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06/21/83 STATE MISSOURI v. ROGER DALE MILLER

June 21, 1983

STATE OF MISSOURI, RESPONDENT,
v.
ROGER DALE MILLER, APPELLANT.



From the Circuit Court of St. Louis County; Criminal Appeal; Judge Milton Saitz.

Motion for Rehearing Overruled, Transfer Denied August 29, 1983. Application Denied October 18, 1983.

Before Crandall, P.j., Reinhard, Crist, JJ.

The opinion of the court was delivered by: Reinhard

Defendant appeals after his conviction by a jury of armed criminal action, § 571.015, RSMo. 1978. The court found defendant to be a persistent offender and sentenced him to 20 years imprisonment.

In his sole point on appeal, defendant asserts error in the state's verdict-directing instruction. We affirm.

The state produced strong evidence that on May 23, 1981, defendant and William Dalton entered the Hecht Pharmacy near closing time. Herman Hecht, the owner, and Rita Richards, a cashier, were the only people in the pharmacy. Dalton stayed at the front near the door, and defendant approached Mr. Hecht at the pharmacy counter in the back of the store. The defendant drew a pistol, pointed it at Mr. Hecht, and demanded the store' narcotics. Mr. Hecht handed defendant a cardboard box containing narcotics and, at that moment, an alarm went off. Defendant ran to the front of the store and out the door, and Dalton followed.

Defendant and Dalton ran by Mr. Richards who was outside the store waiting for his wife to finish work. Another witness who was driving by the store also saw the two men. Two police officers cruising the area heard the alarm and drove to the back of the pharmacy where they saw two men running. The officers got out of their car and pursued the men on foot. The officer who caught defendant testified that he found a gun on the ground next to the spot where he caught defendant. The officer who caught Dalton testified he also found a gun on the ground near where he caught Dalton and that Dalton had a cardboard box containing narcotics.

The defendant took the stand and testified that he went into the pharmacy with Dalton, unaware that Dalton intended to rob the store. He stated that he stayed near the front door and ran out of the store when he heard the alarm. He testified he did not participate in the robbery.

Defendant was charged with robbery second degree and armed criminal action. The state submitted only the armed criminal action count to the jury in the following verdict directing instruction:

If you find and believe from the evidence beyond a reasonable doubt:

First, that on May 23, 1981, William Dalton with the aid of Roger Miller committed the offense of robbery in the second degree of Herman Hecht at the Hecht Pharmacy, in that Roger Miller with the aid of William Dalton stole narcotics drugs in the possession of Herman Hecht and in doing so threatened the immediate use of physical force against Herman Hecht for the purpose of forcing Herman Hecht to deliver up the property and

Second, that the defendant either before or during the commission of the offense of robbery second with the purpose of promoting its commission, aided such other person in planning and committing that offense, and

Third, that the defendant or such other person committed the offense submitted to you in the foregoing paragraphs by, with or through the use, ...


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