State v. Woodson

• Citation: 140 S.W.3d 621
• Decision Date: 12 August 2004
• Docket Number: No. 25384.,25384.
• Parties: STATE of Missouri, Plaintiff-Respondent, v. James L. WOODSON, Defendant-Appellant.
• Court: Missouri Court of Appeals

140 S.W.3d 621

STATE of Missouri, Plaintiff-Respondent, v. James L. WOODSON, Defendant-Appellant.

No. 25384.

Missouri Court of Appeals, Southern District, Division Two.

August 12, 2004.

Appeal from the Circuit Court, Scott County, David A. Dolan, J Kent Denzel, Asst. Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa M. Eaton, Asst. Atty. Gen., Jefferson City, for respondent.

JOHN E. PARRISH, Presiding Judge.

James L. Woodson (defendant) appeals convictions for two counts of the Class A felony, robbery in the first degree. § 569.020.¹ Defendant was charged as, found to be, and sentenced as a persistent offender. See § 558.016. This court affirms.

"For purposes of appellate review, evidence that supports the verdict is taken as true, together with all reasonable inferences favorable to the verdict. Evidence to the contrary is disregarded." State v. Scott, 78 S.W.3d 806, 808 (Mo.App.2002).

Defendant was identified as the person who committed a robbery of a Citgo service station in Cape Girardeau on August 19, 1999. Shannon Shipman and his brother, Anthony Shipman, had stopped at the Citgo station. Anthony went inside the store while Shannon waited in a truck outside. While seated in the truck, Shannon heard and saw the robbery committed. Shannon explained:

When I pulled up to the Citgo, my brother got out of the truck, was going in to get a cup of coffee. I was plugging my cell phone in. As soon as he walks in, I see the gentleman kind of take him and the door was still partially open, and it sounded like he said, "Get on the floor,"....

Shannon was parked directly in front of double doors that led into the store. He told the trial court he was "kind of hunkered down" in his truck; that he saw the robber come out of the store. He said the robber "walked out, took his do-rag off or whatever you call it, and commenced to look both sides and took off running." Shannon saw the robber's face. He called 911 and reported the robbery.

Shannon gave the police a statement the day of the robbery. They contacted him again at a later date to obtain his assistance in constructing a computerized drawing based on his recollection of the robber's appearance. He later identified defendant as the robber from photographs the police provided. At trial Shannon Shipman identified defendant as the robber.

Shortly after midnight on August 22, 1999, a Cape Girardeau Pizza Hut was robbed. A person who appeared to have a gun entered the store and shouted that he wanted everyone down on the ground, and he wanted the money from the cash register. An employee of Pizza Hut, Louis Madison Hogan, Jr., explained:

Well, the register was locked and about three of them got down on the ground and I was still standing, and I paused there for a second and my dad went to the back, grabbed the phone and dialed 911, and the next thing I know, he had his back turned and I went behind him. After a few seconds his back was turned, I noticed on the gun that it was not real, through the hole of the barrel because it was closed off.

Louis was asked what happened next. He answered, "He knocked the phone out of my dad's hand, left it hanging and he hit him and he fell towards the stove, and that's when I came in to jump, jumped right behind him and tried to knock him down...." During the altercation, the robber knocked the cash register off a counter. It came open. The robber got money from it and ran out the back door of the store. Louis described the robber as a "[b]lack guy, dark clothes, base ball [sic] cap and something over his face."

Cape Girardeau Police Officer Rodney Wayne Barker received a radio call reporting an armed robbery in progress at the Pizza Hut. He responded to the call, arriving at the Pizza Hut in "[p]robably a minute or less." He reported what he saw:

I saw two white males that appeared to be Pizza Hut employees lying on the floor. There was change from the cash register strewn out all over the floor, and then I saw another male subject appear in a doorway, but I could only see like his shoulder and his arm.

Officer Barker called for backup. When he returned his attention to the building, he heard a noise and saw a black male wearing a dark blue shirt and pants run from the building. Officer Barker chased the man west across the parking lot. He explained, "Then he jumped a wall on the west side of the parking lot and started running up the hill in a southwesterly direction towards the Southeast Missouri Hospital parking lot." Officer Barker continued the chase. The man disappeared over the top of a hill. When Officer Barker reached the top of the hill, he could not see him. Another officer reported he had spotted an individual running west on Lacey Street. The other officer then reported he no longer had the subject in sight.

