), a Class D felony in violation of Section 571.030.1(1),1 one count of false impersonation (Count II), a Class A misdemeanor in violation of Section 575.120, and one count of following another vehicle too closely (Count III), a Class C misdemeanor in violation of Section 304.017. At the close of all the evidence at trial, Defendant filed a motion for judgment of acquittal, which the trial court denied. Subsequently, the jury returned a verdict finding Defendant guilty on all three counts. Defendant filed a Motion for New Trial, which the trial court also denied. The trial court entered a judgment in accordance with the jury verdict and sentenced Defendant to concurrent thirty-day jail terms and a $500 fine on each of Counts I and II and a $50 fine on Count III.2
Defendant raises four points on appeal. In his first point, Defendant argues that the trial court erred in denying his motion for judgment of acquittal at the close of all the evidence for the unlawful use of a weapon charge because evidence was introduced showing that Defendant was "traveling in a continuous journey peaceably through this state," without evidence to the contrary, and the State failed to meet its burden of negating this special negative defense.
Section 571.030 provides in relevant part:
1. A person commits the crime of unlawful use of weapons if he or she knowingly:
(1) Carries concealed upon or about his or her person a knife, a firearm, a blackjack or any other weapon readily capable of lethal use;
. . .
3. .... Subdivision (1) of subsection 1 of this section does not apply when the actor ... is traveling in a continuous journey peaceably through this state.
The peaceful traveler's exemption enables travelers to protect themselves on the highways against perils that typically do not face them back home among their neighbors. State v. Murray, 925 S.W.2d 492, 493 (Mo.App. E.D.1996). The exemption applies to interstate and intrastate travel, but its application depends on whether the defendant was a traveler on a journey. Id. at 494. Further, the exemption does not extend to persons traveling through the state during the commission of a felony or for any unlawful purpose or for a breach of the peace. State v. Purlee, 839 S.W.2d 584, 592 (Mo. banc 1992). For purposes of the exemption, "peaceably" means not quarrelsome, friendly, without contention or strife, quiet and orderly. State v. Collins, 879 S.W.2d 585, 586 (Mo.App. W.D.1994). Once a defendant raises the defense that he or she is within the exemption, the State has the burden of proving the defendant is not within the exemption. Purlee, ...
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