State v. Ohmes

675 S.W.2d 681, 1984 Mo. App. LEXIS 4800
CourtMissouri Court of Appeals
DecidedAugust 14, 1984
DocketNo. WD 35273
StatusPublished
Cited by5 cases

This text of 675 S.W.2d 681 (State v. Ohmes) 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. Ohmes, 675 S.W.2d 681, 1984 Mo. App. LEXIS 4800 (Mo. Ct. App. 1984).

Opinion

PER CURIAM:

Defendant Lucille Ohmes appeals from judgment entered upon a misdemeanor conviction by jury in Linn County Circuit Court of one count of selling intoxicating liquor to a minor, one Daniel McCubbins, § 311.310, RSMo 1978, and two counts of attempting to sell intoxicating liquor to minors, Myron Weimer and Peter Cravens, §§ 311.310, 564.011, RSMo 1978. She was assessed a fine of $500 on Count I, and $250 on each of the other two counts.

The judgment is affirmed.

On March 4, 1983, two agents of the Missouri Division of Liquor Control were sitting in their car outside Powell’s Liquor Store near Salisbury, the store being located on the north side of a building which also contains a restaurant and lounge. They observed a young man, Myron Weimer, enter the liquor store. Mr. Conner, one of the agents, followed Weimer into the store and observed what Weimer did while there. Conner followed Weimer out as he left the store, as another young man, Peter Cravens, entered. Each young man had asked for a twelve-pack of Budweiser beer and paid for it, Cravens with currency and Weimer by personal check. Defendant Lucille Ohmes was the clerk on duty in the store and it was with her that Weimer and Cravens dealt. Soon afterwards, Weimer approached Cravens outside and told him that the two men outside (referring to the liquor control agents, although they had not been identified as such), looked suspicious. Each of the young men had been told by defendant to “go to the back door” to pick up his purchase, but neither one picked up his beer. The two counts of attempted sale are based upon the transactions with Weimer and Cravens.

A third young man, Darrell McCubbins, entered the store, asked defendant for a twelve-pack of Busch beer, and told her he had a ten-dollar bill. He then went out to his car and drove to the back door where he entered and picked up his beer, laid down the $10.00 bill and picked up $5.25 change which lay on the counter.

A recital of the more salient facts will accompany discussion of each point on appeal. Defendant does not challenge the sufficiency of the evidence upon which her conviction is based.

Defendant raises four points on appeal.

[683]*683I

In her first point on appeal, defendant claims she should be discharged because the trial testimony of witnesses McCub-bins, Cravens, and Weimer was forced and obtained by the state by unlawful means. The three individuals had signed statements a few days prior to trial declaring their intention to exercise their Fifth Amendment privilege against self-incrimination with respect to the alleged liquor sales of March 4. The statements were produced by defendant’s counsel in connection with an in limine motion to prohibit their testimony. The prosecutor told them, according to their trial testimony on cross-examination, that if they did not waive their right to refuse to testify, he would, or probably would, prosecute them, but if they did testify, he would not prosecute them.

Defendant’s attorney attempted at trial to inquire of McCubbins and Cravens whether they wished to refuse to testify on self-incrimination grounds, but the trial judge denied his request. Defendant’s attorney did not claim to represent any of the three. Each of the three witnesses went on to testify at the trial.

The privilege against self-incrimination is a personal right which must be affirmatively claimed by the witness himself. State v. Foster, 349 S.W.2d 922, 925 (Mo.1961); State v. Malone, 301 S.W.2d 750, 757 (Mo.1957).

The cases upon which defendant relies are inapposite. State v. McGautha, 617 S.W.2d 554 (Mo.App.1981), a case which, most importantly, involves defendant’s exercise of his own privilege against self-incrimination, contains dicta which supports our ruling here: “The privilege against self-incrimination is personal ... and may be waived ... by voluntary assumption to the witness stand_” Id. at 557. (citations omitted). In each of defendant’s other cited cases, the privilege was invoked by the judgment debtor himself during a judgment debtor examination. See State ex rel. Shapiro Realty & Investment Company v. Cloyd, 615 S.W.2d 41 (Mo. banc 1981); State ex rel. Lee v. Cavanaugh, 419 S.W.2d 929 (Mo.App.1967).

McCubbins, Cravens, and Weimer voluntarily assumed the witness stand. Even if the prosecution’s actions in eliciting testimony from them were deemed coercive, defendant would still have no basis for complaint. State v. Phillips, 511 S.W.2d 841, 845 (Mo.1974); State v. Montjoy, 587 S.W.2d 624, 627 (Mo.App.1979). Of course, defendant could show coercion to affect the credibility of the witnesses.

Because defendant cannot pass the threshold of standing, her first point is denied.

II

In her second point, defendant contends that the trial court erred in giving verdict-directing instruction number 51 to the jury because there was insufficient evidence to support the finding of a sale under Section 311.310, RSMo 1978.2

The evidence adduced at trial shows that on March 4th Darrell Lee McCubbins drove to Powell’s Liquor Store near Salisbury. The record reveals the following:

BY MR. MIDYETT, Prosecutor, of Darrell Lee McCubbins:
[684]*684Q. And when you entered, who was there, if anyone?
A. Lucille.
Q. Lucille — are you referring to the Defendant, Lucille Ohmes?
A. Yes.
Q. And is she here in the courtroom today?
A. Yes, she is.
Q. Seated next to Mr. Wheeler?
A. Yes.
Q. Okay, and when you entered, what did you do?
A. I told her I needed a twelve-pack of Busch.
Q. And what, if anything, did she do?
A. She — well, I told her I had a ten-dollar bill. And she told me to go around back and pick it up from the back door.
Q. And what did you do in response to that?
A. I went out to my car, drove around to the back, and got out and went in the back door, picked up my beer and my change and walked out the door.

On cross-examination, defendant’s attorney elicited the following from McCubbins:

Q. So you picked up the beer and you put some money on the table — did you put some money on the table?
A. I laid the ten-dollar bill down and picked up five and a quarter.
Q. So you say you did put some money down on the table?
A.

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Bluebook (online)
675 S.W.2d 681, 1984 Mo. App. LEXIS 4800, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ohmes-moctapp-1984.