Court of Appeals of Missouri, Western District, Special Division
from the Circuit Court of Jackson County, Missouri The
Honorable Kevin D. Harrell, Judge
Before: Cynthia L. Martin, Presiding Judge, Lisa White
Hardwick, Judge and Karen King Mitchell, Judge
Cynthia L. Martin, Judge
Carter ("Carter") appeals from the trial
court's entry of judgment convicting him of four counts
of first-degree robbery and four counts of armed criminal
action. Carter argues that the trial court erred in failing
to sever his charged offenses and declare a mistrial
following the State's closing argument because the trial
court had a continuing duty to prevent prejudice after
denying his motion to sever offenses. The State argues that
Carter's appeal should be dismissed based on application
of the escape rule. We affirm the trial court's judgment.
and Procedural Background
State charged Carter with four counts of first-degree robbery
and four counts of armed criminal action. The State charged
two counts of first-degree robbery and two counts of armed
criminal action (Counts I-IV) based on an alleged armed
robbery on April 21, 2014. The State levied the same
charges--two counts of first-degree robbery and two counts of
armed criminal action (Counts V-VIII)--based on a similar
armed robbery on April 25, 2014.
to trial, Carter moved to sever Counts I-IV from Counts
V-VIII. Carter argued that severance was required because he
was identified in the robbery surrounding Counts I-IV, but
not in the robbery in counts V-VIII, permitting the jury to
wrongfully infer that Carter was involved in both robberies.
Carter also argued for severance because he would likely
raise an alibi defense against Counts I-IV but exercise his
right against self-incrimination on Counts V-VIII, and
because joinder of all counts could confuse the jury. The
trial court denied Carter's motion. Carter renewed his
motion to sever before the start of trial, and asked that the
"request to sever the cases be continuing throughout the
entire trial, because [the trial court] theoretically [has]
discretion down the road . . . to sever." The trial
court denied Carter's renewed motion.
jury convicted Carter on all eight counts. Carter does not
challenge the sufficiency of the evidence to support the
convictions. Viewed in a light most favorable to the
jury's verdict,  the evidence at trial established the
to April 2014, Andrew Njogu ("Andrew") had known
Carter for at least one year, but only knew him as
"J." Andrew met Carter through Craigslist,
where Andrew sought to purchase phones to send to relatives
in Kenya. Andrew met with Carter approximately ten times
through the year preceding April 2014 in order to purchase
tried to buy phones from Carter over the weekend prior to
April 21, 2014, but learned upon meeting Carter that someone
else had the phones. Eventually, Andrew left because the
person with the phones never showed up. On that day, Carter
drove a maroon, reddish car.
April 21, 2014, Carter told Andrew that he had phones to
sell. They agreed to meet in a large parking area near a gas
station and shopping center. Andrew went to meet Carter along
with his brother, Charles Njogu ("Charles"), and
Charles's two-year old daughter. Charles drove
Andrew's car, and Andrew rode in the passenger seat.
way, Andrew told Charles to look for a red car. Upon arriving
at the designated meeting spot, Andrew saw a red Kia and told
Charles "that's them." Andrew and Charles saw
two African-American males in the red car. Andrew recognized
Carter in the driver's seat. Carter's passenger was
eventually identified as Ricky Bowman ("Bowman").
Andrew and Charles both noticed that Carter was leaning back
in his seat.
exited the red car and approached Andrew's car, carrying
a bag. Andrew exited his car, but Bowman directed him back
into the car. Bowman got into Andrew's car and asked if
they were there for the cell phones. Then, Bowman pulled a
gun from his bag,  and pointed it at Andrew and Charles.
Bowman told the brothers to put everything they had in the
bag. Each brother put his cell phone in the bag. Andrew had
$1, 000 in cash that he also put into the bag. Andrew had an
additional cell phone that he tried to put in the bag, but he
dropped it. Andrew stepped out of the car so that he could
retrieve the dropped phone. Bowman stepped out of the car,
too, and told Andrew not to try anything. Bowman walked back
to the red car, and it drove away.
and Charles tried to follow the car to record the license
plate number, but could not keep up. Andrew and Charles went
to a nearby fire station to report the robbery. The police
arrived and took statements from both Andrew and Charles.
later provided the police with a phone number for Carter.
Andrew also identified Carter and Bowman in a photo lineup a
few days after the robbery. Charles could not identify either
Carter or Bowman in a photo lineup, but did identify Carter
victims of the second robbery were Zebulan Hall
("Hall") and his wife's cousin, Soupaphone
Apsayarath ("Apsayarath"). Apsayarath was going to
visit family in Laos, and he wanted to bring them cell phones
April 25, 2014, four days after the robbery of Andrew and
Charles, Hall found an advertisement on Craigslist offering
five cell phones for $1, 500. Hall contacted the seller via
text messages with the phone number posted on the
advertisement. Hall and the seller arranged to meet at a
Wal-Mart parking lot, a location picked by the seller. The
seller told Hall that he would be in a red Kia.
and Hall's wife, Vongdavanh Keovicheth
("Keovicheth"), went with Hall to meet the seller.
They also brought a dog. When they arrived at the Walmart,
they saw a red Kia parked away from the building. They parked
a couple spaces away from the Kia. Keovicheth saw that the
driver of the red car was leaned back in his seat. Two
African-American males occupied the red Kia.
got out of the car and took the dog on a walk. At the same
time, the passenger of the red Kia exited that car, carrying
a bag. Hall exited his car, but the passenger said he wanted
to show him the phones in the car. Hall sat in the
driver's seat of his car, and the passenger from the red
Kia got into the back seat next to Apsayarath.
passenger then pulled a gun from his bag and pointed it at
Hall and Apsayarath. The passenger told Hall and Apsayarath
to put their phones and keys in the bag. Hall argued with the
passenger about what he was doing, but eventually relented
after the passenger pointed the gun back and forth between
Hall and Apsayarath. Hall put Keovicheth's phone in the
bag. Apsayarath put his phone in the bag, too.
passenger began demanding money from Hall. Hall did not have
any money on him. Hall and the passenger started arguing.
Hall jumped out of the car to show the passenger that he did
not have any money on him. The passenger exited the car, too,
and told Hall not to do anything stupid. Apsayarath took this
opportunity to escape the car, and ran toward the Walmart
while shouting that a robbery was occurring. The passenger
fled to the red Kia, which drove off.
got back into his car and followed the red Kia. Eventually,
Hall caught up to the Kia well enough to read the license
plate number. Hall returned to the Walmart, where the police
had arrived. Hall reported the license plate number and said
that it was a Missouri plate. Apparently, the plate number
provided was inaccurate. However, subsequent police
investigation revealed that a similar plate number was
registered to a red Kia owned by a rental car company. The
red Kia had been rented to Carter in March 2014. Carter's
rental application listed the same phone number that Andrew
had provided the police after the first robbery.
speaking with the police, Hall acquired a temporary phone.
Hall rechecked Craigslist and found that the same offer for
cell phones was still posted. Hall contacted the seller from
his temporary phone. Hall pretended to be an interested
buyer, and set up a meeting with the seller. The seller chose
the same Walmart as a meeting place. Hall contacted the
police to advise of the scheduled meeting, but was informed
that the police did not have the resources to safely
apprehend the suspects on such short notice. Undeterred, Hall
and Keovicheth went to meet with the seller again, but parked
in a different parking lot so they ...