Court of Appeals of Missouri, Eastern District, Fourth Division
Appeal from the Circuit Court of the City of St. Louis. Honorable Joan L. Moriarty, Judge.
For appellant: Amanda P. Faerber, Assistant Public Defender, St. Louis, MO.
For respondent: Andrew C. Hooper, Assistant Attorney General, Jefferson City, MO.
Patricia L. Cohen, P.J., Roy L. Richter, J., and Robert M. Clayton III, J., concurring.
Patricia L. Cohen, Presiding Judge
Marcus Steed (Defendant) appeals the judgment of conviction entered after a jury found him guilty of unlawful possession of a firearm and unlawful use of a weapon. Defendant claims the trial court erred in denying: (1) his request for a mistrial when the trial court instructed the jury to continue deliberations; and (2) his motion for judgment of acquittal because the State produced insufficient evidence to support his conviction. We affirm.
Factual and Procedural Background
Viewed in the light most favorable to the verdict, the evidence at trial revealed the following: On May 29, 2012, Defendant and another man were walking along a sidewalk, when Officer Barone, who was on patrol with Officers Jenkins and Henry, recognized Defendant from a previous arrest and asked to speak to him. While Officer Barone spoke to Defendant, Officer Henry conducted a computer inquiry and learned that Defendant had active warrants. Officer Barone handcuffed Defendant, informed him he was under arrest, and performed a pat-down search incident to arrest. In his search, Officer Barone discovered a loaded, nine-millimeter semiautomatic pistol in Defendant's waistband beneath his untucked shirt.
The State charged Defendant with unlawful possession of a firearm and unlawful use of a weapon. The trial court held a jury trial in December 2013. At trial, the State called to testify Officer Katherine Castillo, a firearms examiner, and Officers Jenkins and Barone. Officer Jenkins stated that he observed Officer Barone remove from Defendant's waistband " a rusted, brown semiautomatic handgun." Officer Jenkins identified the gun in court (" State's Exhibit 1" ) and again described it as " rusty, brown." Officer Barone also identified the gun. On cross-examination, he affirmed that, in the police report, he wrote that the gun had a " nickel finish," but agreed with defense counsel that the gun, in fact, had a " blue finish." On redirect examination, Officer Barone described the gun as " rusty brown." Officer Castillo, the firearms examiner who examined the gun seized from Defendant, testified that the gun had a " blue-steel finish" and appeared " slightly" rusted.
The parties stipulated to Defendant's prior felony convictions, and Defendant rested at the close of the State's case without presenting evidence. Defense counsel moved for a judgment of acquittal at the close of the State's evidence and at the close of all evidence, and the trial court denied the motions.
The jury retired to begin deliberations at 4:40 p.m. At 5:50 p.m., the jury sent the trial court the following inquiry: " We cannot come up with a decision today. Is it possible to come back tomorrow to deliberate tomorrow?" After consulting the ...