State v. Chambers

884 S.W.2d 113, 1994 Mo. App. LEXIS 1524, 1994 WL 521611
CourtMissouri Court of Appeals
DecidedSeptember 27, 1994
DocketNo. WD 49008
StatusPublished
Cited by9 cases

This text of 884 S.W.2d 113 (State v. Chambers) 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. Chambers, 884 S.W.2d 113, 1994 Mo. App. LEXIS 1524, 1994 WL 521611 (Mo. Ct. App. 1994).

Opinion

FENNER, Chief Judge.

Appellant, Tarchechee Chambers, appeals his convictions of kidnapping and armed criminal action after trial by jury.

Taken in the light most favorable to the verdict, the evidence reflects that on July 23, 1993, at approximately 11:30 p.m., Chambers entered a restaurant where he confronted the victim, Vicki Antonopoulos. Chambers and Antonopoulos lived together. Antono-poulos had terminated the relationship, but Chambers would not leave her alone. On July 22, 1993, Antonopoulos had obtained a full order of protection against Chambers from the Circuit Court of Saline County.

Antonopoulos was working at the restau-. rant when Chambers came in with a gun in his waistband. When Antonopoulos saw Chambers with the gun, she ran to the basement and tried to secure herself in a basement office. Chambers followed Antonopou-los to the basement and pulled open the door to the office where she had gone. Chambers pulled Antonopoulos out of the office, placed his arm around her neck, pointed the cocked gun at her head and said, “I ought to kill you.”

Antonopoulos’s daughter, Bobbie, was in the restaurant when Chambers came in with the gun. Bobbie saw Chambers chase her mother to the basement and Bobbie called the police. An officer, Sergeant Bolling, arrived and began to converse with Chambers from the top of the stairs to the basement. Chambers told Sergeant Bolling not to come into the basement. Thereafter, Chambers [115]*115continued to hold Antonopoulos in the basement for an hour and a half. Sergeant Boll-ing asked Chambers on several occasions to release Antonopoulos, but Chambers refused until he finally surrendered.

In his first point on appeal, Chambers argues that the trial court erred by admitting evidence that the gun used was taken from Danny Hamblen without Hamblen’s consent. Chambers argues that this was inadmissible evidence of another crime. As part of his first point, Chambers also argues that it was error for the trial court to overrule his motion in limine to exclude evidence that the gun was stolen from Hamblen.

A ruling on a motion in limine is interlocutory only and is subject to change during the course of trial. State v. Purlee, 839 S.W.2d 584, 592 (Mo. banc 1992) (citation omitted). The motion in limine itself preserves nothing for appeal. Id.

In the case at bar, on direct examination of Hamblen by the State, there was evidence introduced, without objection, to show that the gun belonged to Hamblen. However, when the State tried to show that the gun was taken without Hamblen’s permission, Chambers objected and the objection was overruled. The subject came up again, later in the trial when Chambers was under cross-examination by the State. Chambers, under cross-examination and without objection to the question presented ... testified that he took the gun from a drawer in Hamblen’s bedroom on July 23, 1993, when he was in the Hamblen residence to use the bathroom.

Generally, a party cannot complain about the admission of testimony over his objection, where evidence of the same tenor is admitted without objection. State v. Griffin, 876 S.W.2d 43, 45 (Mo.App.1994). In the case at bar, there was evidence introduced on more than one occasion to show that the gun was taken from Hamblen without his permission. On at least one occasion, there was no objection to the evidence.

Therefore, the trial court did not err in admitting evidence that the gun was taken from Hamblen without his permission.

Chambers’ first point is denied.

In his second point, Chambers argues that the trial court erred in refusing to instruct the jury on false imprisonment. Chambers argues that false imprisonment is a lesser included offense of kidnapping and that his false imprisonment instruction was supported by the evidence.

A charge of kidnapping can be premised upon a defendant unlawfully removing another without the victim’s consent or unlawfully confining another without consent. § 565.-110, RSMo 1986.

In State v. Seddens, 624 S.W.2d 470, 473 (Mo.App.1981), this court held that false imprisonment is not a lesser included offense of kidnapping when the kidnapping charge is based upon unlawful removal as opposed to unlawful confinement. The Seddens court stated that when the kidnapping charge is based upon unlawful confinement, all elements of false imprisonment are included in the offense of kidnapping. Id. In Seddens, the kidnapping charge was based upon unlawful removal.

The State argues in the case at bar that the court’s conclusion in Seddens, that false imprisonment is a lesser included offense of kidnapping when the kidnapping charge is based upon unlawful confinement, is dicta and not controlling. We do not find it necessary here to address this question because even assuming, without deciding, that false imprisonment is a lesser included offense for kidnapping, it was not error for the court to refuse appellant’s false imprisonment instruction under the evidence presented.

A court is not required to instruct on a lesser included offense unless there is basis for an acquittal of the greater offense and a conviction of the lesser offense. State v. Olson, 636 S.W.2d 318, 321 (Mo. banc 1982); § 556.046.2, RSMo 1986. In order for there to be a basis for an acquittal of the greater offense, there must be some affirmative evidence that an essential element of the greater offense is lacking and the element which is lacking must be the basis for acquittal of the greater offense and conviction of the lesser. Olson, 636 S.W.2d at'322. In determining whether there is sufficient affirmative evidence that an essential element of the great[116]*116er offense is lacking, a court may examine the totality of the evidence. Id. at 322.

The offense of kidnapping is defined in section 565.110, RSMo 1986, as follows:

A person commits the crime of kidnapping if he unlawfully removes another without his consent from the place where he is found or unlawfully confines another without his consent for a substantial period, for the purpose of
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(5) Inflicting physical injury on or terrorizing the victim or another.

Terrorizing is defined as “to fill with terror or anxiety.” Webster’s Collegiate Dictionary 1218 (9th ed. 1986). Terror is defined as “a state of intense fear.” Id.

The offense of false imprisonment is defined in section 565.130, RSMo 1986, as follows:

A person commits the crime of false imprisonment if he knowingly restrains another unlawfully and without consent so as to interfere substantially with his liberty.

In support of his second point, Chambers argues that the jury could have found that he did not have the purpose of terrorizing Vicki Antonopoulos since he testified that his purpose was to commit suicide in front of her.

Chambers’ stated intention was to shoot himself in front of Vicki Antonopoulos, a woman with whom he had been romantically involved.

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Bluebook (online)
884 S.W.2d 113, 1994 Mo. App. LEXIS 1524, 1994 WL 521611, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-chambers-moctapp-1994.