State v. Cole

662 S.W.2d 297, 1983 Mo. App. LEXIS 4242
Missouri Court of Appeals·Decided December 6, 1983·No. 44852·Published·Cited by 21 cases

Opinion

KAROHL, Presiding Judge.

Defendant Arnold Butch Cole appeals from a conviction in a court-tried case of robbery in the first degree, § 569.020 RSMo 1978, and carrying a concealed weapon, § 571.115 RSMo 1978. 1 He received concurrent sentences of seventeen years and five years, respectively.

On appeal defendant contends that (1) there was insufficient evidence of concealment; (2) there was insufficient evidence of intent for first degree robbery because of evidence of defendant’s intoxication; (3) the trial court erred in admitting seized evidence and the victim’s identification of defendant because they were tainted by an illegal arrest; (4) the trial court erred in admitting the victim’s identification of defendant because the identification procedure was unduly suggestive; and (5) defendant received ineffective assistance of counsel. We affirm.

Although the state correctly asserts that defendant’s points on appeal fail to comply with Rule 30.06(d), the argument portion of defendant’s brief clarifies the points and we elect to decide them on the merits.

We turn first to defendant’s challenge as to the sufficiency of the evidence. In a jury-waived case we review the sufficiency of the evidence as in a jury-tried case. State v. Turnbough, 604 S.W.2d 742, 744 (Mo.App.1980). The appellate court is bound to consider as true the evidence most favorable to the state and all reasonable inferences therefrom, disregarding evidence and inferences to the contrary. State v. Smith, 621 S.W.2d 94, 95 (Mo.App.1981). We will affirm the conviction if supported by substantial evidence. State v. Trask, 581 S.W.2d 417, 418 (Mo.App.1979).

The evidence showed that on October 10, 1979, at 11:15 p.m., Benjamin Conway was *300 working alone as an attendant at the Clark Gasoline Station at 4301 Lafayette in the City of St. Louis. Conway walked toward the back room to deposit some money, turned around, and saw a person he later identified as defendant standing behind him holding a large revolver. The lighting was good in the station, and Conway said the man was wearing a three-quarter-length blue jean jacket, white or tan pants, a red or dark stocking cap, a nylon mask, blue tennis shoes and no socks.

Conway attempted to shut defendant out of the back room, but was unsuccessful. In the struggle, the gun fired, the shell hit the wall, and Conway fell to the floor. Defendant grabbed Conway by his hair and hit his head on the concrete floor. After threatening to kill the victim, defendant kicked him several times and ran out of the station carrying the coin changer, the cash box, and a carton of cigarettes. Conway called the police, and when they arrived he described defendant to them.

Two men in a nearby restaurant were alerted and arrived at the Clark Station in time to see defendant, dressed in a red stocking cap, nylon mask, light pants, and a levi jacket, leaving the station with the cash box. One of the witnesses saw defendant holding a gun.

The two individuals pursued defendant. Although they lost sight of defendant in a gangway, they pointed out his direction to the police who arrived eight to ten minutes later. Police Officer Keough, following the witnesses’ directions, found defendant crouched down in a stairwell. Defendant was wearing light pants, a blue jean jacket and no socks. After arresting defendant, the police searched him and found a .38 caliber revolver stuck in the waistband of his pants. The coin changer was found at the head of the staircase and the stocking cap, nylon mask, cash box, and carton of cigarettes were found nearby.

In the courtroom, the police officer identified defendant as the person he arrested. Following the arrest defendant was taken to the Clark Station and positively identified by Conway.

Defendant, his father, and his wife testified that defendant had been drinking heavily the night of the crime. Defendant testified that he did not remember anything from the time he left his father’s house that night until he woke up in a holdover cell. He testified that he did not commit the crime.

