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State v. McElroy

Court of Appeals of Missouri, Western District, Second Division

May 30, 2017

STATE OF MISSOURI, Respondent,
v.
JEROME A. MCELROY, Appellant.

         Appeal from the Circuit Court of Jackson County, Missouri The Honorable David Michael Byrn, Judge

          Before Thomas H. Newton, P.J., James Edward Welsh, and Karen King Mitchell, JJ.

          OPINION

          James Edward Welsh, Judge.

         Jerome McElroy appeals the trial court's judgment, following a jury trial, convicting him of first-degree robbery (§ 569.020, RSMo[1]) and armed criminal action (§ 571.015). We affirm.

         Background

         The evidence at McElroy's trial[2] showed that two men entered a Little Caesar's pizza restaurant on May 24, 2014, while manager April Bell was counting the money in a cash register. Bell saw that one of the men was carrying a gun, so she quickly closed the register. Bell testified that she could see both men's faces. She stated that the gunman, whom she later identified as McElroy, had "a little bit" of facial hair, and she particularly noticed "his eyes and his size."

         Bell told the jury that McElroy jumped over the counter, put a gun to the back of her head, and told her to open the register. Bell complied. McElroy then pulled her to the other register, demanded the money from it, and threatened to shove the gun into her head harder unless she gave him the money immediately. After Bell opened the second register, McElroy ordered her to open the safe. She told him that it was on a time lock and she could not open it. McElroy jumped back over the counter, and the two men ran out the door. Bell called the police.

         Detective Anthony Castelletto reviewed the store's surveillance video.[3] He saw that the robbers were not wearing gloves and had touched certain areas that an ordinary customer would not touch. Castelletto asked a crime scene technician to dust those areas for fingerprints. Four of the recovered prints were matched to McElroy: one was lifted from the counter between the cash registers; the other three were taken from the glass on the upper portion of a door.

         The next day, police arrested Charles Harris, who was riding in the passenger seat of a vehicle that matched the description of one used in the robbery. The police received information from Harris about a suspect who went by "JJ." Officer Johnathon Dawdy searched social media accounts and found a Facebook page for someone named "JJ da guy." He compared a picture of McElroy to pictures on the Facebook page and confirmed that McElroy was "JJ da guy." The photos on the Facebook page showed a tattoo that said "RIP Kevin" and covered nearly the entire top of McElroy's right hand. Dawdy testified that he had seen the same tattoo on one of the robbers in the Little Caesar's surveillance video. Detective Castelletto also concluded that the same tattoo was depicted in both the video and the Facebook photos.

         Upon arresting McElroy, Officer Dawdy could see that he was the same person identified on Facebook as "JJ da guy." Dawdy also noticed that McElroy had the same tattoo on his right hand that he had seen on the Facebook page and on the surveillance video.

         April Bell identified both Harris and McElroy from photo line-ups. She identified McElroy as the gunman, and she stated at trial that she was absolutely sure of her identification. Bell also made an in-court identification of McElroy. She told the jury that there was no doubt in her mind that he was the man who held a gun to her head.

         McElroy did not present any evidence. During closing argument, defense counsel reminded the jurors of McElroy's "very large ornate and dark tattoo on his right hand" that they had seen in one of the Facebook photos. She urged the jury to ask to see everything that had been admitted into evidence (which the jury did), and she proposed that the video and the stills from it would not show a tattoo on the gunman's hand. Counsel also asserted that, if Bell's identification of McElroy was wrong, then the State did not have any evidence.

         The jury found McElroy guilty of first-degree robbery and armed criminal action. The court sentenced him to concurrent prison ...


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