State v. Greene

867 S.W.2d 273, 1993 Mo. App. LEXIS 1952, 1993 WL 525092
CourtMissouri Court of Appeals
DecidedDecember 15, 1993
DocketNos. 18146, 18666
StatusPublished
Cited by1 cases

This text of 867 S.W.2d 273 (State v. Greene) 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. Greene, 867 S.W.2d 273, 1993 Mo. App. LEXIS 1952, 1993 WL 525092 (Mo. Ct. App. 1993).

Opinion

MONTGOMERY, Judge.

Renae Greene (Defendant) was convicted by a jury of robbery in the first degree, § 569.020,1 (Count I), and armed criminal action, § 571.015, (Count II). After finding Defendant to be a Class X offender under § 558.019.4(3), the trial court sentenced her to a 30-year term of imprisonment on Count I and to life imprisonment on Count II, with the sentences to run consecutively.

Following sentencing, Defendant filed a pro se Rule 29.15 motion. Counsel was appointed, and counsel subsequently filed an untimely amended motion. The motion court denied the motion without an evidentiary hearing. Defendant appeals from the judgment of conviction (No. 18146) and from the order denying the Rule 29.15 motion (No. 18666). The appeals were consolidated pursuant to Rule 29.15©. We affirm in Appeal No. 18146 and reverse and remand in Appeal No. 18666.

No. 18U6

The sufficiency of the evidence is not disputed. Therefore, the following facts are presented in the light most favorable to the verdict. During the lunch hour on September 26,1989, Defendant entered the Medicine Shoppe, a pharmacy in Joplin, Missouri, owned by David and Sheree Starrett. The Starretts, husband and wife, were eating lunch behind the counter when Defendant entered the store. Sheree approached the counter and asked Defendant if she could be of assistance. Defendant indicated she wanted some “green alcohol,” and then pushed her way through a small door into the area behind the counter. Defendant pulled a small revolver from her purse, pushed Sheree, and fired a shot harmlessly. Defendant asked David for Dilaudid, a tablet form of synthetic morphine. He gave her two bottles, containing a total of approximately 50 such tablets. Defendant then forced the Starretts to lie down on the floor. Upon leaving, Defendant fired another shot. After hearing the front door close, Sheree called the police who promptly investigated the circumstances at the pharmacy.

Later that day, the Starretts went to the police station and viewed a number of photographs. They also assisted an officer in the preparation of a composite sketch of the robber.

One of the investigating officers was Detective Ken Copeland. During the investigation, he received a tip that Defendant was the robber and that she was staying at a local residence. Copeland and other officers began conducting surveillance of the house, and while doing so a woman Copeland knew came out of the house and approached him. He showed the woman the composite sketch of the robber, and she indicated that someone who looked like the person in the sketch was inside the house.

Later, Defendant came out of the house with a 79-year-old woman and they entered a cream-colored station wagon. As they attempted to drive away, police officers stopped the vehicle and arrested Defendant. During a search of the vehicle, the officers recovered an eight-shot .22 caliber revolver and two boxes of ammunition from under the front passenger seat.

After Defendant was booked and photographed at the police department, the Star-retts were shown a photographic lineup containing Defendant’s picture. From these photographs, both Starretts identified Defendant as the robber.

At trial, David Starrett testified that the pistol recovered from the station wagon was similar to the one used by the robber and [275]*275that it looked like the weapon used in the robbery. When asked how sure he was that the recovered gun was the same one used in the robbery, he answered, “I’m as sure as I can be.”

Defendant first attacks the admissibility of the pistol and ammunition, saying these items were evidence of other bad acts and irrelevant to the crimes charged against Defendant.2 However, when the prosecutor offered the pistol and ammunition into evidence, Defendant failed to object. In addition, the issue raised by this point was not presented in Defendant’s motion for new trial.3

The general rule with respect to preservation of error is that “an objection stating the grounds must be made at the time the evidence is sought to be introduced, the same objection must be set out in the motion for new trial and must be carried forward in the appeal brief in order to preserve it.”

State v. Moiser, 738 S.W.2d 549, 562 (Mo.App.1987), quoting State v. Pospeshil, 674 S.W.2d 628, 632 (Mo.App.1984). Therefore, Defendant’s contention is not preserved for our review.

However, under Rule 30.20 4 we may consider “plain errors affecting substantial rights ... in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.” Plain error is evident, obvious and clear error. State v. Bailey, 839 S.W.2d 657, 661 (Mo.App.1992). The record shows no such error occurred here.

Physical evidence is admissible if it sheds any relevant light upon a material matter at issue. State v. Friend, 822 S.W.2d 938, 944 (Mo.App.1991). Here, one of the elements of first degree robbery is that Defendant used physical force or threatened the immediate use of physical force. MAI-CR 3d 323.02. Additionally, one of the elements of armed criminal action is that Defendant committed first degree robbery with the use of a deadly weapon. MAI-CR 3d 332.02. Therefore, the pistol and ammunition were relevant to prove elements in each offense, and this evidence shed light on material facts in issue.

Weapons not directly connected with the defendant may be admitted into evidence when they bear on the crime with which he is charged. State v. Young, 701 S.W.2d 490, 496 (Mo.App.1985); State v. Greathouse, 519 S.W.2d 299, 302 (Mo.App.1975). The identity of a weapon does not have to be “wholly unqualified” for it to be admitted into evidence. State v. Collins, 607 S.W.2d 712, 715 (Mo.App.1980). It is sufficient if the weapon offered into evidence “appeared to be of the same type,” “was very similar,” and was “approximately like” the one used in the offense. State v. Crowley, 571 S.W.2d 460, 463 (Mo.App.1978). The weight to be given to the identification of a weapon is for the jury. State v. Stancliff, 467 S.W.2d 26, 30 (Mo.1971).

State v. Friend, 822 S.W.2d at 944.

Here, one of the victims stated that the pistol recovered from the vehicle in which Defendant was arrested was similar to (and looked like) the one used by Defendant in the robbery. The recovered weapon was thus sufficiently connected to Defendant to bear on the crime with which she was charged. We find no error, plain or otherwise.

Defendant’s last point is that the trial court plainly erred in giving Instruction No. 4, based on MAI-CR 3d 302.04, in that the instruction erroneously defined reasonable doubt. In State v.

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

Related

Rogers v. B.G. Transit Corp.
949 S.W.2d 151 (Missouri Court of Appeals, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
867 S.W.2d 273, 1993 Mo. App. LEXIS 1952, 1993 WL 525092, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-greene-moctapp-1993.