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State v. Lewis

Court of Appeals of Missouri, Eastern District, First Division

April 28, 2015

STATE OF MISSOURI, Respondent,
v.
JAMES W. LEWIS, Appellant

Page 630

Appeal from the Circuit Court of Warren County. Honorable Wesley Dalton.

Casey Allen Taylor, Columbia, MO, for appellant.

Evan Joseph Buchheim, Jefferson City, MO, for respondent.

CLIFFORD H. AHRENS, Judge. Lawrence E. Mooney, P.J., concurs. Lisa Van Amburg, J., dissents in separate opinion.

OPINION

Page 631

CLIFFORD H. AHRENS, JUDGE.

James Lewis appeals the trial court's judgment after a jury convicted him of second-degree robbery and resisting arrest. We affirm the judgment of Lewis's convictions and sentences and remand the case with instructions to the trial court to correct nunc pro tunc a clerical error in the written judgment.

Background

At 10:30 p.m. on April 6, 2014, Lee Ann Wise was standing at her car in a grocery store parking lot when Lewis approached her from behind, stole her purse, and ran away. Police Officer Houston heard the dispatch and was in the area. He soon spotted Lewis and attempted to stop him. Lewis fled and was apprehended by a cyclist until Houston caught up. Lewis continued to resist arrest as Houston attempted to secure him in handcuffs. Wise's purse was later recovered nearby.

The State charged Lewis with second-degree robbery and resisting arrest. At trial, Wise testified that Lewis " bumped" her shoulder and " yanked" her purse away from her. Another witness testified that he " nudged" her. A third witness testified that there was a " slight" struggle. Houston testified that Lewis had outstanding warrants. During closing arguments, defense counsel suggested that Lewis might have fled from Houston due to those warrants and not the robbery. In rebuttal argument, the State disclosed that the warrants were traffic-related, though that fact wasn't in evidence.

The jury found Lewis guilty of both counts. The trial court sentenced him as a prior and persistent offender to consecutive prison terms of 30 years for robbery and 7 years for resisting arrest. On appeal, Lewis asserts that the trial court erred by: (1) denying his motion for acquittal, because the evidence was insufficient to establish that he used physical force, an element of robbery, and (2) failing to declare a mistrial or give a curative instruction after the State's disclosure about Lewis's warrants.

As a clerical matter, the trial court's written judgment omitted its factual finding, supported by the record, that Lewis was not only a prior offender but also a persistent offender. The State requests correction of the written judgment nunc pro tunc to accurately reflect Lewis's status as a prior and persistent offender.

Analysis

Physical Force

First, Lewis contends that the evidence was insufficient to prove that he used physical force. Our review is limited to " whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Bateman,318 S.W.3d 681, 687 (Mo. 2010). The Court does not act as a super juror with veto powers but gives great deference to the trier of fact, ...


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