State v. Vinson, s. 55212
| Decision Date | 14 July 1992 |
| Docket Number | Nos. 55212,60710,s. 55212 |
| Citation | 834 S.W.2d 824 |
| Court | Missouri Court of Appeals |
| Parties | STATE of Missouri, Respondent, v. Ivan VINSON, Defendant/Appellant. Ivan VINSON, Movant/Appellant, v. STATE of Missouri, Respondent. |
Brad B. Baker, Columbia, for defendant/appellant.
William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant, Ivan Vinson, appeals from jury convictions of two counts of first-degree robbery in violation of § 569.020 RSMo 1986 and one count of armed criminal action in violation of § 571.015.1 RSMo 1986. Defendant also appeals the denial of his Rule 29.15 motion after an evidentiary hearing. Defendant was sentenced as a prior and persistent offender to three consecutive terms of life imprisonment, said sentences to run consecutively to defendant's prior sentences. We affirm the conviction and dismiss the post-conviction appeal.
The sufficiency of the evidence is not in dispute. Viewed in a light most favorable to the verdict, the evidence adduced at trial revealed the following facts. At approximately 2:15 p.m. on September 6, 1986, defendant and two other men entered a Phillips 66 service station on Second Street in the City of St. Charles. The three sat at a table for approximately twenty minutes. One man left the store. Shortly thereafter, defendant walked behind the cashier's counter, drew a large revolver, and instructed the cashier to "move." Defendant pointed the gun at a customer and stated, "Don't move, lady." He removed the cash drawer and the money underneath it and fled from the store with the third man, who was holding the front door ajar.
The men ran south, jumped a fence, and approached a yellow Ford parked in a parking lot. The man who held the door at the gas station entered the backseat; defendant handed him the cash drawer, entered the backseat, and held the gun up to the car's rear window. The vehicle headed south on Second Street. The cashier contacted the police and described defendant.
Upon hearing commotion within the store, the manager emerged from his back office. He exited the store and spotted money lying ten to twelve feet south of the front door. He pursued the yellow Ford in his car but lost sight of it as it crossed the Highway 115 bridge into St. Louis County.
An off-duty employee and her boyfriend searched for the cash drawer that defendant had removed during the robbery. They crossed the Highway 115 bridge and located the drawer on the side of the road approximately forty to fifty feet from the Earth City Expressway entrance. Using a piece of newspaper to avoid leaving fingerprints, the boyfriend retrieved the drawer and turned it over to police. Latent fingerprints taken from the cash drawer matched defendant's fingerprints.
At a line-up conducted roughly two months after the incident, the cashier and customer involved in the incident positively identified defendant as the robber. Both also identified defendant at trial.
At approximately 1:55 a.m. on November 18, 1986, defendant entered the Shell service station on Fifth Street in the City of St. Charles. Defendant got a sandwich from the refrigerator case, approached the cashier, and asked for a bottle of cognac. When the cashier stated he could not sell alcohol at that time of day, defendant stated, "Well, in that case, give me all your money." Defendant walked behind the counter, pulled a small caliber revolver out of his pocket, and stood behind the cashier. A customer was headed toward the front door, and defendant ordered him to "freeze." The cashier asked defendant if he was sure he wanted to do this, and defendant replied, "Pop the drawer before I pop you." The cashier opened the cash register drawer, and defendant removed the cash compartment and fled out the front door.
The cashier telephoned the police and saw a black Camaro with its headlights off travelling down the road beside the station. With the customer's help, the cashier described the vehicle to police and watched it turn south onto Fifth Street and proceed eastbound onto Interstate 70 toward St. Louis County. A police officer arrived at the service station approximately one minute after the cashier's call; the cashier gave the officer the description of defendant and the suspect vehicle, which the officer broadcast. Shortly thereafter, the officer received a dispatch indicating police had stopped a vehicle matching the description broadcast. The officer took the cashier and customer to the site of the vehicle stop at Interstate 70 and Florissant Road; the cashier identified defendant as the man who had robbed him.
