State v. Ware

• Citation: 326 S.W.3d 512
• Decision Date: 16 November 2010
• Docket Number: No. SD 29794.,SD 29794.
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Kenneth WARE, Jr., Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

326 S.W.3d 512

STATE of Missouri, Plaintiff-Respondent,

v.Kenneth WARE, Jr., Defendant-Appellant.

No. SD 29794.

Missouri Court of Appeals,

Southern District,

Division One.

Nov. 16, 2010.

Stuart P. Huffman of Springfield, MO, for Appellant.

Chris Koster, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen. of Jefferson City, MO, for Respondent.

JEFFREY W. BATES, Judge.

A jury convicted Kenneth Ware, Jr. (Defendant) of robbery in the first degree and armed criminal action. See §§ 569.020, 571.015.¹ On appeal, Defendant presents eight points of alleged error. Finding no merit in any of these points, we affirm. For ease of analysis, we address Defendant's points out of order.

Points II and III

Defendant's second and third points challenge the sufficiency of the evidence to support his conviction. We view the evidence and all reasonable inferences derived therefrom in the light most favorable to the verdict; all contrary evidence and inferences are disregarded. State v. Belton, 153 S.W.3d 307, 309 (Mo. banc 2005). "We defer to the jurors' superior position to weigh and value the evidence, determine the witnesses' credibility and resolve any inconsistencies in their testimony." State v. Lopez-McCurdy, 266 S.W.3d 874, 876 (Mo.App.2008). Viewed from this perspective, the following evidence was presented at trial.

Shortly before 8:00 p.m. on December 18, 2004, Mary Strozewski (Victim) drove to the Wal-Mart in Ozark, Missouri to go shopping. After making her purchases, she walked through the parking lot to her car. Her purse contained her wallet, a small amount of cash, a credit card, a bank debit card, her reading glasses, an EBT card and the PIN needed to use it.² Victimhad opened the driver's door to her car and placed her purse on the seat when someone yelled at her. As she turned to her left toward the voice, Defendant was standing about six inches away. He backed Victim against her door, so she could not move. Victim was able to see Defendant's face and clothing. He was a black male approximately the same height as Victim, who was 5'6? tall. Defendant was wearing dark clothes and a black hooded sweatshirt. He displayed a steak knife with a serrated blade in his right hand. Defendant jabbed the knife toward Victim's stomach and demanded her purse. Victim complied, and Defendant told her to get in her car and drive away. Defendant went behind Victim's car and disappeared into a row of cars. Victim reported the theft to Wal-Mart employees, who called the police.

Officer Scott Forrester of the Ozark Police Department met Victim inside the store. She told Officer Forrester what had happened and gave him a description of the robber. Victim stated that "[s]he was sure that she got a good look at him and she could identify him." After speaking with Victim, Officer Forrester reviewed Wal-Mart's parking lot surveillance video. He observed a blue 1990's model Chevrolet Cavalier (the Cavalier) one lane over from Victim. The Cavalier was driving very slowly and pacing Victim. The Cavalier stayed even with Victim as she was walking out toward her vehicle. The Cavalier then parked one row away from Victim. A dark figure got out of the vehicle, approached Victim and then returned to the Cavalier. As Officer Forrester watched the Cavalier on the videotape, he noticed three unusual features on the car: (1) it lacked regular license plates; (2) it had aftermarket chrome spoke wheels or hubcaps; and (3) there was something in the upper-back left window that might have been a temporary license plate.

After taking Victim's statement, Officer Forrester returned to the police department. He described the suspect vehicle that he had seen in the surveillance videotape to other officers. Based upon information provided by Officer Jared Roderick, Officers Forrester and Roderick went to a residence in the Oak Hill subdivision in Ozark. The officers arrived approximately four hours after the robbery had occurred. The Cavalier, which lacked license plates and had aftermarket hubcaps and a temporary license plate in the upper left corner of the rear window, was parked in front of the house. Officer Justin Clamors, Officer Michael Bryan and Detective David Southard also arrived at the house to assist in the investigation.

Officer Forrester spoke with Brianne Coffman (Coffman), who was one of the residents of the house. Officer Forrester learned that the Cavalier was owned by Lunda Croney (Croney). She told Officer Forrester there was no black male in the home. Officers Clamors and Bryan were guarding the back of the house. From that vantage point, Officer Bryan could see into the living room, kitchen, hallway and back bedroom. He could see a female resident speaking with Defendant in the bedroom. Coffman refused to allow police to enter the residence. After a discussion with Detective Southard, however, Coffman's father as lessee of the house consented to a search of the premises. Detective Southard and Officers Forrester and Roderick entered the house. Officer Clamors radioed that there was a male running out the back. Officer Clamors apprehended Defendant in the back yard as he tried to flee. On December 23, 2004,Victim was shown a photographic lineup containing six pictures. Victim picked Defendant's photograph from the lineup.

