State v. Talkington

858 S.W.2d 802, 1993 Mo. App. LEXIS 1202, 1993 WL 292522
CourtMissouri Court of Appeals
DecidedAugust 2, 1993
DocketNos. 17727, 18288
StatusPublished
Cited by4 cases

This text of 858 S.W.2d 802 (State v. Talkington) 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. Talkington, 858 S.W.2d 802, 1993 Mo. App. LEXIS 1202, 1993 WL 292522 (Mo. Ct. App. 1993).

Opinion

SHRUM, Judge.

The defendant was found guilty by a jury of first degree robbery and armed criminal action and sentenced by the court as a prior and persistent offender to concurrent terms of imprisonment of 18 and 10 years, respectively. He appeals in Case No. 17727.

The defendant sought postconviction relief under Rule 29.15. After an evidentiary hearing, the motion court denied relief, and the defendant appeals in Case No. 18388.

The appeals are consolidated for our review. We affirm the judgment in each case.

CASE NO. 17727

Facts

We briefly recite facts that support the conviction and are relevant to the defendant’s first point on appeal.

At the time of the incident, the victim, Beatrice Perkins, was living alone about two miles north of Catron, in rural Stod-dard County. At about 12:30 a.m., January 18, 1990, the victim awakened to discover her bedroom ceiling light was on and the defendant was standing in the bedroom holding a crowbar in his hand. The defendant told the victim she would be “all right” and asked her where her money, guns, and jewelry were.1

The victim sat up on the side of the bed and put on her housecoat that had been on a bedside chair. She “felt something” on her neck that she discovered was blood and then noticed there was blood “all over the floor by my bed."2 She used a paper towel from the pocket of her housecoat in an attempt to stop her bleeding. The defendant, who was rummaging through dresser drawers, was aware that the victim was bleeding.

When the paper towel became saturated, the victim told the defendant she needed to go to the bathroom to get a washcloth. He told her to stay on the bed, but she “just pushed behind him” and went to the bathroom. The defendant followed her and struck the plywood wall “close to the door”3 with the crowbar knocking a hole in the wall.

[804]*804After the victim obtained a washcloth, the defendant “insisted” she return to the bedroom and sit on the bed. She complied. He resumed his search through the victim’s drawers and closets, still holding the crowbar.

When the washcloth became saturated with blood, the victim told the defendant she was going to the bathroom to rinse it. When he did not follow her, she left the house through a back door, in her words, “running for my life.” As she was escaping, she heard the defendant call to someone in another part of the house, “She’s outside. Catch her at the side of the house.”

The victim ran to the barn with the defendant in pursuit. The defendant chased the victim around the barn, and then the victim ran into a field where she hid by lying in the mud behind some milo stalks. She heard the defendant call to someone to “bring the truck and back it in.” She remained hidden in the field until she saw the truck depart. Then she walked to the home of neighbors who drove her to a hospital in Sikeston where she received five stitches to close a cut on her cheek.

When she returned home she discovered the defendant’s crowbar on the dresser in her bedroom and that a rifle, a handgun, and money were missing.

Investigation led to the arrest of the defendant who was charged with first degree robbery and armed criminal action.

The jury found the defendant guilty of both counts. Having found the defendant to be a prior and persistent offender, the court assessed punishment.

Discussion and Decision

In his first point on appeal, the defendant challenges the sufficiency of the evidence to support the verdict on the robbery count. We consider the evidence and all inferences reasonably drawn therefrom in the light most favorable to the verdict and disregard all contrary evidence and inferences. The test is whether the evidence, so viewed, was sufficient to make a submissible ease from which rational jurors could have found beyond a reasonable doubt that the defendant was guilty. State v. Keeler, 856 S.W.2d 928, 930 (Mo.App.S.D.1993).

The state has the burden of proving “each and every element” of a criminal offense. Keeler, 856 S.W.2d at 930. The elements of robbery in the first degree, a class A felony, are found in § 569.020,4 where the crime is defined as follows:

1. A person commits the crime of robbery in the first degree when he forcibly steals property and in the course thereof he, or another participant in the crime,
(1) Causes serious physical injury to any person; or
(2) Is armed with a deadly weapon; or
(3) Uses or threatens the immediate use of a dangerous instrument against any person; or
(4) Displays or threatens the use of what appears to be a deadly weapon or dangerous instrument.

In his brief on appeal the defendant concedes he stole the victim’s property and he does not challenge the conclusion that, at a minimum, his display of a dangerous instrument satisfied § 569.020.1(4). He limits his complaint to his contention that the state presented no evidence that his theft of the victim’s property was “forcibly” accomplished as required by the introductory portion of § 569.020.1.

The term forcibly steals as used in the first-degree and second-degree5 robbery statutes is defined in pertinent part in § 569.010 as follows:

(1) [A] person “forcibly steals”, and thereby commits robbery, when, in the [805]*805course of stealing,6 as defined in section 570.030, RSMo, he uses or threatens the immediate use of physical force upon another person for the purpose of:
(a) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking....7

In State v. Duggar, 710 S.W.2d 921 (Mo.App.1986), this court observed that “the force necessary to constitute robbery may be constructive as well as actual, and may consist in the intimidation of the victim, or putting him in fear.” Id. at 922. The Duggar court affirmed the second degree robbery conviction of a defendant who told a convenience store clerk he wanted all the money in the cash register and confirmed for the clerk that he “was serious.” Id. at 921-22. The defendant Duggar “did not offer physical violence, did not display any weapon and made no threats.” Id. at 922. The clerk said he “felt threatened.” Id.

In State v. Clark, 790 S.W.2d 495 (Mo.App.1990), the court upheld the second degree robbery conviction of a defendant who handed a fast food restaurant employee a note “to the effect that it was a hold-up and to give him the money out of the register.” Id. at 495-96. The defendant did not display a weapon, did not exert any force on the employee, and did not threaten her, although she said she “thought the note was a threat.” Id. at 496.

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Related

State v. McGee
284 S.W.3d 690 (Missouri Court of Appeals, 2009)
State v. Young
172 S.W.3d 494 (Missouri Court of Appeals, 2005)
State v. Saucy
164 S.W.3d 523 (Missouri Court of Appeals, 2005)
State v. Talkington
25 S.W.3d 657 (Missouri Court of Appeals, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
858 S.W.2d 802, 1993 Mo. App. LEXIS 1202, 1993 WL 292522, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-talkington-moctapp-1993.