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State v. Whittaker

Court of Appeals of Missouri, Eastern District, Second Division

April 24, 2018

STATE OF MISSOURI, Respondent,
v.
ROBERT WHITTAKER, Appellant.

          Appeal from the Circuit Court of the City of St. Louis Honorable Steven R. Ohmer

          PHILIP M. HESS, JUDGE.

         Introduction

         Robert 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.

         Facts

         On 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.

         By this 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.

         A grand 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 follows.

         Standard of Review

         On 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.

         We 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.

         I. Sufficiency of the Evidence

         In 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 State.

         A 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.[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 ...


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