State v. Sprous

639 S.W.2d 576, 1982 Mo. LEXIS 484

• Court: Supreme Court of Missouri
• Decided: August 23, 1982
• Docket: 63233
• Status: Published

Opinions

RENDLEN, Judge.

Defendant appeals from a jury conviction of robbery in the first degree and assault in the first degree for which the trial court imposed consecutive sentences of life imprisonment under the dangerous offender provision of § 558.016, RSMo Supp.1980. Jurisdiction is in this Court pursuant to Mo.Const.Art. V, § 3.

Substantial evidence supports the verdict. Charles Cantwell, managing pharmacist of the United Health Center in Springfield, Missouri, and his employees, testified that on January 5,1981, at approximately 6:15 p. m., two men clothed in coveralls and stocking masks ran into the pharmacy announcing a holdup. The robbers, later identified as defendant and Kenny Heistand, told everyone to get on the floor and threatened to kill them if the police were called. Defendant, armed with an M — 1 carbine rifle, remained in the front of the store while Hei-stand went behind the pharmacy counter. After the employees were on the floor, the men demanded narcotics. Cantwell told them the narcotics were located in various places in the store and that he would get them. As Cantwell rose to his knees, Hei-stand began striking him about the shoulders and head, and told defendant that Cantwell wasn’t cooperating. Defendant shot Cantwell in the chest. Though wounded Cantwell found the drugs, and gave them to Heistand. The robbers ran from the store.

I.

Defendant first contends the trial court erred in submitting both robbery first degree and assault first degree to the jury, and sentencing him for both offenses, because the assault was committed during the course of the robbery. He argues that conviction for both crimes constitutes double jeopardy, multiplying his punishment for one offense, in that the force on which the assault was bottomed was the same force used to effect the robbery.

Defendant concedes the test for determining whether two offenses are “the same” for double jeopardy purposes has been established by Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). In Blockburger, the Court held that “[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” 284 U.S. at 304, 52 S.Ct. at 182. In Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), the doctrine of Block-burger has been applied as “a rule of statutory construction.” 445 U.S. at 691, 100 S.Ct. at 1438.

Defendant was charged in Count I with robbery in the first degree. The jury was required to find he stole narcotics by using physical force against Charles Cantwell for the purpose of forcing him to deliver up the narcotics, and, in the course thereof, defendant was armed with a deadly weapon. Count II charged assault in the first degree by knowingly causing serious physical injury to Charles Cantwell by shooting him by means of a deadly weapon.

The robbery charge required proof that defendant stole property while armed with a deadly weapon. The assault charge required proof that defendant knowingly caused serious physical injury to Cantwell by shooting him, and not simply that defendant employed physical force. Each offense requires proof of a fact the other does not, and conviction of both does not violate double jeopardy proscription. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); see State v. McCrary, 621 S.W.2d 266 (Mo.banc 1981). Moreover, the act of force constituting the assault was not that which served as an element of the robbery charge. See Thompson v. State, 606 S.W.2d 263 (Mo.App.1980). The contention is quite without merit.

II.

The next issue involves the admission of evidence concerning defendant’s jail escape and the fact that Kenny Heistand had escaped with defendant. Defendant claims, because he had admitted the escape, further evidence of that fact was irrelevant and prejudicial. Similarly, he claims the admission of evidence that Heistand escaped with him was irrelevant and prejudicial.

Defendant acknowledges that proof of his flight or escape from jail is generally admissible to show a consciousness of guilt, State v. Medley, 588 S.W.2d 55 (Mo.App.1979), and here it was relevant for that purpose. State v. Hughes, 596 S.W.2d 723 (Mo.banc 1980). The evidence of Hei-stand’s flight was part and parcel of the evidence establishing the fact of defendant’s escape. We find no error in the admission of this evidence.

The judgment is affirmed.

MORGAN, P. J., concurs. BARDGETT, J., concurs in part and dissents in part in separate opinion filed.