Lewis v. State

24 S.W.3d 140, 2000 Mo. App. LEXIS 572, 2000 WL 459466
CourtMissouri Court of Appeals
DecidedApril 25, 2000
DocketNo. WD 57332
StatusPublished
Cited by7 cases

This text of 24 S.W.3d 140 (Lewis v. State) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lewis v. State, 24 S.W.3d 140, 2000 Mo. App. LEXIS 572, 2000 WL 459466 (Mo. Ct. App. 2000).

Opinion

EDWIN H. SMITH, Presiding Judge.

Gary S. Lewis appeals from the order of the circuit court denying his Rule 29.151 [141]*141motion for post-conviction relief after an evidentiary hearing. He was jury-convicted, as a prior and persistent offender, §§ 557.036, RSMo Supp.1996, 558.016, 558.019,2 in the Circuit Court of Cooper County of one count of robbery in the first degree, § 569.020.1(8), and one count of kidnapping, § 565.110, for which he was sentenced to concurrent terms of twenty years imprisonment in the Missouri Department of Corrections.

In his sole point on appeal, the appellant claims that the motion court erred in denying his Rule 29.15 motion because he received ineffective assistance of appellate counsel in that his counsel failed to raise on appeal the issue of the sufficiency of the evidence to convict him of robbery in the first degree.

We affirm.

Facts

On September 20, 1995, Sandra Wilson was working at a Total convenience store in Sedalia, Missouri, which closed nightly at 10:00 p.m. At approximately 9:15 p.m. that night, while Wilson, the only person working at that time, was outside preparing for closing, a car drove up. Wilson then went back inside the store.

The appellant entered the store, came to the counter, and began a discussion with Wilson. He asked her how much money she made. After Wilson stated that she made $5 per hour, he told her that it was not enough to lose her life over. The appellant then announced that it was a robbery and told Wilson, “Don’t make me shoot you,” while motioning beneath his sweater. Wilson never saw a gun, but opened the cash register, as the appellant had ordered her to do. She also complied with the appellant’s order for her to come around the counter and take her smock off, after placing the money on the counter. As Wilson was taking off her smock, the appellant told her to hurry, or he was going to “blow [her] fucking head off.” The appellant then ordered Wilson to get into his car, which she did. He then drove around with her, until letting her go in front of another convenience store.

The appellant was subsequently charged in the Circuit Court of Pettis County, Missouri, with one count of robbery in the first degree, in violation of § 569.020, and one count of kidnapping, in violation of § 565.110. His jury trial commenced on February 25, 1997. At the close of the State’s evidence, the appellant moved for a judgment of acquittal alleging, inter alia, that the State presented “no direct evidence whatsoever upon which a jury could find that defendant used or threatened the immediate use of a dangerous instrument or deadly weapon,” as required to convict a person of robbery in the first degree. The motion was overruled, and the jury returned its verdict finding the defendant guilty of both robbery and kidnapping.

On March 25, 1997, the appellant filed a “Motion For Judgment Of Acquittal Notwithstanding The Verdict Of The Jury, Or In The Alternative, For A New Trial,” which alleged, inter alia, that the State failed to make a submissible case for robbery in the first degree because there was insufficient evidence to show that the “defendant threatened the ‘immediate use’ of a dangerous instrument or deadly weapon.” The trial court heard evidence on the motion on May 12, 1997, and overruled it. That same day, the trial court sentenced the appellant, as a prior and persistent offender, to concurrent terms of twenty years imprisonment in the Missouri Department of Corrections. The appellant appealed to this court, which affirmed his convictions in State v. Lewis, 972 S.W.2d 591 (Mo.App.1998). On appeal, his appellate counsel did not raise a claim regarding the sufficiency of the evidence to support his conviction for robbery in the first degree.

On April 28, 1998, the appellant filed his pro se Rule 29.15 motion to vacate, set [142]*142aside or correct his judgment and sentence. After the appellant filed several pro se amendments to the motion and was appointed counsel, he moved for an extension of thirty days to file any further amended motions, which the motion court granted on September 28, 1998. On November 30, 1998, the appellant filed an amended motion to vacate, set aside or correct his judgment on the ground that, inter alia, his appellate counsel was ineffective for failing to raise on appeal the sufficiency of the evidence to support his robbery conviction. An evidentiary hearing on the appellant’s Rule 29.15 motion was held on March 12, 1999. On April 1, 1999, the motion court issued its findings of fact and conclusions of law and entered its order denying the appellant’s motion.

This appeal follows.

Standard of Review

Appellate review of a denial of a Rule 29.15 motion for post-conviction relief is limited to a determination of whether the motion court’s findings and conclusions issued in support thereof, as required by Rule 29.15(j), are clearly erroneous. Rule 29.15(k); Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000). “Findings and conclusions are clearly erroneous if, after a review of the entire record, the court is left with the definite and firm impression that a mistake has been made.” Moss, 10 S.W.3d at 511.

I.

In his sole point on appeal, the appellant claims that the motion court erred in denying his Rule 29.15 motion because he received ineffective assistance of appellate counsel in that his counsel failed to raise on appeal the issue of the sufficiency of the evidence to sustain his conviction for robbery in the first degree. The appellant was charged and convicted under § 569.020.1(3), which provides, in pertinent part: “A person commits the crime of robbery in the first degree when he forcibly steals property and in the course thereof he, or another participant in the crime, ... [u]ses or threatens the immediate use of a dangerous instrument.” As the appellant points out, due process requires that, in order to convict a person of a crime, the State is required to prove beyond a reasonable doubt each and every element of the crime charged. State v. Grim, 854 S.W.2d 403, 417 (Mo. banc 1993). In this respect, he contends that the State did not prove, beyond a reasonable doubt, that, in the course of forcibly stealing the money from the convenience store, he “threatened” the store clerk with a dangerous instrument, to-wit, a gun, as charged, because there was no evidence to show that he actually possessed a gun.

“To support a [Rule 29.15] motion [ ... ] due to ineffective assistance of appellate counsel, strong grounds must exist showing that counsel failed to assert a claim of error which would have required reversal had it been asserted and which was so obvious from the record that a competent and effective lawyer would have recognized it and asserted it. The right to relief ... inevitably tracks the plain error rule; i.e., the error that was not raised on appeal was so substantial as to amount to a manifest injustice or a miscarriage of justice.”

Moss, 10 S.W.3d at 514-15 (quoting Reuscher v. State, 887 S.W.2d 588, 591 (Mo. banc 1994)). We conclude, for the reasons stated, infra,

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Bluebook (online)
24 S.W.3d 140, 2000 Mo. App. LEXIS 572, 2000 WL 459466, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-state-moctapp-2000.