State v. Patterson

649 S.W.2d 925, 1983 Mo. App. LEXIS 3907
CourtMissouri Court of Appeals
DecidedFebruary 22, 1983
DocketNo. 45676
StatusPublished
Cited by4 cases

This text of 649 S.W.2d 925 (State v. Patterson) 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. Patterson, 649 S.W.2d 925, 1983 Mo. App. LEXIS 3907 (Mo. Ct. App. 1983).

Opinion

GAERTNER, Judge.

Appellant Jerry Patterson was convicted by a jury of second degree robbery, a violation of § 569.030, RSMo.1978. Pursuant to the conviction, appellant was sentenced under § 558.011.1(2), RSMo.Supp.1982, to imprisonment as a persistent offender for a period of ten years. In this appeal the appellant argues he was prejudiced in that (1) the trial court erred in submitting an inappropriate variant of MAI-CR2d 2.12; (2) the trial court erred in failing to submit MAI-CR2d 2.10; and (3) the trial court erred in failing to instruct the jury on the lesser included offenses of third degree assault and stealing.

Appellant does not challenge the sufficiency of the evidence. The jury reasonably could have found from the evidence that some time after 10:00 p.m. on November 27,1981, the victim, Donald Wilson, was at the Regent Bar in the City of St. Louis, when he met appellant and Boyd Hicks. Wilson talked with the two for about a half an hour, whereupon Hicks asked Wilson to give him a ride home. Wilson agreed.

The three went to Wilson’s automobile, a 1971 brown Chevrolet Impala, and got in. After Wilson had driven about four blocks Hicks began to beat Wilson in the face saying “Give me your money.” Wilson pulled over to the curb whereupon Hicks got out of the car, walked around to the driver’s side, opened Wilson’s door and continued to beat Wilson in the face demanding money. Wilson told Hicks that he only had some change. Hicks ordered Wilson “Give it to Fred,” referring to appellant.

Wilson took the change out of his pocket, amounting to about $3.00, and gave it to appellant who “cupped” his hands to receive it. Hicks then told appellant, “He’s got some bills. Search him.” Appellant reached into Wilson’s back pocket but found only a comb. Hicks then ordered Wilson to “Give me your wallet” and to give his watch to the appellant, who took it.

At all times during the incident appellant was sitting next to Wilson in the car. Appellant never threatened Wilson or touched him in any way except to look for “some bills.” No weapons were used by Hicks or appellant, nor was their imminent use threatened.

Finally, Hicks said to appellant, “You know what we’re going to have to do with him.” Appellant responded, “Let him go home.” With that statement, appellant opened his car door and let Wilson out. Hicks told Wilson to keep on walking and not to look back. Wilson walked about four blocks and then stopped in a bar to call the police. Within minutes the police located Wilson’s car with Boyd driving and appellant as a passenger. Appellant and Boyd were arrested. Several dollars of change were in the possession of appellant.

Appellant testified in his own behalf that the altercation between Hicks and Wilson was a result of Hicks’ belief that Wilson had paid undue attention to Hicks’ wife. Appellant denied that any money or property was demanded of or taken from Wilson.

The first point asserted by appellant is illustrative of the quagmire in which MAI-CR2d instructions were in danger of becoming mired. Appellant correctly points out that the trial court selected from six possible variants of MAI-CR2d 2.12, Form 2, which is to be used “[wjhere the defendant was an inactive participant and there is no evidence that he was an active participant.” [927]*927Notes on Use, MAI-CR2d 2.12, Order of Supreme Court, April 14, 1981.1

Appellant contends that since there was evidence that he was an active participant, but also his own testimony that he was not, the court should have selected variant four, “[w]here the defendant was one of two or more active participants but there is also evidence that the defendant was only an inactive participant.” Appellant argues that this deviation is error under Supreme Court Rule 28.02 and that the prejudicial effect of this deviation is clearly demonstrated, he further asseverates, because “it allowed the jury to return a verdict by a finding that appellant merely ‘aided’ in the commission of the offense rather than ‘acted’ with the purpose of committing said offense.”2

We agree with appellant’s contention that variant two of MAI-CR2d was not the appropriate paragraph under the evidence in this case. Contrary to the Notes on Use directive for the use of variant two, there was evidence that defendant was an active participant. The Notes on Use of the April 14, 1981 Order define active participant as “any person who engages in conduct, either by act or omission, which is an essential element of the crime.” The essential elements of robbery in the second degree are two, stealing and force. § 569.-030, RSMo.1978. Here, while there is no evidence of the use of force by appellant, there is ample proof that he took money and property delivered by the victim as a result of the force used by Hicks. Therefore, appellant engaged in conduct constituting an essential element of the crime. Also contrary to the directives for the use of variant two, there was no evidence that appellant was only an inactive participant in a robbery. Under the evidence, he was either an active participant by reason of the taking of the property, or the only crime committed was Hicks’ assault upon Wilson.

We are constrained by Supreme Court Rule 28.02 to hold this use of the inappropriate variant of MAI-CR2d 2.12 to be error. However, Rule 28.02 also provides a lifeline from the quagmire — the judicial determination of the prejudicial effect of such error. Perhaps legal scholars and academicians can detect a fine point of distinction between “during the commission of such offense and with the purpose of furthering its commission, the defendant aided such other person” and “in the commission of such offense the defendant acted with such other person with the purpose of committing that offense.” We do not believe that such legal niceties, if any, would be either discernible nor meaningful to jur[928]*928ors untrained in the law. We find no prejudice to the appellant herein could have resulted from the use of variant two of MAI-CR2d 2.12. To hold otherwise would give credence to the not always facetious bromide “instructions are written not for the ears of the jurors but for the eyes of the appellate judges.”

Furthermore, in paragraph First of Instruction 6, the jury was required to find that appellant, with another, stole property. Paragraph Second required the finding that the other person used physical force for the purpose of compelling delivery of the property and paragraph Third required the finding that defendant aided the other person for the purpose of committing the crime. Thus, the jury was properly instructed that even though the appellant did not participate in the assault, the assaultive conduct of Hicks was attributable to appellant if he participated in part of the criminal activity for the purpose of committing the crime. Within the constraints imposed by pattern instructions it would be difficult to conceive of a more accurate way to state the issues or a more appropriate way to conform to the evidence. Despite deviations from the convoluted directives of the Notes on Use, Instruction 6 was in no way prejudicial to appellant.

Appellant next complains of the failure of the trial court to give MAI-CR2d 2.10. It should be noted that as a part of the April 14, 1981 Order, MAI-CR2d 2.10 was withdrawn so that the “new” MAI-CR2d 2.12 mandated by that Order was to be given without 2.10. In the February 16, 1982 Order, 2.10 and the old 2.12 were reinstated.

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Bluebook (online)
649 S.W.2d 925, 1983 Mo. App. LEXIS 3907, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-patterson-moctapp-1983.