Defendant claims there was insufficient evidence that the weapon he was carrying was concealed. Concealment is a necessary element of the offense of carrying a concealed weapon, State v. Tate, 416 S.W.2d 103, 105 (Mo.1967), and generally to meet the test of concealment the gun must not be discernible by ordinary observation. State v. Payne, 654 S.W.2d 139, 141 (Mo.App.1983). A weapon is not concealed simply because it cannot be seen from a single vantage point if it is clearly visible from other positions. State v. Murphy, 610 S.W.2d 382, 384 (Mo.App.1980). If it can only be seen from one particular vantage point, however, it is considered concealed. Id.

Here the weapon was clearly visible to the victim during the robbery and to one of the two witnesses who saw defendant leave the gas station. The police officer, however, found defendant crouched down in a stairwell in a dark backyard. The officer told defendant to come out of the stairwell, placed him under arrest, and when he searched him he found the gun in 'his waistband. When the officer found him, defendant was wearing a three-quarter-length or long blue jean jacket.

The fact that defendant was wearing a jacket that extended well below his waist, that the gun was found in his waistband, and that it was not discovered until a search of his person, was sufficient to support a finding that the weapon was not discernible by ordinary observation. See State v. Woolbright, 495 S.W.2d 637 (Mo.1973); State v. Shegog, 577 S.W.2d 185 (Mo.App.1979); and State v. Wood, 562 S.W.2d 699 (Mo.App.1978). We therefore find sufficient evidence of concealment.

*301 Defendant also contends the evidence was insufficient to support his first degree robbery conviction because evidence of his intoxication negated the necessary intent. Defendant attempted to invoke the voluntary intoxication defense, § 562.076.-1(1), which became effective January 1, 1979. The defense is available to negate “the existence of the mental states of purpose or knowledge when such mental states are elements of the offense charged or of an included offense.” § 562.076.1(1). State v. Helm, 624 S.W.2d 513, 517 (Mo.App.1981), specifically found the defense inapplicable to first degree robbery because the robbery statute, § 569.020, contains no explicit finding that the offense be committed with purpose or knowing intent. The jury need not assess a defendant’s mental state to reach a robbery verdict. 624 S.W.2d at 517. Although defendant attacks the soundness of Helm, under the circumstances we need not address this contention. The trial court found defendant’s evidence insufficient to raise the defense.

Free access — add to your briefcase to read the full text and ask questions with AI

State v. Cole, 662 S.W.2d 297, 1983 Mo. App. LEXIS 4242 (Mo. Ct. App. 1983).

662 S.W.2d 297 (State v. Cole) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

State v. Aziz
861 S.W.2d 803 (Missouri Court of Appeals, 1993)
Battle v. Armontrout
814 F. Supp. 1412 (E.D. Missouri, 1993)
State v. Jordan
793 S.W.2d 905 (Missouri Court of Appeals, 1990)
State v. Harden
750 S.W.2d 666 (Missouri Court of Appeals, 1988)
Wright v. State
743 S.W.2d 571 (Missouri Court of Appeals, 1987)
State v. Carothers
743 S.W.2d 489 (Missouri Court of Appeals, 1987)
State v. Weekly
728 S.W.2d 664 (Missouri Court of Appeals, 1987)
State v. Pettit
719 S.W.2d 474 (Missouri Court of Appeals, 1986)
State v. Straub
715 S.W.2d 21 (Missouri Court of Appeals, 1986)
State v. Martin
714 S.W.2d 795 (Missouri Court of Appeals, 1986)
State v. Fernandez
691 S.W.2d 267 (Supreme Court of Missouri, 1985)
State v. Koetting
691 S.W.2d 328 (Missouri Court of Appeals, 1985)
Cole v. State
690 S.W.2d 195 (Missouri Court of Appeals, 1985)
State v. Perkins
686 S.W.2d 873 (Missouri Court of Appeals, 1985)
State v. Mattox
689 S.W.2d 93 (Missouri Court of Appeals, 1985)
Joyce v. State
684 S.W.2d 553 (Missouri Court of Appeals, 1984)
State v. Smith
684 S.W.2d 519 (Missouri Court of Appeals, 1984)
State v. Edmaiston
679 S.W.2d 360 (Missouri Court of Appeals, 1984)
State v. Williams
676 S.W.2d 845 (Missouri Court of Appeals, 1984)