State v. Murphy

610 S.W.2d 382, 1980 Mo. App. LEXIS 3277
Missouri Court of Appeals·Decided December 16, 1980·No. 41873·Published·Cited by 26 cases

Opinion

SNYDER, Judge.

Appellant was found guilty by a jury of the offense of carrying a concealed weapon, § 564.610, RSMo 1969, and sentenced to three years’ imprisonment. He appeals from his conviction, arguing: (1) the evidence does not sustain his conviction; (2) irrelevant and prejudicial evidence was admitted at trial; and (3) one of the jurors should have been stricken for cause due to the juror’s bias and prejudice. There was no error. The judgment is affirmed.

Appellant was arrested by an off-duty policeman performing security duties in the Cochran Garden Apartments, a St. Louis Housing Authority building project. While the policeman was checking a building sometime after 2:40 a. m., he entered a stairwell to check the upper floors. As he went up the stairs, the police officer saw appellant and his brother standing on the third floor landing watching him. The policeman noticed both appellant and his brother were wearing jackets and had their right hands in or near their right front jacket pockets. The officer testified he saw no weapons but was wary because of the hour and the circumstances.

The officer passed the appellant and his brother, careful to watch their right arms, and proceeded to the fourth floor. After he assured himself the men on the third floor landing had not followed, the policeman moved his service revolver, badge, and identification to more readily accessible positions and went down the stairs to approach and question appellant and his brother. *384 Appellant and his brother had proceeded down the stairs, and the officer followed them down to the lobby level.

As appellant and his brother reached the lobby level, the policeman called to them to stop, and identified himself as a police officer. Appellant was closer to the officer than appellant’s brother. When the officer called, appellant made a quarter turn and looked back toward the officer. The officer, who was watching appellant’s right hand which was still in his pocket, saw the brown handle of an as yet unidentified firearm. He testified that this was the first time he had seen the weapon.

The policeman immediately exhibited his revolver and police identification and ordered appellant to raise his arms. The officer removed a .357-magnum pistol from appellant’s right jacket pocket. The police officer then approached appellant’s brother. The officer removed a .38-caliber revolver from the right jacket pocket of appellant’s brother. Further search of appellant and his brother produced ammunition and a flak jacket worn by appellant’s brother under his jacket.

Appellant’s first point relied on is that the trial court erred in denying appellant’s motion for judgment of acquittal because insufficient evidence was adduced at trial to prove the gun carried by appellant was concealed. Although appellant’s point relied on does not so specify, appellant’s brief notes the evidence disproved that the .357-magnum pistol seized from appellant was concealed upon his person because the pistol was too large to be concealed inside appellant’s jacket pocket and because the police officer who arrested appellant saw and immediately recognized the pistol protruding from appellant’s pocket and did not have to search appellant to discover the pistol. Appellant’s contention is not meritorious.

Whether a weapon is concealed within the prohibition of § 564.610, RSMo 1969, is determined by whether the weapon is discernible by ordinary observation. A weapon is not concealed simply because it is not discernible from a single vantage point if it is clearly discernible from other positions. The weapon may be concealed, however, if it is discernible only from one particular vantage point. State v. Wood, 562 S.W.2d 699, 701[1-3] (Mo.App.1978); State v. Gavin, 555 S.W.2d 653, 654[1, 2] (Mo.App.1977). Appellant’s motion for acquittal was grounded upon the allegation that the state failed to prove the essential element of concealment. The scope of appellate review of the trial court’s denial of that motion extends only to a determination of whether there is sufficient substantial evidence to support the verdict. In testing the sufficiency of the evidence, the evidence and reasonable inferences therefrom must be considered in the light most favorable to the state, and all contrary evidence and inferences must be disregarded. State v. Achter, 514 S.W.2d 825, 826[1,2] (Mo.App.1974).

Sufficient substantial evidence does support the verdict against appellant. The off-duty police officer who arrested appellant testified he did not see appellant’s weapon except for a brief moment as appellant turned back toward him, although the officer had the opportunity to see the appellant from several other angles and had been particularly observant of appellant’s right arm and hand. 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. State v. Cavin, supra, 654[3]; State v. Odzark, 532 S.W.2d 45, 49[4-7] (Mo.App.1976); State v. Jones, 523 S.W.2d 152, 154[3] (Mo.App.1975). Appellant has urged that the .357-magnum revolver which he carried was too large to be concealed in his jacket pocket. However, if the revolver were partially concealed by the jacket pocket and partially concealed by appellant’s arm and hand, that would be sufficient. State v. Miles, 124 Mo.App. 283, 101 S.W. 671 (1907) cited with approval in State v. Gibbs, 600 S.W.2d 594, 597 (Mo.App.1980). See State v. Achter, supra, 828. At trial, appellant put on his jacket and demonstrated how the .357-magnum revolv *385 er would appear when in his jacket pocket and how his arms would be held. The jury evidently believed it was possible for the appellant’s revolver to be concealed.

Appellant’s second point relied on is that the trial court erred in admitting evidence of a bullet-proof, or flak, jacket worn by appellant’s brother at the time of the arrest. Appellant argues the jacket was irrelevant, immaterial, prejudicial, inflammatory, and its admission deprived him of a fair trial. Appellant’s contention is ruled against him.

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State v. Murphy, 610 S.W.2d 382, 1980 Mo. App. LEXIS 3277 (Mo. Ct. App. 1980).

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