What Officer Barker characterized as "a suspicious vehicle" was found parked in a parking lot behind the Southeast College of Nursing. The driver's door to the vehicle was ajar. Keys were in the ignition. What appeared to be a change of clothing was on the back seat area of the car. A pair of tennis shoes was on the front floorboard. The engine was warm. The vehicle was impounded and towed to the police department where it was examined. A Missouri driver's license issued to defendant was found in the glove compartment.

At approximately 3:20 a.m., defendant came to the police department and reported his car had been stolen from the parking lot of Southeast College of Nursing; that he parked it there about 11:00 p.m. and found it missing at 2:30 a.m. Defendant was permitted to leave the police station following his report.

After reviewing additional evidence, police officers left the station to go to defendant's residence in an attempt to arrest him. Officer Barker testified:

Well, prior to getting to that location, I saw him walking on the street near Morgan Oak and Pacific. I stopped. He walked up to me and I told him to place his hands on the hood of my vehicle and he did that. He said, "What's wrong, what's wrong?" And I said, "You are under arrest for robbery," and at that point he jerked away from me and started backing away, and I told him to stop, he was under arrest, and then he just turned around and ran, and again we were in a foot pursuit.

Officer Barker was unable to apprehend defendant. Later that morning, about 4:45 a.m., officers were watching defendant's home when defendant came from the residence. He ran. The officers were unable to catch him.

On August 23, 1999, Police Officer John Brown received a call from a person who stated she was defendant's sister. She discussed the possibility of defendant coming to the police station. About two hours later, defendant came to the station.

Defendant asserts four points on appeal. This opinion first addresses Point II. Point II contends the trial court erred in denying defendant's motion to sever the two counts of robbery in the first degree; that those counts were improperly joined; that the two alleged offenses "were not part of the same transaction, a common scheme or plan, or sufficiently of the same of [sic] similar character." Defendant argues the alleged offenses were such that "the jury was likely to consider the evidence of each robbery against [defendant] in considering whether he was involved in the other"; that defendant wished to testify in one of the cases but not the other.

Prior to trial defendant filed a written motion to sever the offenses charged as Count I and Count II alleging that joinder of the offenses for trial would result in substantial prejudice to defendant. The motion was denied. The counts were tried together.

Rule 23.05 provides that the State may charge, in the same indictment or information, all offenses "of the same or similar character." We review the trial court's refusal to sever offenses in two steps. State v. Davis, 860 S.W.2d 369, 372 (Mo.App. E.D.1993). First, we determine, based on the State's evidence only, whether the offenses were properly joined as a matter of law. Id.; State v. Morrow, 968 S.W.2d 100, 109 (Mo.banc 1998). If not, then prejudice is presumed and we must reverse and order new separate trials of the offenses. Morrow, 968 S.W.2d at 109. If joinder was proper, however, then we consider whether the trial court abused its discretion in refusing to sever. Davis, 860 S.W.2d at 372. [Footnote omitted.]

State v. Dizer, 119 S.W.3d 156, 160-61 (Mo.App.2003). Dizer further explains:

Liberal joinder is favored to achieve judicial economy. [Davis, supra.] Joinder is proper if the manner in which the crimes were committed is so similar that it is likely the same person committed all charged offenses. Id. Similar tactics are sufficient to constitute acts "of the same or similar character," but identical tactics are not required. State v. Tobias, 873 S.W.2d 650, 653 (Mo.App. E.D.1994). Rather, joinder is permissible if the tactics "resemble or correspond in nature." State v. Vinson, 834 S.W.2d 824, 827 (Mo.App. E.D.1992)....

Id. at 161. "Comparable tactics, which resemble or correspond in nature, are sufficient to establish that offenses are of the same or similar character; the tactics need not be identical." State v. Hemme, 969 S.W.2d 865, 869 (Mo.App.1998), citing State v. Howton, 890 S.W.2d 740, 744 (Mo.App.1995).

Both counts in the information charged robbery in the first degree. The offenses were committed within three days of one another at Cape Girardeau. Both were committed against store employees. The robber in both cases displayed a gun and ordered the people present in each store to get down on the floor. At least one witness at each robbery believed the gun the robber displayed was a fake gun. The robber at each scene wore a mask over his face. The robber fled each robbery scene on foot. The tactics employed in the course of each robbery were sufficiently comparable for the offenses to be characterized as being of the same or similar...