The officer returned the witnesses to the service station and seized a security camera videotape that had recorded the robbery. A blank pistol and its cylinder were found on the north side of the gas station parking lot approximately thirty feet from the front door.
The videotape was played for the jury at defendant's trial. Defendant testified on his own behalf and denied involvement in either robbery. The jury found defendant guilty on all counts.
The record indicates defendant filed a Rule 29.15 motion for post-conviction relief, which was denied after an evidentiary hearing. Defendant filed an appeal of the denial with the circuit court on August 28, 1991. On September 3, 1991, the appeal was consolidated with defendant's previously filed direct appeal. However, an examination of defendant's brief reveals no point of error challenging the denial of the 29.15 motion. Accordingly, defendant has abandoned his 29.15 appeal and that appeal is dismissed. State v. Barnard, 820 S.W.2d 674, 677 (Mo.App.1991).
In point one of his direct appeal, defendant alleges the trial court erred in denying his pre-trial motion for severance. Defendant contends the introduction of evidence relating to the Shell robbery on November 18, 1986, was "necessarily prejudicial" to defendant at his trial on the robbery and armed criminal action charges arising from the Phillips robbery on September 6, 1986.
In reviewing defendant's claim, we first determine whether the offenses were properly joined. State v. Hughes, 787 S.W.2d 802, 804 (Mo.App.1990). If joinder was proper, we then determine whether the trial court abused its discretion in refusing to sever the offenses. Id.
Two offenses may be joined in one indictment or information if the offenses are (1) of the "same or similar character" or (2) based on the "same act or transaction" or on two or more acts that are "connected together" or constitute parts of a "common scheme or plan." § 545.140.2 RSMo 1986; Rule 23.05. Liberal joinder of charges is favored, and the trial court's decision whether to join the charges should be based only on the state's evidence. State v. Forister, 823 S.W.2d 504, 509 (Mo.App.1992).
We find the offenses sufficiently similar to permit joinder. 1 Both cases involved a robbery of a service station/food mart in the City of St. Charles within a two-month period. Defendant brandished a revolver in both cases, ordered customers to "freeze," and went behind the cashiers' counters to complete the robberies. In both cases, defendant removed the entire cash register insert and fled through the front door to a waiting vehicle, which then proceeded into St. Louis County.
Defendant cites numerous differences between the cases, including the times of the robberies, the number of accomplices involved, the size of the weapon used, the makes of the getaway vehicles, the seizure of a weapon in only one of the robberies, and the presence of fingerprints at one crime scene but not the other. In our view, however, the strength of the offenses' similarities in time, manner, and general location overcome the cited differences. Importantly, the offenses need not be identical in every detail in order to be joined in the same information. State v. Johnson, 753 S.W.2d 576, 583 (Mo.App.1988). Rather, it is sufficient if the tactics "resemble or correspond in nature." Hughes, 787 S.W.2d at 804. Given the rule favoring liberal joinder, we find the offenses here sufficiently similar. 2
Having found the joinder of offenses proper, we consider the trial court's refusal to sever the offenses. A motion to sever offenses is governed by §...
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State v. Brooks
...of a distinctive group on a particular jury panel does not establish the systematic exclusion of that group." State v. Vinson, 834 S.W.2d 824, 828 (Mo.App.1992). Furthermore, contrary to appellant's assertion, the mere proof of the statistical disparity of African-American populations in St......
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...and whether the jury is able to realistically distinguish the evidence and apply the law intelligently to each offense. State v. Vinson, 834 S.W.2d 824, 827 (Mo.App.1992). Defendant seems to focus on the last element of Vinson, that is, whether the jury can realistically distinguish the evi......
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...713, 718 (Mo.App.1992). The offenses or tactics need not be identical in every detail. Tobias, 873 S.W.2d at 653; State v. Vinson, 834 S.W.2d 824, 827 (Mo.App.1992). The evidence shows that all the robberies were of fast food restaurants, in the evening hours, with men armed with .9 millime......
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