State v. Turnbough, 40702.

• Citation: 604 S.W.2d 742
• Decision Date: 15 October 1980
• Docket Number: No. 40702.,40702.
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Joseph TURNBOUGH, a/k/a Joseph Richard Turnbough, Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

604 S.W.2d 742

STATE of Missouri, Plaintiff-Respondent, v. Joseph TURNBOUGH, a/k/a Joseph Richard Turnbough, Defendant-Appellant.

No. 40702.

Missouri Court of Appeals, Eastern District, Division Two.

August 6, 1980.

Motion for Rehearing and/or Transfer Denied September 12, 1980.

Application to Transfer Denied October 15, 1980.

Richard L. Geissal, Jr., Simon & Fitzgibbons, P. C., St. Louis, for defendant-appellant.

John Ashcroft, James R. Cumbee, Paul Robert Otto, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.

Motion for Rehearing and/or Transfer to Supreme Court Denied September 12, 1980.

STEPHAN, Judge.

Defendant Joseph Richard Turnbough appeals his conviction of the offense of carrying a concealed weapon, § 564.610, RSMo 1969. Trial was had on May 23, 1978, before the court, sitting without a jury. When the court announced the verdict, punishment was assessed at four years imprisonment. However, at the formal sentencing and after hearing evidence favorable to defendant's reputation, the court imposed a three year sentence. We affirm.

Defendant's arrest resulted from an altercation between defendant and Steven Sittingdown and Davey Crawford on September 10, 1977. The automobile in which Crawford and Sittingdown were riding apparently stalled at a stop sign on a south St. Louis street. While they attempted unsuccessfully to get it started, defendant's automobile and a Bi-State bus became blocked behind it. Sittingdown became angered when the bus driver began honking his horn, and, thinking defendant to be the obstreperous party, he got out of his car and began verbally to abuse defendant. Defendant at this point essentially tried to ignore Sittingdown. That tactic proved impractical, however, when Sittingdown subsequently removed a section of automobile exhaust pipe from the trunk of his car, returned to defendant's automobile and began to threaten defendant with it. Defendant countered by exhibiting a .38 caliber revolver (which subsequently proved to be fully loaded) with which he threatened to strike Sittingdown. Sittingdown began to back away. Defendant exited his car, struck and knocked Crawford down and began to pursue Sittingdown around the latter's car while Sittingdown continued his invective against defendant. At this point Officer Kenneth Weger of the St. Louis Police Department intervened. The altercation subsided when the participants saw Weger's squad car approaching. When Weger reached the scene of the disturbance, he was informed by either Crawford or Sittingdown that defendant had a gun. Weger ordered defendant to place his hands on the top of his car, frisked him, discovered the revolver and removed it from defendant's waistband.

Officer Weger was the state's sole witness at trial. He testified that he frisked defendant solely on the strength of the information received from Crawford; that defendant was wearing his shirt with the tails hanging outside his trousers; and that he, Weger, did not see the revolver until he removed it from defendant's waistband. Defendant and Sittingdown, appearing on defendant's behalf, testified that defendant stuck the revolver in the front of his waistband as Weger approached and that defendant's shirt, though hanging free, was unbuttoned and that the handle of the gun was therefore visible at all times. Defendant testified that he put the revolver in his trousers for fear that Weger would shoot him should he keep it in his hand; but that he was well aware of the consequences of concealment because of his past record¹ and that he therefore indicated to Weger upon the officer's approach that he had the revolver in his waistband. Weger denied that he was so informed by defendant. Defendant's motions for acquittal at the close of the state's case and at the close of all the evidence were denied.

In his first assignment of error, defendant appears to contend that the state failed to prove beyond a reasonable doubt the requisite element of concealment. The thrust of the argument is that there was no concealment within the meaning of the statute here because the existence of the weapon was known to all relevant parties at all relevant times: Sittingdown and Crawford learned that defendant was carrying a gun "at the very beginning of the altercation" and Officer Weger was informed of that fact immediately upon approaching the scene. The scope of our review herein is the same as that in a jury-tried case. State v. Mares, 570 S.W.2d 332, 333 (Mo.App.1978). We are to determine if there was substantial evidence to support the court's finding. State v. Odzark, 532 S.W.2d 45, 49 (Mo.App.1976). In doing so, we accept as true all evidence and all inferences reasonably drawn therefrom which are favorable to the verdict; we disregard all evidence to the contrary. State v. Achter, 514 S.W.2d 825, 826 (Mo.App.1974); State v. Jordan, 495 S.W.2d 717, 719 (Mo. App.1973).

We need not consider defendant's argument that a general awareness of the existence of a weapon precludes a finding that defendant was concealing the weapon, for we do not believe the evidence supports defendant's contention that Sittingdown was aware of the weapon "at the very beginning of the altercation." According to the testimony of defendant and Sittingdown, Sittingdown first approached the driver's side of defendant's vehicle and berated defendant for a short time; he then retrieved a pipe from the trunk of his own car and returned to defendant's window; at that point he first saw a revolver in defendant's hand. Whether a weapon is concealed within the meaning of the statute is determined by whether it is discernible by ordinary observation. State v. Cavin, 555 S.W.2d 653, 654 (Mo.App.1977); State v. Odzark, supra, 49. It is concealed "upon or about" the person of defendant when it is in "such close proximity to defendant so as to be within his easy reach and convenient control." Achter, supra, 827. See also Jordan, supra, 720. The evidence here supports the inference that the weapon was concealed from Sittingdown's view on his first approach to defendant, although Sittingdown was standing at the window of the automobile for some time and looking down into its interior. And although there was no evidence as to where the gun had been concealed, the record indicates that defendant was able to retrieve it, either from his person or a location in the car, in a short time without exiting the car. Cf. Odzark, supra. The weapon was not exhibited to Sittingdown until he had considerably escalated the altercation. If in fact the purpose of the concealment statute is, as defendant contends, to prevent an armed party from allowing an unwitting opponent to draw himself into a conflict in which he is clearly overmatched, this is precisely the situation for which the statute was written. We rule the point against defendant.

Defendant next asserts that the trial court erred in denying him leave to file a second amended motion for new trial. A verdict was returned in this case on May 23, 1978. Defendant requested and received a thirty-day extension of time in which to file a motion for new trial (beyond the ten days granted as of right), as provided in Rule 27.20(a).² Defendant timely filed a motion and an amended motion within the period of that extension, which expired on July 3, 1978, July 2 having been a Sunday. On July 14 defendant requested leave to file a second amended motion, which differed from the amended motion only in that defendant claimed to have discovered crucial new evidence, i. e., the identity of the bus driver who witnessed the disturbance. During the hearing on defendant's amended motion, at which time the present request to file was also considered, defendant offered to prove that the driver's substantive testimony would indicate that the weapon was at no time concealed and that Officer Weger took it from defendant without having to frisk him. The court denied leave to file the second amended motion for the reason that it was not timely.

At the time leave was denied, the grounds on which a new trial could be granted were enumerated in Rule 27.19 and specifically included "newly discovered evidence."³ Defendant argues that if the ground of newly discovered evidence is treated as the other grounds and is ruled to be subject to the same time strictures contained in Rule 27.20, that remedy would be effectively nullified in most cases. Defendant appears to be contending that, at least in cases in which a timely motion for new trial...