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State v. Carter

Court of Appeals of Missouri, Western District, Special Division

July 11, 2017

JEREMY R. CARTER, Appellant.

         Appeal 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

         Jeremy 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.

         Factual and Procedural Background

         The 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.

         Prior 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.

         The 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, [1] the evidence at trial established the following:

         Prior to April 2014, Andrew Njogu ("Andrew") had known Carter for at least one year, but only knew him as "J."[2] 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 phones.

         Andrew 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.

         On 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.

         On the 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.

         Bowman 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, [3] 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.

         Andrew 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.

         Andrew 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 at trial.

         The 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 as gifts.

         On 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.

         Apsayarath 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.

         Keovicheth 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.

         The 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.

         The 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.

         Hall 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.

         After 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 ...

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