State v. Bateman

526 S.W.3d 357, 2017 WL 3597082, 2017 Mo. App. LEXIS 796
CourtMissouri Court of Appeals
DecidedAugust 22, 2017
DocketNo. ED 104715
StatusPublished

This text of 526 S.W.3d 357 (State v. Bateman) 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 v. Bateman, 526 S.W.3d 357, 2017 WL 3597082, 2017 Mo. App. LEXIS 796 (Mo. Ct. App. 2017).

Opinion

ROBERT G. DOWD, JR., Presiding Judge

Rodney Bateman (“Appellant”) appeals from the judgment entered after a jury trial on his conviction for unlawfully using a weapon by carrying a concealed firearm.1 He contests only the sufficiency of the evidence to prove that the firearm was concealed. We affirm.

When considering the sufficiency of the evidence on appeal, we must determine whether sufficient evidence permits a reasonable juror to find guilt beyond a reasonable doubt. State v. Wright, 382 S.W.3d 902, 903 (Mo. banc 2012). We view the evidence and all reasonable inferences therefrom in the light most favorable to the verdict and disregard any evidence and inferences contrary thereto. Id. “This is not an assessment of whether the Court believes that the evidence at trial established guilt beyond a reasonable doubt but rather 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.” Id. We do not act as a super juror with veto powers, but give great deference to the trier of fact. Id.

A person commits the offense of unlawful use- of a weapon if he knowingly “carries concealed upon or about” his person a firearm readily capable of lethal use. Section 571.030.1(1). The test of concealment is “whether the weapon is so carried as not to be discernible by ordinary observation.” State v. Bordeaux, 337 S.W.2d 47, 49 (Mo. 1960); see also State v. Dunn, 857 S.W.2d 359, 361-62 (Mo. App. E.D. 1993). “A weapon is not concealed merely because it is not discernible from a particular single vantage point if it is clearly discernible from other .positions; but it may be concealed if it is discernible only from a single particular vantage point.” State v. Raff-Covington, 410 S.W.3d 268, 271 (Mo. App. E.D. 2013). Portions of the defendant’s body can be considered when determining whether a weapon is concealed. Id, “A police officer’s testimony that he did not see a pistol despite the opportunity to view the accused under conditions likely to cause a police officer to be particularly observant for weapons is entitled to some consideration both at the trial and appellate levels.” Id.

The evidence at, trial established that while investigating another situation at 1:00 a.m. in a iieighborhood with a high rate of homicides, gun violence and drug activity, police officers saw an SUV speed by and-crash into a parked car. Concerned that the driver had been injured, the officers approached the vehicle to help. As they approached;' the driver—later identified as Appellant—staggered out of the vehicle and looked disoriented. The first officer who testified said that Appellant was '“hunched over kind of with his left [359]*359shoulder blading forward, and he was clutching ... either his upper thigh or his waistband” on the right side. The officer said Appellant “looked like he was attempting to conceal something” with the position of his body. Because he always anticipates someone has a firearm, the officer asked Appellant to put his hands up. The officer testified that Appellant complied and, at that point, he could “see, like a large outline of'a firearm” on the right side of Appellant’s waistband. It was “completely below” Appellant’s waistline and “fully concealed” in his pants. When asked how the officer knew that the bulge he saw under Appellant’s clothing was a firearm, the officer said “it was very distinct” and “had an extended magazine on it.” Thé officer testified that there are not too many other things that someone will put in their waistband. He testified it was a'“very noticeable” and “very distinct” bulge.

The second officer who testified said that when he approached the ear, Appellant was facing the vehicle and the officer thought he may have been trying to get back in the SUV. The officer saw “something” poking the back of Appellant’s shirt out on his lower right side, at his waist. The officer said he could not really tell what it was, he just knew that he did not want Appellant to touch it since it was possibly a firearm, so he told Appellant to put up his hands, The officer did a pat-down search of Appellant and immediately found and removed a large firearm with an extended magazine from the right side of Appellant’s waistband. He testified that prior to removing it, the gun was “fully concealed” and he could not see it at all.