Defendant contends the trial court erred in denying his motions for judgment of acquittal filed at the close of the State's evidence (Point II) and at the close of all of the evidence (Point III).³ Defendant argues that the State presented insufficient evidence to prove guilt beyond a reasonable doubt because the evidence against him was circumstantial. Appellate review is limited to determining whether there was sufficient evidence from which a reasonable trier of fact could have found each element of the offenses to have been established beyond a reasonable doubt. State v. Reed, 181 S.W.3d 567, 569 (Mo. banc 2006).

The first charge against Defendant was first-degree robbery, which can be committed four different ways. § 569.020.1(1)-(4). Defendant was charged with a violation of § 569.020.1(4). In the context of this case, the required elements of that offense are: (1) Defendant forcibly stole property from Victim; and (2) in the course thereof, Defendant displayed or threatened the use of what appeared to be a deadly weapon or a dangerous instrument. State v. Woodson, 140 S.W.3d 621, 628 (Mo.App.2004).⁴ Victim testified that her purse was stolen at knifepoint in the Wal-Mart parking lot by Defendant. During the encounter, Defendant jabbed the knife toward Victim's stomach while demanding her purse. She positively identified Defendant as the robber during the photo lineup and again at trial. Victim's eyewitness testimony alone is sufficient to support Defendant's conviction for first-degree robbery. State v. Barnes, 693 S.W.2d 331, 332 (Mo.App.1985). Forcible stealing includes the use or threatened use of physical force to compel the owner to deliver up his or her property. § 569.010(1); State v. Merrick, 257 S.W.3d 676, 683 (Mo.App.2008). Victim's testimony that Defendant used a steak knife with a serrated blade to commit the robbery was sufficient evidence from which the jury could find that forcible stealing had occurred. Martin v. State, 187 S.W.3d 335, 340 (Mo.App.2006) (defendant's act of placing knife near victim's throat and taking his property constituted forcible stealing). Victim's testimony that Defendant displayed and threatened to use the knife was sufficient evidence from which the jury could find that Defendant used a dangerous instrument during the course of the robbery. See id. (a knife used in a threatening manner is a dangerous instrument).

The second charge against Defendant was armed criminal action. § 571.015.1. The elements of this crime are: (1) Defendant committed a felony; and (2) that crime was committed "by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon[.]" Id. First-degree robbery is a class A felony. § 569.020.2. "A knife used in athreatening manner is a dangerous instrument." State v. Jackson, 865 S.W.2d 678, 680 (Mo.App.1993). Victim's testimony provided sufficient evidence from which the jury could find Defendant guilty beyond a reasonable doubt of armed criminal action. See, e.g., State v. Williamson, 836 S.W.2d 490, 495 (Mo.App.1992) (evidence that defendant used a knife during a robbery was sufficient for the jury to find him guilty of armed criminal action).

Defendant's complaint that the evidence against him was "circumstantial" is unpersuasive. Victim's eyewitness testimony constituted direct evidence of Defendant's participation in these crimes. State v. Watkins, 804 S.W.2d 859, 860 (Mo.App.1991). This evidence alone was sufficient for the jury to find Defendant guilty. State v. Williams, 277 S.W.3d 848, 853 (Mo.App.2009). Moreover, a jury is entitled to give circumstantial evidence the same weight as direct evidence when drawing reasonable inferences from the evidence presented. State v. Minner, 311 S.W.3d 313, 324 (Mo.App.2010); State v. Hagensieker, 299 S.W.3d 302, 305 (Mo.App.2009). The surveillance videotape showed that the Cavalier was used during the robbery. When police located the Cavalier about four hours later parked in front of a house, Defendant was found inside. He attempted to flee when police entered the residence. The jury could infer consciousness of guilt from Defendant's flight. See State v. Eoff, 193 S.W.3d 366, 377 (Mo.App.2006). The circumstantial evidence connecting Defendant to these crimes was strong, and the jury was entitled to rely upon such evidence, as well as Victim's testimony, to find Defendant guilty. Points II and III are denied.

Point VIII

Defendant's eighth point relates to the judge's denial of a request to quash the entire venire. The following facts are relevant to this allegation of error.

After the venire panel was sworn by the clerk and MAI-CR 3d 300.02 was read, venireperson Maggard raised her...