Court of Appeals of Missouri, Eastern District, First Division
from the Circuit Court of the City of St. Louis Hon. Mark H.
G. DOWD, JR., PRESIDING JUDGE.
Bateman ("Appellant") appeals from the judgment
entered after a jury trial on his conviction for unlawfully
using a weapon by carrying a concealed firearm. He contests only the sufficiency of the
evidence to prove that the firearm was concealed. We affirm.
considering the sufficiency of the evidence on appeal, we
must determine whether sufficient evidence permits a
reasonable juror to find guilt beyond a reasonable doubt.
State v. Wright, 382 S.W.3d 902, 903 (Mo. banc
2012). We view the evidence and all reasonable inferences
therefrom in the light most favorable to the verdict and
disregard any evidence and inferences contrary thereto.
Id. "This is not an assessment of whether the
Court believes that the evidence at trial established guilt
beyond a reasonable doubt but rather a question of whether,
in light of the evidence most favorable to the State, any
rational fact-finder could have found the essential elements
of the crime beyond a reasonable doubt." Id. We
do not act as a super juror with veto powers, but give great
deference to the trier of fact. Id.
person commits the offense of unlawful use of a weapon if he
knowingly "carries concealed upon or about" his
person a firearm readily capable of lethal use. Section
571.030.1(1). The test of concealment is "whether the
weapon is so carried as not to be discernible by ordinary
observation." State v. Bordeaux, 337 S.W.2d 47,
49 (Mo. 1960); see also State v. Dunn, 857 S.W.2d
359, 361-62 (Mo. App. E.D. 1993). "A weapon is not
concealed merely because it is not discernible from a
particular single vantage point if it is clearly discernible
from other positions; but it may be concealed if it is
discernible only from a single particular vantage
point." State v. Raff-Covington, 410 S.W.3d
268, 271 (Mo. App. E.D. 2013). Portions of the
defendant's body can be considered when determining
whether a weapon is concealed. Id. "A police
officer's testimony that he did not see a pistol despite
the opportunity to view the accused under conditions likely
to cause a police officer to be particularly observant for
weapons is entitled to some consideration both at the trial
and appellate levels." Id.
evidence at trial established that while investigating
another situation at 1:00 a.m. in a neighborhood with a high
rate of homicides, gun violence and drug activity, police
officers saw an SUV speed by and crash into a parked car.
Concerned that the driver had been injured, the officers
approached the vehicle to help. As they approached, the
driver- later identified as Appellant-staggered out of the
vehicle and looked disoriented. The first officer who
testified said that Appellant was "hunched over kind of
with his left shoulder blading forward, and he was clutching
. . .either his upper thigh or his waistband" on the
right side. The officer said Appellant "looked like he
was attempting to conceal something" with the position
of his body. Because he always anticipates someone has a
firearm, the officer asked Appellant to put his hands up. The
officer testified that Appellant complied and, at that point,
he could "see, like a large outline of a firearm"
on the right side of Appellant's waistband. It was
"completely below" Appellant's waistline and
"fully concealed" in his pants. When asked how the
officer knew that the bulge he saw under Appellant's
clothing was a firearm, the officer said "it was very
distinct" and "had an extended magazine on
it." The officer testified that there are not too many
other things that someone will put in their waistband. He
testified it was a "very noticeable" and "very
second officer who testified said that when he approached the
car, Appellant was facing the vehicle and the officer thought
he may have been trying to get back in the SUV. The officer
saw "something" poking the back of Appellant's
shirt out on his lower right side, at his waist. The officer
said he could not really tell what it was, he just knew that
he did not want Appellant to touch it since it was possibly a
firearm, so he told Appellant to put up his hands. The
officer did a pat-down search of Appellant and immediately
found and removed a large firearm with an extended magazine
from the right side of Appellant's waistband. He
testified that prior to removing it, the gun was "fully
concealed" and he could not see it at all.
appeal, Appellant asserts that it was "always
apparent" to these officers that he had a gun from the
beginning of their encounter with him because one officer saw
the outline of the firearm and the other saw the firearm
poking Appellant's shirt out. Thus, he claims, the
evidence was not sufficient to show concealment and, in fact,
proved the weapon was not concealed. We disagree.
the second officer did not testify that he saw a
"firearm" poking out the back of Appellant's
shirt, only that he saw "something" he thought was
"possibly" a firearm was making Appellant's
shirt stick out. When the officer sees something but does not
recognize it as a weapon, the weapon can still be considered
"concealed." See, e.g, State v.
Rowe, 67 S.W.3d 649, 659 (Mo. App. W.D. 2002) (evidence
was sufficient to show knife was concealed even though handle
was visible because officer did not readily recognize it as
part of a weapon). Appellant's firearm was at all times
wholly covered with clothing, and from this officer's
vantage point, the firearm was not discernable by ordinary
observation until the officer removed it during the pat-down
search. Even if the weapon could be seen from the other
officer's viewpoint, the jury could still reach a
conclusion that it was concealed. See, e.g., State v.
