Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of the City of St. Louis Honorable
Steven R. Ohmer
M. HESS, JUDGE.
Whittaker appeals from the judgment of convictions of
first-degree robbery and armed criminal action arising out of
an incident in which Whittaker used a knife when confronted
while stealing a lawn mower. Whittaker waived his right to a
jury trial, and after a bench trial, the court found
Whittaker guilty on both counts. Specifically, the court
found the knife was used to overcome or prevent resistance to
the taking or keeping of the lawn mower. The court sentenced
Whittaker to concurrent terms of imprisonment totaling
fifteen years. The judgment also found Whittaker a prior and
persistent offender. Whittaker raises two points on appeal,
arguing the trial court erred in entering judgment against
him because: 1) there was insufficient evidence as a matter
of law to prove he forcibly stole the lawn mower and used a
dangerous instrument in the course thereof; and 2) no prior
and persistent offender finding was made at trial so the case
must be remanded so the clerical error in the judgment and
sentence finding him a prior and persistent offender can be
removed. We correct the judgment and sentence to delete the
prior and persistent offender finding and affirm as modified.
August 1, 2015, after cutting grass at a property on North
Broadway in the City of St. Louis, A.M. ("Victim")
put his lawn mower in the bed of his pickup truck and used a
bungee cord to secure it inside the bed. Victim and his
girlfriend then went to the store across the street. While
inside, the store clerk saw someone tampering with
Victim's truck. The clerk alerted Victim and he went
outside and found Whittaker had removed the lawn mower from
the bed of the truck to the ground. Victim confronted
Whittaker and moved towards him, and Whittaker went around
the truck but came back towards Victim with a knife in his
hand. Whittaker slashed the knife at Victim with one hand and
grabbed at him with the other. Whittaker told Victim to get
back or he would cut him. Victim moved back to avoid the
knife, but Whittaker scratched him with his fingernail while
grabbing at him. Victim warned Whittaker he would defend
himself if Whittaker kept coming at him.
point, Victim's girlfriend, the store clerk, and two
other patrons had come out of the store. Whittaker was
informed the police had been called. Whittaker came at the
store clerk and other patrons with his knife, but Victim got
between them. Whittaker then fled on foot and the police
found him a few blocks away.
jury charged Whittaker by indictment, as a prior and
persistent offender, with two counts: 1) first-degree
robbery, a class A felony, and 2) armed criminal action, an
unclassified felony. The indictment pled facts warranting a
finding that Whittaker was a prior offender, but did not
plead facts warranting a finding that Whittaker was a
persistent offender. Whittaker waived his right to a jury
trial. At the bench trial, Whittaker admitted to having been
found guilty of multiple felonies committed at different
times prior to these charges, but the court never made
findings of fact that Whittaker was a prior and persistent
offender. The court found Whittaker guilty on both charges,
and sentenced Whittaker to concurrent terms of imprisonment
totaling fifteen years. While the court never made findings
on the record at trial or during sentencing that Whittaker
was a prior and persistent offender, the judgment found
Whittaker a prior and persistent offender. This appeal
direct appeal, we review for prejudice, not mere error, and
will reverse only if the error was so prejudicial that it
deprived the defendant of a fair trial. State v.
Marrow, 968 S.W.2d 100, 106 (Mo. banc 1998). We review
the facts in the light most favorable to the verdict.
Id. Issues not properly preserved for appeal may be
considered only if the court finds that manifest injustice or
a miscarriage of justice has resulted therefrom. Id.
review the sufficiency of the evidence in a bench trial of a
criminal case to determine whether the State presented
sufficient evidence from which the trier of fact could have
reasonably found the defendant guilty. State v.
Allen, 508 S.W.3d 181, 186 (Mo. App. E.D. 2017). This is
not an assessment of whether the court believes the evidence
at trial established guilt beyond a reasonable doubt, but 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.
State v. Nash, 339 S.W.3d 500, 509 (Mo. banc 2011).
All evidence favorable to the State and reasonable inferences
drawn therefrom are accepted as true, and all evidence and
inferences to the contrary are disregarded. Id.
Great deference is allotted to the trier of fact and we will
not reweigh the evidence. Id.
Sufficiency of the Evidence
point I, Whittaker argues the trial court erred in entering
judgment against him because there was insufficient evidence
as a matter of law to prove he forcibly stole the lawn mower
and used a dangerous instrument in the course thereof.
Specifically, Whittaker contends the State failed to produce
sufficient evidence showing he appropriated the lawn mower,
and used or threatened force to prevent or overcome
resistance to his taking the lawn mower or for retaining it.
On the appropriation, Whittaker asserts he never had
possession, power, or control over the lawn mower because it
was always attached to Victim's truck via a bungee cord.
Regarding his argument related to using force, Whittaker
argues he did not use or threaten force until after he had
given up on stealing the lawn mower. Whittaker argues
State v. Kelly, 43 S.W.3d 343 (Mo. App. W.D. 2001),
is directly on point, and that like in Kelly, the
evidence supports that at most he committed the crime of
stealing, not robbery. The State argues Kelly is
distinguishable and there was sufficient evidence produced to
allow the trial court to draw the reasonable inference
Whittaker appropriated the lawn mower and used a dangerous
instrument while doing so, thereby supporting the robbery
conviction. Given our standard of review, we agree with the
person commits first-degree robbery "when he forcibly
steals property and in the course thereof he . . . [i]s armed
with a deadly weapon[, ] or . . . [u]ses or threatens the
immediate use of a dangerous instrument against any
person[.]" § 569.020.1. "[A] person
'forcibly steals', and thereby commits robbery, when,
in the course of stealing, as defined in section 570.030, he
uses or threatens the immediate use of physical force upon
another person for the purpose of . . . [p]reventing or
overcoming resistance to the taking of the property or to the
retention thereof immediately after the taking[.]"
§ 569.010(1). Under section 570.030, "[a] person
commits the crime of stealing if he or she appropriates
property or services of another with the purpose to deprive
him or her thereof, either without his or her consent or by
means of deceit or coercion." § 570.030.1.
"Appropriate" is defined as "to take, obtain,
use, transfer, conceal or retain possession of[.]"
§ 570.010(2). Exercising control by any of the
enumerated acts, with the requisite intent, is a prohibited