State of Missouri v. James W. Lewis

466 S.W.3d 629, 2015 Mo. App. LEXIS 445, 2015 WL 4497728
CourtMissouri Court of Appeals
DecidedApril 28, 2015
DocketED101944
StatusPublished
Cited by16 cases

This text of 466 S.W.3d 629 (State of Missouri v. James W. Lewis) 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
State of Missouri v. James W. Lewis, 466 S.W.3d 629, 2015 Mo. App. LEXIS 445, 2015 WL 4497728 (Mo. Ct. App. 2015).

Opinions

[631]*631OPINION

CLIFFORD H. AHRENS, Judge

James Lewis appeals the trial court’s judgment after a jury convicted him of second-degree robbery and resisting arrest. We affirm the judgment of Lewis’s convictions and sentences and remand the case with instructions to the trial court to correct nunc pro tunc a clerical error in the written judgment.

Background

At 10:30 p.m. on April 6, 2014, Lee Ann Wise was standing at her car in a grocery store parking lot when Lewis approached her from behind, stole her purse, and ran away. Police Officer Houston heard the dispatch and was in the area. He soon spotted Lewis and attempted to stop him. Lewis fled and was apprehended by a cyclist until Houston caught up. Lewis continued to resist arrest as Houston attempted to secure him in handcuffs. Wise’s purse was later recovered nearby.

The State charged Lewis with second-degree robbery and resisting arrest. At trial, Wise testified that Lewis “bumped” her shoulder and “yanked” her purse away from her. Another witness testified that he “nudged” her. A third witness testified that there was a “slight” struggle. Houston testified that Lewis had outstanding warrants. During closing arguments, defense counsel suggested that Lewis might have fled from Houston due to those warrants and not the robbery. In rebuttal argument, the State disclosed that the warrants were traffic-related, though that fact wasn’t in evidence.

The jury found Lewis guilty of both counts. The trial court sentenced him as a prior and persistent offender to consecutive prison terms of 30 years for robbery and 7 years for resisting arrest. On appeal, Lewis asserts that the trial court erred by: (1) denying his motion for acquittal, because the evidence was insufficient to establish that he used physical force, an element of robbery, and (2) failing to declare a mistrial or give a curative instruction after the State’s disclosure about Lewis’s warrants.

As a clerical matter, the trial court’s written judgment omitted its factual finding, supported by the record, that Lewis was not only a prior offender but also a persistent offender. The State requests correction of the written judgment nunc pro tunc to accurately reflect Lewis’s status as a prior and persistent offender.

Analysis

Physical Force

First, Lewis contends that the evidence was insufficient to prove that he used physical force. Our review is limited to “whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. Bateman, 318 S.W.3d 681, 687 (Mo.2010). The Court does not act as a super juror with veto powers but gives great deference to the trier of fact, accepting as true all evidence and inferences favorable to the state and disregarding those to the contrary. Id.

“A person commits the crime of robbery in the second degree when he forcibly steals property.” § 569.030. A person forcibly steals when he:

Uses or threatens the immediate use of physical force upon another person for the purpose of (a) preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking or (b) compelling the owner of such property or another person to deliver up the property [632]*632or to engage in other conduct which aids in the commission of the theft.

§ 569.010(1). Applicable precedent illustrates the fact-specific nature of the inquiry. In State v. Adams, the Supreme Court of Missouri explained, “snatching a valuable article from another is robbery where force is exercised in overcoming the resistance of the person robbed or in detaching the article taken where it is fastened to the clothing or person of the victim, but where the article is merely snatched from the hand of another the offense is stealing and not robbery.”

In State v. Tivis, 884 S.W.2d 28 (Mo.App.W.D.1994), the defendant yanked a purse from the victim’s shoulder by the strap, but there was no threat or use of force, no struggle, and no touching or injury, so the evidence was insufficient to support a robbery charge. In State v. Henderson, 310 S.W.3d 307 (Mo.App.S.D.2010), the defendant reached across a counter at a convenience store and grabbed cash from the register drawer. Although the defendant brushed the clerk’s arm as he reached, such contact was deemed de minimus and incidental to the money snatch and not sufficient to constitute physical force under the statute. Id. at 309.

By contrast, in State v. Butler, 719 S.W.2d 35 (Mo.App.E.D.1986), the defendant grabbed a woman’s purse by the strap around her arm such that her finger was hurt. Similarly in State v. Rice, 937 S.W.2d 296 (Mo.App.E.D.1996), the defendant “jerked” a purse from a woman’s shoulder with enough force to break the strap and cause pain to the shoulder. In State v. Jolly, 820 S.W.2d 734 (Mo.App.E.D.1991), the defendant and victim had a “tug of war” over a bank deposit bag, and the victim’s fingernail was ripped off in the struggle. In State v. Childs, 257 S.W.3d 655 (Mo.App.W.D.2008), the parties “tussled” over car keys. In these cases, the facts supported a finding of force.

In sum, where there was no physical contact, no struggle, and no injury, courts have found the evidence insufficient to support a robbery conviction. Childs, 257 S.W.3d at 660. But where one or more of those circumstances is present, a jury reasonably could find a use of force. Here, the jury heard the testimony of three witnesses. The victim, Wise, testified:

A: I had my hand on my purse and the subject walked up behind me and bumped me in the shoulder a little bit, reached over in front of me, grabbed my purse, and just took off running.... My purse was in the child seat of the [grocery] cart. I had my hand on it because I was about to pick it up and put it into my car.
Q: So there wasn’t a struggle over the purse like a tug of war?
A: I did have my hand on the purse and he did yank it out of my hand, but it happened so fast.

Witness Garza-Peña was in the parking lot and saw the entire incident. She testified:

A: The gentleman came, nudged her, took the purse, and ran around the corner.

Witness Steigman was in the parking lot and heard Wise yell for help. She testified:

A: I turned around and I saw this guy. Her purse was on her arm and she was going like this and the guy was trying to go the other way and push it off her arm, slide it off her arm, which obviously he did and he took off running.
Q: Was there a prolonged struggle over the purse where they were yanking back and forth like a tug of war?

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Cite This Page — Counsel Stack

Bluebook (online)
466 S.W.3d 629, 2015 Mo. App. LEXIS 445, 2015 WL 4497728, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-missouri-v-james-w-lewis-moctapp-2015.