Howard, 973 S.W.2d 902, 907 (Mo. App. S.D. 1998)
(evidence that weapon stashed under seat of a car was not
visible except by looking down into crack between seats was
sufficient evidence of concealment); State v.
Straub, 715 S.W.2d 21, 22 (Mo. App. E.D. 1986) (evidence
that gun not visible until officer got closer was sufficient
evidence of concealment); State v. Murphy, 610
S.W.2d 382, 384 (Mo. App. E.D. 1980) (evidence that officer
did not see weapon, covered partially by jacket pocket and
partially by hand, except for brief moment as defendant
turned was sufficient evidence of concealment).
being able to discern by ordinary observation the
outline of a firearm under clothing is not the
equivalent of seeing the actual firearm itself. Most
importantly for purposes of this crime, the fact that an
officer could tell that the bulge in Appellant's pants
was a firearm does not change the fact that Appellant clearly
intended to carry this weapon in a concealed manner.
Appellant stuffed this large gun deep into the waistband of
his pants and put his shirt over the portion that stuck up
above the waistband so as to completely cover it with his
clothing. Carrying a weapon under clothing is a common way to
keep the weapon concealed and is routinely found sufficient
evidence of concealment for purposes of this crime. See
Dunn, 857 S.W.2d at 360-62 (defendant placed gun in belt
at small of his back and officer did not see it even though
some evidence part of gun was showing); State v.
Dowdy, 724 S.W.2d 250, 252 (Mo. App. W.D. 1986) (knife
carried in pocket and officers did not see it); State v.
Odzark, 532 S.W.2d 45, 49 (Mo. App. 1976) (pistol
carried in front waistband with jacket covering top of pants
and officers did not see it even though jacket was
unbuttoned); State v. Woolbright, 495 S.W.2d 637,
638 (Mo. 1973) (officers saw defendant put gun in waistband
of trousers and conceal it with shirt); State v.
Crone, 399 S.W.2d 19, 20-21 (Mo. 1966) (witness saw
defendant with revolver earlier in day, then saw bulge around
his belt and something sticking under his shirt later same
to conclude that simply because the bulge created under the
clothing looked like a weapon it was "not
concealed" would be to conclude that the weapon was
being carried "openly" and that Appellant intended
for the firearm to be noticeable. This would be an absurd
result. The manner in which Appellant was carrying this
firearm created precisely the danger sought to be avoided by
criminalizing the carrying of concealed weapons. "The
purpose of a concealed weapons statute is to break down the
pernicious and dangerous habit of carrying concealed weapons
to be used if it should become necessary"
Dowdy, 724 S.W.2d at 252. This result would be
especially absurd given that the reason the bulge was so
distinctly the outline of a weapon was because of the large
size of the weapon with an extended magazine capable of even
more harm than a smaller weapon that might not have created
such a distinct bulge. Moreover, it would be an unreasonable
inference to conclude that by stuffing this weapon down his
pants and putting his shirt over it, Appellant intended for
it to be visible and carried openly. His conduct
demonstrating his intent to conceal is sufficient evidence.
See State v. Mattox, 689 S.W.2d 93, 96 (Mo. App.
E.D. 1985) (despite defendant's testimony that gun was
accidentally covered by pile of clothing on seat of car,
other evidence showed he reached for the pile of clothing in
a way indicating he knew there was a gun underneath).
in which our courts have concluded that a weapon was not
concealed involve situations in which the weapon is wholly or
partially exposed and there is no evidence of an intent to
conceal. So, for instance, in State v. Payne, this
Court found insufficient evidence of concealment where the
officers testified that they saw the butt of a gun visibly
protruding from under an armrest of car as soon as they
looked inside the defendant's car. 654 S.W.2d 139, 141
(Mo. App. E.D. 1983). But here, it was reasonable for the
jury to infer from the fact that this large gun was stuffed
in his waistband with the shirt over it that Appellant had
the intent to conceal the weapon even though the officer
could discern the outline of the firearm.
even if this firearm was "not concealed" because
the outline of it could be seen under his clothes, there was
also evidence that Appellant positioned his body in a way
that hid the weapon from ordinary observation. The first
officer who testified said that when Appellant initially
stepped out of the SUV, he was hunched over and using his
shoulder to cover what was in his waistband. It was not until
Appellant raised his hands that this officer observed the
outline of the firearm under Appellant's clothes.
Testimony that the officer did not see a weapon until the
defendant moved his body to reveal it is sufficient evidence
of concealment. For instance, in Raff-Covington,
when he first looked inside the defendant's car for
weapons, the officer did not see any. 410 S.W.3d at 272. But
when the defendant shifted in his seat, the officer saw the
butt of a firearm sticking out underneath the defendant's
leg. Id. Here too, the officer did not see even the
outline of the weapon initially because of the placement of
Appellant's body. The outline of the weapon under his
clothes only became discernable when Appellant raised his
hands. The use of ...