State v. Kirksey

725 S.W.2d 611, 1987 Mo. App. LEXIS 3562
CourtMissouri Court of Appeals
DecidedJanuary 27, 1987
DocketNo. 49594
StatusPublished
Cited by6 cases

This text of 725 S.W.2d 611 (State v. Kirksey) 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. Kirksey, 725 S.W.2d 611, 1987 Mo. App. LEXIS 3562 (Mo. Ct. App. 1987).

Opinion

SATZ, Judge.

Defendant Maurice Kirksey was convicted by a jury of robbery in the first degree, § 569.020 RSMo.1979, and armed criminal action § 571.015, RSMo.1979. He was sentenced to life imprisonment and a consecutive sentence of 15 years. Defendant appeals. We affirm.

One morning in June, 1984, Frank Guerra, a bank courier, drove his car into a Sunoco station and parked in front of the station attendant’s window. As a bank courier, Guerra deposited cash receipts in banks for various service stations. Guerra got out of his car, was given several bags of cash receipts by the station attendant, William Waghorn, and then Guerra locked the bags in the trunk of his car. As Guerra started back toward the driver’s side of his car, three men attacked him. One man grabbed Guerra by the throat. A second held a pistol at Guerra’s head, while the third took Guerra’s gun and pointed it at Waghorn. The men then took Guerra’s car keys, opened the trunk, grabbed the bags of money and escaped in a green Chevrolet.

Elijah Johnston noticed the green Chevrolet “bum rubber” as it left the Sunoco lot. Johnston gave police the Chevrolet’s license plate number. The police traced the vehicle to a Palm Avenue address and sent out an all points bulletin. A Sergeant Brown heard the bulletin and proceeded to the Palm Avenue address, a multi-family apartment house. After arriving there, Brown noticed defendant standing in a doorway, behind an iron gate. Apparently, defendant saw Brown and slammed the door shut. Brown radioed for assistance, then knocked on the door, and defendant’s girlfriend, Shirley Woods, answered. Woods told Brown she did not have a key to the gate and told him to try to enter through the back.

Officer Braxton arrived shortly after Brown and went to the rear of the building. Braxton was accompanied by several other officers who had just arrived. The officers used wire cutters to cut a lock off the back gate and then entered the apartment. When they did not find the defendant in Wood’s apartment, the officers searched the rest of the building.

In the basement, they found some weapons, including a service revolver Guerra identified as his. Defendant and the Suno-co money were found in Lorraine Ford’s apartment, located above Shirley Woods’ apartment. Defendant was found in Ford’s bedroom, lying on the bed with a towel over his head. These officers arrested defendant. Meanwhile, other officers not involved in the search, found the green Chevrolet observed by Elijah Johnston parked nearby.

Subsequently, defendant was placed in a lineup. At the lineup, both Waghorn and Guerra thought defendant looked familiar, but they could not make a positive identification. A palm print found on the trunk lid of Guerra’s car, however, was identified as defendant’s print. In addition, three of the money envelopes found in the money bags were marked with defendant’s fingerprints.

Defendant testified at trial. He said he was in Lorraine Ford’s apartment because she had asked him to fix her stove. According to defendant, about twenty-five minutes after he arrived, someone knocked on Ford’s door. It was a man with a bag. The man dropped the bag, and money and envelopes spilled out. He then ordered Ford and defendant to put the spilled money back into the bag. They complied. Ford refused to let the man in her apartment and closed the door leaving him in the hallway. Defendant identified the man as “Mannix”, whom defendant had seen around the neighborhood. Defendant said he was merely resting when police later arrested him.

Defendant also called a neighbor, Reverend Thomas, as a witness. The Reverend said three youths knocked on his door, [614]*614holding money satchels, but defendant was not one of these three.

In rebuttal, the state called Ford as a witness. She said defendant came to her apartment asking for water. He was carrying a bank bag. No other person came to her apartment that morning.

Defendant first contends the state failed to make a submissible case. We disagree.

To resolve the issue of submissibility, we view the evidence and inferences in the light most favorable to the verdict and disregard all contrary evidence and contrary inferences. E.g., State v. Overkamp, 646 S.W.2d 733, 736 (Mo.1983). We do not weigh the evidence but determine whether the evidence was sufficient for reasonable persons to have found defendant guilty as charged. E.g., State v. Porter, 640 S.W.2d 125, 126 (Mo.1982). In making this determination, we must consider whether any reasonable hypothesis of innocence exists. E.g., State v. Goddard, 649 S.W.2d 882, 884 (Mo. banc 1983).

Without again detailing the facts, the police traced defendant through an automobile license. The automobile, the stolen money and the robbery weapons were all found in the same vicinity as defendant. Defendant matched the general description of one of the robbers, his fingerprints were on the money envelopes and his palm print was on the courier’s vehicle. These facts alone make a submissible case on robbery, first degree.

Defendant does not offer a reasonable theory of his innocence. Instead, he attacks the state’s evidence. First, he contends the state’s eyewitnesses, Waghom and Guerra, could not identify him. Literally, this is trae. However, the state is not required to prove its case by direct evidence, particularly identification by eyewitnesses. See, e.g., State v. Worley, 353 S.W.2d 589, 594 (Mo.1962). Moreover, Guerra and Waghom did say defendant looked familiar, and Guerra only minimally qualified his identification by saying he was not “positive.” Contrary to defendant’s contentions, this testimony of Guerra and Waghom strengthens rather than weakens the state’s already submissible case.

Defendant also contends the evidence of his fingerprints on the money envelopes is irrelevant, and, thus, inadmissible. This evidence was irrelevant, defendant contends, because none of the “loot” was in the envelopes. This argument is misdirected and, thus, misses the mark.

“[Evidence]. is relevant if it ... tends to prove a fact in issue”, State v. Mercer, 618 S.W.2d 1, 9 (Mo. banc 1981), cert. denied 454 U.S. 933, 102 S.Ct. 432, 70 L.Ed.2d 240 (1981), and evidence tends to prove a fact in issue if it makes the existence of the fact more probable than it would be without such evidence. Id. Defendant’s fingerprints were on money envelopes found inside the stolen money bags. This fact tends to prove defendant handled the stolen property and, thus, tends to show defendant’s guilt. To make a submissible case, there was no need for the state to show defendant was found with the bag in his hand or his hand in the bag.

Defendant next contends the submission of both robbery in the first degree and armed criminal action constituted double jeopardy, in violation of the Fifth Amendment of the United States Constitution and Article I, § 19 of the Missouri Constitution. More specifically, defendant argues that § 569.020 RSMo.1979, defining robbery, first degree, “creates an enhancement for the Use of a weapon, and, therefore; a second enhancement statute [§ 571.015 RSMo.1979, armed criminal action] for the same weapon, is constitutionally infirm.” We disagree.

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Bluebook (online)
725 S.W.2d 611, 1987 Mo. App. LEXIS 3562, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kirksey-moctapp-1987.