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10/05/93 STATE MISSOURI v. MICA RUSH

October 5, 1993

STATE OF MISSOURI, RESPONDENT/RESPONDENT,
v.
MICA RUSH, DEFENDANT/APPELLANT.



Appeal from the Circuit Court of the City of St. Louis. Hon. Charles D. Kitchin.

James R. Reinhard, Judge, Crandall, Jr., P.j., and Crist, J., concur.

The opinion of the court was delivered by: Reinhard

Defendant appeals his conviction by a jury for property damage in the second degree, § 569.120, RSMo 1986, and two counts of violation of an order of protection, § 455.085, RSMo Supp. 1992. *fn1 The trial court sentenced him as a persistent and Class X offender to six months' imprisonment on the property damage conviction, and one year's imprisonment for each of the violation of order of protection counts. These sentences are to run consecutively, for a total sentence of two and one-half years. We affirm.

The evidence reveals that on October 31, 1991, defendant and victim had been married for five years. Victim had a full order of protection effective against defendant. On the morning of October 31, 1991, victim telephoned her apartment on Kingsbury from work. Defendant answered the phone and, during the course of the phone conversation, defendant threatened victim. Defendant did not have victim's permission to be in the apartment. Victim telephoned the police and then left work to go to her apartment on Kingsbury.

When she arrived, defendant and two police officers were at the apartment. Victim found her floor-model television and microwave near the front door. Some of victim's clothes were piled in the living room. A suitcase containing defendant's clothes was in the lobby of the apartment. Victim had not left those items in those locations.

Victim then left her apartment and drove her Ford Granada to her parents' home in order to borrow her father's pickup truck. She left the Granada at her parents' home and returned to her apartment, accompanied by her mother.

Officer Daryle Noble met victim and her mother at the Wellston loop and followed them to victim's apartment. Officer Noble was in uniform and in a marked police car. Victim showed Officer Noble the order of protection. Defendant was no longer in the apartment when the trio arrived. Victim and her mother loaded the floor-model television, a nineteen-inch television, and the microwave into the back of the pickup truck. While moving these items, the women observed defendant drive by in victim's Granada. Victim pointed this out to Officer Noble, who also saw defendant driving the car. Victim and her mother left with the loaded pickup. Officer Noble followed in his police car. While victim was stopped at a traffic light, defendant crashed the Granada into the side of the pickup and then jumped out of the car, brandishing a tire iron. Defendant climbed into the bed of the pickup and smashed the nineteen-inch television with the tire iron. Officer Noble arrested defendant.

Defendant's first point on appeal alleges the trial court erred in denying defendant's motion to strike Venireperson Mary Nagl for cause. Defendant maintains Ms. Nagl should have been struck for cause due to her response that she would require defense counsel to put on evidence, when the burden of proof lies with the prosecution.

The following exchange occurred during voir dire:

[Defense Counsel]: Is there anybody who's going to require me to prove 's innocence; if so, please raise your hand? I take it everyone understands that it is upon [the prosecutor] to prove beyond a reasonable doubt that Mr. Rush is guilty and that the defense, that me as the defense lawyer, are not required to prove anything or for that matter to put on any evidence. Ms. Nagl.

VENIREPERSON NAGL: No.

[Defense Counsel]: Ma'am, are you going to require me to put on any evidence in this case to return a verdict?

: Your Honor, I again have to object based on they are not instructed as to what the law is on that matter.

THE COURT: Why don't you add if the Court's instructions don't require that.

[Defense Counsel]: Ms. Nagl, the Court will instruct you that the defense is not required to put on any evidence. Would you require me to put on evidence in order to return a verdict in this case? Do you understand what I'm asking? If you don't, let me know and I'll --

VENIREPERSON NAGL: You mean like if the other lawyer, he has to prove -- I kind of, you know -- ask me again maybe, you know.

[Defense Counsel]: Okay. The State's brought these charges here and they must prove them beyond a reasonable doubt. The Court will instruct you that the defense is not required to put on any evidence. He brought the charges as the prosecutor, it's all up to him to bring in the witnesses and to prove the case beyond a reasonable doubt. My question is really are you going to require me to put on evidence?

VENIREPERSON NAGL: Yeah.

[Defense Counsel]: Thank you, ma'am. Anybody else feel the same way as Ms. Nagl; if so, please raise your hand?

: Your Honor, may we approach the bench please?

(Counsel approached the bench and the following proceedings were had outside the ...


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