On appeal, Appellant asserts that it was “always apparent” to these officers that he had a gun from the beginning of their encounter with him because one officer saw the outline of the firearm and the other saw the firearm poking Appellant’s shirt out. Thus, he claims, the evidence was not sufficient to show concealment and, in fact, proved the weapon was not concealed. We disagree.

First, the second officer did not testify that he saw a “firearm” poking out the back of Appellant’s shirt, only that he saw “something” he thought wás “possibly” a firearm was making Appellant’s shirt stick out. When the officer sees something but does not recognize it as a weapon, the weapon .can still be considered “concealed.” See, e.g, State v. Rowe, 67 S.W.3d 649, 669 (Mo. App. W.D. 2002) (evidence was sufficient to show knife was concealed even though handle was visible because officer did not readily recognize it as part of a weapon). Appellant’s firearm was at all times wholly covered with clothing, and from this officer’s vantage point, the firearm was not discernable by ordinary observation until the officer removed it during the pat-down search. Even if the weapon could be seen from the other officer’s viewpoint, the jury could still reach a conclusion that it was concealed. See, e.g., State v. Howard, 973 S.W.2d 902, 907 (Mo. App. S.D. 1998) (evidence that weapon stashed under seat of a car was not visible except by looking down into crack between seats was sufficient evidence of concealment); State v. Straub, 715 S.W.2d 21, 22 (Mo. App. E.D. 1986) (evidence that gun not visible until officer got closer was sufficient evidence of concealment); State v. Murphy, 610 S.W.2d 382, 384 (Mo. App. E.D. 1980) (evidence that officer did not see weapon, covered partially by jacket pocket and partially by hand, except for brief moment as defendant turned was sufficient evidence of concealment).

Second, being able to discern by ordinary observation the outline of a firearm under clothing is not the equivalent of seeing the actual firearm itself. Most importantly for purposes of this crime, the [360]*360fact that an officer could tell that the bulge in Appellant’s pants was a firearm does not change the fact that Appellant clearly intended to carry this weapon in a concealed manner. Appellant stuffed this large gun deep into the waistband of his pants and put his shirt over the portion that stuck up above the waistband so as to completely cover it with his clothing.

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Related

State v. Odzark
532 S.W.2d 45 (Missouri Court of Appeals, 1976)
State v. Rowe
67 S.W.3d 649 (Missouri Court of Appeals, 2002)
State v. Murphy
610 S.W.2d 382 (Missouri Court of Appeals, 1980)
State v. Bordeaux
337 S.W.2d 47 (Supreme Court of Missouri, 1960)
State v. Crone
399 S.W.2d 19 (Supreme Court of Missouri, 1966)
State v. Howard
973 S.W.2d 902 (Missouri Court of Appeals, 1998)
State v. Suber
694 N.E.2d 98 (Ohio Court of Appeals, 1997)
State v. Woolbright
495 S.W.2d 637 (Supreme Court of Missouri, 1973)
State v. Payne
654 S.W.2d 139 (Missouri Court of Appeals, 1983)
State v. Mattox
689 S.W.2d 93 (Missouri Court of Appeals, 1985)
State v. Straub
715 S.W.2d 21 (Missouri Court of Appeals, 1986)
State v. Dowdy
724 S.W.2d 250 (Missouri Court of Appeals, 1986)
State v. Dunn
857 S.W.2d 359 (Missouri Court of Appeals, 1993)
State v. Wright
382 S.W.3d 902 (Supreme Court of Missouri, 2012)
State v. Raff-Covington
410 S.W.3d 268 (Missouri Court of Appeals, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
526 S.W.3d 357, 2017 WL 3597082, 2017 Mo. App. LEXIS 796, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bateman-moctapp-2017.