State v. Van Vleck, 57643

• Decision Date: 29 January 1991
• Docket Number: No. 57643,57643
• Citation: 805 S.W.2d 297
• Parties: STATE of Missouri, Respondent, v. Robert R. VAN VLECK, Appellant.
• Court: Missouri Court of Appeals

Page 297

805 S.W.2d 297

STATE of Missouri, Respondent, v. Robert R. VAN VLECK, Appellant.

No. 57643.

Missouri Court of Appeals,

Eastern District,

Division Two.

Jan. 29, 1991.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 13, 1991.

Application to Transfer Denied April 9, 1991.

Lew A. Kollias, John Klosterman, Columbia, for appellant.

William L. Webster, Atty. Gen., Robert P. Sass, Asst. Atty. Gen., Jefferson City, for respondent.

GARY M. GAERTNER, Presiding Judge.

Appellant, Robert Royal Van Vleck, appeals from his jury convictions of two counts of attempted kidnapping. Appellant was sentenced to consecutive terms of one and two years imprisonment. Appellant's sole point on appeal is that the state failed to prove an essential element of its case: an intent or purpose to kidnap the victims. We affirm.

We are advised to view the evidence in a light most favorable to the verdict and accept as true all reasonable inferences that support it. State v. Henderson, 743 S.W.2d 583, 586 (Mo.App., E.D.1988). To sustain the conviction, this evidence and its inferences must be strong enough to make a submissible case from which the jury could reasonably find the defendant guilty. Id.

Around 11:15-11:30 a.m. on the morning of May 15, 1989, Trudy Johnson returned to her automobile which was parked at the Chesterfield Mall Shopping Center in St. Louis County. Johnson had been shopping at the Mall with her two and one-half year old son, who was in a stroller. As she was attempting to place the child into his car-seat in the front passenger side of her car, appellant approached her from behind with a shopping bag looped around his arm. Appellant had approached her from his automobile which was parked a few rows away from Johnson's on the same lot. Johnson's auto was parked in the front row of the lot, near the Famous Barr entrance.

When appellant reached Johnson, he stated: "[d]o as I say. get in the car or I'll kill your baby." Johnson then turned and faced appellant, clearly able to identify his 265 pound frame. Johnson testified that she believed that appellant had a gun inside the bag which he carried in one hand and that he had his hand on the gun, pointing it at her.

Johnson further testified that appellant repeatedly requested that she get inside her car and that he continued to threaten her child. Undaunted by appellant's requests, Johnson screamed quite loudly and pushed the child's stroller against appellant in an attempt to fend him off. Some time thereafter, appellant shrugged and walked back to his car and drove away. He was apprehended shortly thereafter and was found to have two loaded handguns in the trunk of his car.

Appellant was charged with two counts of attempted kidnapping and two counts of armed criminal action. The jury trial of the matter took place on November 6, 7 and 8 of 1989, and the jury convicted appellant of the two attempted kidnapping charges but acquitted him of both armed criminal action counts. Following the court's acceptance of the jury's assessment of punishment, this appeal ensued.

Appellant's sole contention is that there was insufficient evidence of his intent or purpose to kidnap, as defined by Missouri statute. The kidnapping statute, RSMo § 565.110 (1986), in pertinent part, reads:

1. A person commits the crime of kidnapping if he unlawfully removes another without his consent from the place where he is found or unlawfully confines another without his consent for a substantial period, for the purpose of ...

(5) Inflicting physical injury on or terrorizing the victim or another.

Missouri Revised Statute § 564.011 (1986) defines an attempt as follows:

1. A person is guilty of attempt to commit an offense when, with the purpose of committing the offense, he does any act which is a substantial step towards the commission of the offense. A "substantial step" is conduct which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense.

2. It is no defense to a prosecution under this section that the offense attempted was, under the actual attendant circumstances, factually or legally impossible of commission, if such offense could have been committed had the attendant circumstances been as the actor believed them to be.

As applied to the present facts, an attempt to kidnap Ms. Johnson and her child would require sufficient evidence that appellant intended to remove them from their present locations or confine them without their consent in order to inflict physical injury or terrorize them. Further, appellant would need to have taken a substantial step toward this end. State v. Walker, 743 S.W.2d 99, 102 (Mo.App., E.D.1988). While we note that the State is required to prove "a very specific intent on the part of the actor," State v. Gonzales, 652 S.W.2d 719, 722 (Mo.App., W.D.1983), we also recognize that the intent of a particular actor is rarely susceptible of direct proof; the circumstances of each case need to be closely looked at. See State v. Garner, 800 S.W.2d 785, 787 (Mo.App., E.D.1990). We believe the State made a submissible case.

The gist of the evidence and its inferences from the jury's verdict was that appellant threatened grave consequences to Johnson's small child unless she got into her car immediately. While his request was done...