State v. Vinson

833 S.W.2d 399, 1992 Mo. App. LEXIS 958, 1992 WL 109458
CourtMissouri Court of Appeals
DecidedMay 26, 1992
DocketNos. 57670, 60124
StatusPublished
Cited by10 cases

This text of 833 S.W.2d 399 (State v. Vinson) 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. Vinson, 833 S.W.2d 399, 1992 Mo. App. LEXIS 958, 1992 WL 109458 (Mo. Ct. App. 1992).

Opinion

AHRENS, Judge.

Defendant, Ivan Vinson, appeals from a conviction of three counts of first-degree robbery in violation of § 569.020 RSMo 1986. Defendant also appeals from the denial of his motion for post-conviction relief after an evidentiary hearing. Defendant was sentenced as a prior and persistent offender to three consecutive terms of thirty years’ imprisonment. We affirm.

The evidence adduced at trial established the following facts. On September 4, 1986, Claudia and Stuart Cofman attended a performance at the Fox Theatre, located on Grand Avenue in the City of St. Louis. The Cofmans left the theatre and returned to their parked car; Mrs. Cofman entered. [402]*402As Mr. Cofman began to enter the car on the driver’s side, he was approached by a man who demanded the Cofmans’ money and jewelry. The man reached across Mr. Cofman and forcibly removed Mrs. Cof-man’s necklace and rings. The man and Mr. Cofman exited the car, and the man pulled a gun on a rope from the pocket of his pants. The gun discharged, and the bullet struck the ground near Mr. Cof-man’s foot. The man demanded Mr. Cof-man’s wallet, and Mr. Cofman gave him the cash he had in the pocket of his pants. The man ran away down the street, and Mr. Cofman contacted the police. Roughly two months later, the Cofmans viewed an array of police photographs and identified defendant as the man who robbed them. The Cofmans also identified defendant at trial.

On October 9, 1986, Richard and Hor-tense McGhee were robbed while walking home from the Pine Lounge, located on North Yandeventer in the City of St. Louis. During the incident, a young man approached Mr. McGhee from behind, placed a sharp object against his back, and threatened to kill him. The man removed a wallet from Mr. McGhee’s back pocket, threw it down a sewer, and ran away. After viewing photographs and a line-up, Mr. McGhee identified defendant as the robber. Mr. McGhee testified at trial that he was “pretty sure” defendant was the man who robbed him.

Shortly after midnight on November 1, 1986, Larry Thompson, Dwight Snelson, Tracy Barry, and Debra Turner stopped at the Naugle’s restaurant on South Grand in the City of St. Louis. Barry and Turner placed an order and returned to the car to eat. Thompson and Snelson were standing approximately twenty feet from the car when a man approached them, drew a gun from his pants, and said, “We are going for a ride.” The man took Thompson by the arm and led him to the car. Barry and Turner exited the vehicle after Thompson ordered them to do so. Thompson gave the man his car keys, and the man drove away. Thompson and Snelson identified defendant at a police lineup and at trial. Barry and Turner did not view a lineup, but identified defendant at trial as the man who stole Thompson’s car.

Defendant did not testify at trial, but presented the testimony of three alibi witnesses. Sandra and Eddie Edwards testified that defendant was employed as a salesperson for their company, EDE Enterprises, in September and October, 1986. Mrs. Edwards produced company sales receipts indicating defendant made door-to-door sales in Texas and California on the dates of the McGhee and Thompson robberies. A third witness, Albert Davis, testified that defendant was at his house on September 4, 1986, the date of the Cofman robberies.

The jury convicted defendant of three counts of first-degree robbery for the Cof-man and Thompson robberies, but acquitted him of the second-degree robbery of Mr. and Mrs. McGhee. Defendant filed a Rule 29.15 motion to vacate sentence and judgment, which was denied after an evi-dentiary hearing.

In eight points, defendant contends the trial court erred in (1) overruling his motion for judgment of acquittal with regard to the Thompson robbery, because the state failed to prove it was defendant who committed the robbery; (2) overruling his motion to sever offenses, because joinder was improper under Rule 23.05; (3) failing to grant a mistrial after a state witness’ emotional outburst; (4) overruling his motion to suppress the identifications of defendant made by certain state witnesses, because the identifications were based on an imper-missibly suggestive lineup; (5) failing to declare a mistrial, sua sponte, after the prosecutor in closing argument personalized the case and allegedly referred to defendant’s failure to testify; (6) submitting Instruction 4, MAI-CR 3d 302.04 [January 1, 1987]; (7) denying his Rule 29.15 motion after an evidentiary hearing; and (8) denying his motion to quash the jury panel. We consider each point in turn.

In point one, defendant contends the trial court erred in overruling his motion for judgment of acquittal with regard to the Thompson robbery. In reviewing this point, we view the evidence and all reason[403]*403able inferences therefrom in a light most favorable to the verdict, disregarding all contrary evidence and inferences. State v. Jordan, 793 S.W.2d 905, 906-07 (Mo.App.1990).

Defendant urges us to review the testimony of the state’s witnesses, in that it is “opposed to known physical facts” and “so inherently impossible or so opposed to all reasonable probability as to be manifestly false.” See State v. Gregory, 339 Mo. 133, 96 S.W.2d 47, 53 (1936); State v. Williams, 486 S.W.2d 201, 203 (Mo.1972). Defendant contends the identifications made at trial by two of the victims, Thompson and Snel-son, are so dissimilar that a reasonable juror should have doubted the witnesses’ credibility. Further, defendant argues that no testimony from any of the state’s witnesses can coexist with that of Sandra and Eddie Edwards, defendant’s alibi witnesses; defendant contends the “jury should have found the Edwards credible since there was no legitimate reason to disbelieve them.”

We find no merit in defendant’s argument. It is true that we are to determine whether there exists sufficient evidence from which reasonable persons could have found defendant guilty as charged. State v. Vitale, 801 S.W.2d 451, 456 (Mo.App.1990). However, in so doing, it is not our function to weigh evidence or determine the credibility of witnesses. State v. Buster, 753 S.W.2d 118, 119 (Mo.App.1988). “The reliability and credibility of a witness is for the jury to decide.” State v. Sumowski, 794 S.W.2d 643, 645 (Mo. banc 1990).

Here, the testimony of the state’s witnesses is not so contradictory, inconsistent, and self-destructive as to render it inadmissible. See State v. Ross, 680 S.W.2d 213, 216 (Mo.App.1984). Essentially, defendant argues the witnesses’ testimony is suspect because it contradicted that of his alibi witnesses. However, the jury was free to disbelieve the alibi testimony, Buster, 753 S.W.2d at 119, and we will not second-guess that determination here. There was sufficient evidence adduced at trial from which reasonable jurors could have found defendant guilty. Point one is denied.

In his second point, defendant contends the trial court erred in overruling his motion to sever the counts relating to the Cofman robberies from those relating to the McGhee and Thompson robberies, in that joinder was improper under Rule 23.-05. In reviewing defendant’s argument, we first consider whether the offenses were properly joined in the indictment; if joinder was proper, we then determine whether the trial court abused its discretion in refusing to sever the offenses and trying them together in a single prosecution. State v.

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Bluebook (online)
833 S.W.2d 399, 1992 Mo. App. LEXIS 958, 1992 WL 109458, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-vinson-moctapp-1992.