Court of Appeals of Missouri, Western District, First Division
APPEAL FROM THE CIRCUIT COURT OF CALLAWAY COUNTY, MISSOURI The Honorable Kevin M.J. Crane, Judge
Before Joseph M. Ellis, Presiding Judge, Karen King Mitchell, Judge and Anthony Rex Gabbert, Judge
JOSEPH M. ELLIS, JUDGE
Gary Coleman appeals from his conviction of one count of second degree robbery, § 569.030. For the following reasons, we vacate Appellant's conviction for robbery in the second degree; enter a conviction for the lesser offense of stealing, § 570.030; and remand the cause to the trial court for re-sentencing consistent with our opinion.
At 9:18 a.m. on October 6, 2012, Appellant walked into a branch office of Bank Star One in New Bloomfield, Missouri wearing sunglasses. He walked straight up to teller Marla Rothove, rested his forearm on the counter, leaned slightly forward, handed Rothove a plastic grocery sack, and said, "I need you to do me a favor. Put the money in this bag." He spoke in a low, serious tone. Rothove took the bag, opened her drawer, and put $1, 472.00 in the bag. While this was going on, the assistant branch manager, Sharon Holland, approached. When she was a few feet from Rothove, Appellant told her, "Ma'am, stop where you are and don't move any farther." Holland complied with those instructions. Rothove handed Appellant the bag of money, and he ran out of the bank. The entire encounter lasted approximately forty-five seconds.
Appellant was eventually arrested in Texas and extradited to Missouri. When interviewed by the police and shown the surveillance photos of the encounter, Appellant admitted that he was the man in the pictures and that he had taken the money from the bank.
Appellant was subsequently charged as a persistent offender with one count of second-degree robbery, § 569.030.1. After waiving his right to jury trial, Appellant was tried by the court and found guilty as charged. The court sentenced Appellant as a persistent offender to a term of ten years imprisonment.
In his sole point on appeal, Appellant challenges the sufficiency of the evidence to support his conviction for second-degree robbery. "In reviewing the sufficiency of the evidence in a court-tried criminal case, the same standard of review is applied as in a jury tried case." State v. Beam, 334 S.W.3d 699, 707 (Mo. App. E.D. 2011). "When a criminal defendant challenges the sufficiency of the evidence to support his conviction, our review is limited to determining whether sufficient evidence was admitted at trial from which a reasonable trier of fact could have found each element of the offense to have been established beyond a reasonable doubt." State v. Whites, 402 S.W.3d 140, 142 (Mo. App. W.D. 2013) (internal quotation omitted). In making that determination, this Court "accepts as true all of the evidence favorable to the state, including all favorable inferences drawn from the evidence and disregards all evidence and inferences to the contrary." State v. Oliver, 293 S.W.3d 437, 444 (Mo. banc 2009) (internal quotation omitted). However, "[t]he Court may not supply missing evidence, or give the State the benefit of unreasonable, speculative, or forced inferences." State v. Buford, 309 S.W.3d 350, 354 (Mo. App. S.D. 2010) (internal quotation omitted).
"A person commits the crime of stealing if he or she appropriates property or services of another with the purpose to deprive him or her thereof, either without his or her consent or by means of deceit or coercion." § 570.030.1. "Under Missouri law, the offense of stealing is transformed into the greater offense of second degree robbery when the stealing is accomplished 'forcibly.'" Patterson v. State, 110 S.W.3d 896, 904 (Mo. App. W.D. 2003); see also § 569.030.1 ("A person commits the crime of robbery in the second degree when he forcibly steals property."). "A person 'forcibly steals, ' thereby committing second degree robbery, if, 'in the course of stealing [as defined in section 570.030]' the person 'uses or threatens the immediate use of physical force upon another person for the purpose of . . . [p]reventing or overcoming resistance to the taking of the property or . . . compelling the owner of such property or another person to deliver up the property." Patterson, 110 S.W.3d at 904 (quoting § 569.010(1)). Thus, in order to support a second degree robbery conviction, there must be evidence establishing beyond a reasonable doubt that the defendant used physical force or threatened someone with the immediate use of physical force in order to accomplish the theft.
On appeal, Appellant contends that the evidence did not support a finding that he used physical force or threatened anyone in the bank with the immediate use of physical force during the incident and that the evidence, therefore, does not support his conviction for second-degree robbery. The State concedes that Appellant did not actually use any physical force during the incident but maintains that the evidence supports a finding that Appellant threatened Rothove and/or Holland with the immediate use of physical force. Accordingly, the sole question on appeal is whether the evidence was sufficient to establish beyond a reasonable doubt that Appellant threatened the immediate use of physical force against one or both of the two ladies in order to compel Rothove to give him the money in her drawer and/or to prevent resistance to his taking of the money.
To support a conviction for second-degree robbery based upon the threatened use of physical force, there must be evidence of some affirmative conduct on the part of the defendant, beyond the mere act of stealing, which communicates that he will "immediately" employ "physical force" if the victim fails to deliver up the property or otherwise resists his taking of the property. "[T]he threat of physical harm need not be explicit; it can be implied by words, physical behavior or both." Id. (internal quotation omitted).
Appellant made only two statements while in the bank. While handing Rothove a plastic bag, he stated, "I need you to do me a favor. Put the money in this bag." And when Holland approached, he told her, "Ma'am, stop where you are and don't move any farther." Both statements were made in a low, serious tone.
The State argues in conclusive fashion, without further explanation, that the statements made by Appellant are indistinguishable from handing a teller a note saying, "This is a holdup." See State v. Clark, 790 S.W.2d 495, 497 (Mo. App. E.D. 1990); Patterson, 110 S.W.3d at 904 (noting that a threat of physical force may be implied from the use of phrases like, "This is a holdup, " or "This is a stickup."). Contrary to the State's contention, however, these comments are readily distinguishable. "The expression 'holdup, ' in its ordinary significance, means a forcible detention of the person held with the intent to commit robbery and implies the necessary force to carry out that purpose." Clark, 790 S.W.2d at 497 (internal quotation omitted). Thus, the use of the term itself implies possession of a weapon and the willingness to use force. The ordinary meaning of the terms and phrases used by Appellant do not convey a similar message.
The State also attempts to argue that the statements made by Appellant, when viewed in the context of the situation and considering his demeanor, are sufficient to support a finding that Appellant intended for Rothove and Holland to feel threatened and to believe that he would use physical force against them if they failed to comply with his demands. In support of that assertion, the State cites United States v. Gilmore, 282 F.3d 398, 402 (6th Cir. 2002), wherein the 6th Circuit stated that "[d]emands for money [from a bank employee] amount to intimidation because they carry with them an implicit threat: if the money is not produced, harm to the teller or other bank employee may result." Id. Gilmore, however, involved the application of a federal bank robbery statute, 18 U.S.C. § 2113(a), which criminalizes the taking of money or property from a federally insured financial institution "by force and violence, or by intimidation." (emphasis added) "Whether intimidation under 18 U.S.C. ...