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State v. Stewart

Court of Appeals of Missouri, Eastern District, Second Division

January 9, 2018

STATE OF MISSOURI, Respondent,
v.
ROBERT E. STEWART, Appellant.

         Appeal from the Circuit Court of St. Francois County 15SF-CR01317-01 Honorable Sandra Martinez

          OPINION

          Lisa P. Page, Presiding Judge

         Following a jury trial, Robert E. Stewart was convicted of one count each of unlawful use of a weapon, Section 571.030, [1] first-degree burglary, Section 569.160, armed criminal action, Section 572.015, and third-degree domestic assault, Section 565.074. Stewart was sentenced to 15 years in prison for unlawful use of a weapon, 5 years for first-degree burglary, 3 years for armed criminal action, and one day for third-degree domestic assault, all terms to run concurrently, and with credit for time served as to the one-day sentence.

         Defendant contends that the record at trial did not contain sufficient evidence to sustain the judgment of conviction as to third-degree domestic assault and first-degree burglary. Defendant effectively also seeks the vacation of his conviction of armed criminal action, which as charged and submitted to the jury, must stand or fall based on his conviction of first-degree burglary. We affirm the judgment as to the conviction of third-degree domestic assault but vacate Defendant's conviction of first-degree burglary and consequently his conviction of armed criminal action.[2]

         BACKGROUND

         Defendant and T.S. were married in March 2005 and divorced in January 2014. After divorcing, they attempted to reconcile. Defendant testified they started living together again in November 2014. T.S. testified she and Defendant both contributed money to put $5, 000 down in a rent-to-own arrangement on the residence at issue in this case. She also testified they lived there together until about a week before the January 23, 2015 incident. T.S. stated when Defendant failed to return home one night, she told him "not to come back." T.S. testified that during the interim week, he stayed in a camper they "had . . . at the house."

         On cross-examination, T.S. agreed with defense counsel that Defendant "had all of his stuff in [the] house because he was living there[.]" She confirmed that even after he started sleeping in the camper, "all of his stuff, " including his clothes, toiletries, and other personal items, remained in the residence; that he continued to eat meals and take showers in the residence; and that he was "just sleeping in the trailer"-"[t]he rest of the time he was in the house with [her] and [they] were actually working on [the house]." T.S. also testified she did not seek a protective order prior to the January 23, 2015 incident.

         Defendant testified he and T.S. had a "lease with option to buy" the residence and were living in and working on it while they waited for a contract to be drawn up. He testified that around January 20, 2015, T.S. "caught [him] red-handed" in some way regarding his relationship with another woman and told him to "get out" of the residence. He responded he would stay in the camper but she said he could get the camper off the property, too. He testified the camper was "parked right in the driveway." He stated T.S. left a message on his phone not to come back and that "all [his] stuff would be out in the yard and she'd burn it."

         However, she did not follow through and on January 23, 2015, "everything" remained in the residence. Defendant further stated that during the two days prior to January 23, 2015, he "wasn't even on the property . . . because [he] did not want to argue with [T.S.], " and he would come home late at night when he knew she was in bed and he "didn't have to worry about her coming out there and arguing and fighting."

         On the morning of January 23, 2015, Defendant was in the residence delivering firewood. Both Defendant and T.S. testified he did so at T.S.'s request. But T.S. did not greet Defendant when he arrived-only her grandmother and uncle did. Defendant inquired about T.S., then walked upstairs to knock on her bedroom door. T.S. testified she was awakened by Defendant's knocking. When she exited the bedroom with another man, who was her overnight guest, she spotted Defendant standing by the back door of the house holding a black handgun. T.S. said she immediately told Defendant to get out of the house. In response, Defendant fired the handgun into the ceiling. T.S. testified she was "startled" by the shot. When she more forcefully told Defendant to leave, he threatened to kill both her and her guest, then left the house.

         T.S. testified that when she walked toward the door to close it, she heard another gunshot and the sound of glass breaking. After T.S. shut the door, Defendant started his car and left the property. When her overnight guest called the police, T.S. told him to hang up. Police arrived later that day and found bullet holes and .32-caliber shell casings matching T.S.'s description of the incident.

         Despite her admission, under oath, acknowledging the danger of gunfire, T.S. testified she was not afraid of Defendant and did not think he was trying to hurt her during the incident. Additionally, she stated she was not afraid when Defendant threatened her and her guest and agreed Defendant was "just blowing steam." She stated she was never in apprehension of serious physical injury, though she recognized the seriousness of the injury she might suffer with Defendant firing from such close range. Moreover, she testified she continued to visit Defendant at the jail after he was arrested.

         Defendant's account of the incident differed as to only a few details: He testified T.S. told him to get out of the residence before she opened the door to the bedroom. He denied threatening to kill anyone. Additionally, he claimed he fired the second shot accidentally as a result of T.S. slamming the back door behind him and knocking him down the stairs.

         Defendant was convicted of first-degree burglary based on the charge he "knowingly remained unlawfully in an inhabitable structure . . . possessed by [T.S.], for the purpose of committing the offense of domestic assault in the third degree therein, " while T.S. was present in the residence. (emphasis added). He was convicted of armed criminal action on the charge he committed first-degree burglary as just described, by, with, and through the knowing use, assistance, and aid of a deadly weapon. And he was convicted of third-degree domestic assault on the charge he "purposely placed [T.S.] in apprehension of immediate physical injury by threatening to ...


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