State v. White

857 S.W.2d 344, 1993 Mo. App. LEXIS 722, 1993 WL 158386
Missouri Court of Appeals·Decided May 18, 1993·No. Nos. 57545, 59745·Published·Cited by 3 cases

Opinion

KAROHL, Chief Judge.

This Court issued an opinion of this appeal on February 25, 1992, which decided all issues except defendant’s claim of a Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) issue. We transferred the appeal to the Supreme Court. After retransfer, we remanded the Batson issue for hearing. We now reissue the original opinion and affirm a ruling of the trial court that no Batson due process violation occurred.

A jury convicted defendant Ronald White, a/k/a Dallas Womack, a prior offender, on twenty-eight counts stemming from defendant’s escape from confinement at the St. Louis Medium Security Institution (city workhouse) and three days of transgressions against the residents of the city culminating in flight and eventual arrest in Indiana. He was charged and tried on thirty-three charges, thirty-one felonies and two misdemeanors. Thirty counts were submitted to the jury. The jury found defendant not guilty on Count XVIII, sodomy, and Count XIX, armed criminal action associated with the sodomy. The jury found defendant guilty of escape from confinement (1 count), robbery first degree (2 counts), armed criminal action (10 counts), kidnapping (3 counts), attempted robbery first degree (1 count), burglary first degree (1 count), forcible rape (4 [346]*346counts), forcible sodomy (1 count), felonious restraint (3 counts), and stealing under $150 (2 counts). The court sentenced defendant as a class X offender to a total of 777 years, each sentence consecutive to all others, to run consecutive to a previous federal sentence of forty years.

On direct appeal defendant alleges the trial court erred in: (1) entering a judgment of conviction on Count IV, kidnapping, because the evidence was insufficient to support the conviction; (2) overruling his motion to sever; (3) overruling his Batson challenge; and (4) imposing consecutive sentences on sex crimes based upon an incorrect interpretation of § 558.026.1 RSMo 1986. Defendant also appeals from the denial of his Rule 29.15 motion for post conviction relief. However, defendant did not brief any issues relating to the motion. Accordingly, we deem it abandoned. State v. Gillispie, 790 S.W.2d 519, 520 (Mo.App.1990).

Defendant contests the sufficiency of the evidence only as it relates to Count IV, kidnapping of victim Marvin Crawford. The state’s evidence as to all other counts is strong. It consists of testimony of victims, witnesses, police officers, an FBI agent and medical personnel as well as medical, fingerprint and physical evidence, and a partial statement of confession by defendant. Other than intent, each element of every other count was proven directly by at least one source.

As to the kidnapping of Marvin Crawford, we view the evidence and all reasonable inferences therefrom in the light most favorable to the verdict and disregard all contrary evidence. State v. Livingston, 801 S.W.2d 344, 345 (Mo. banc 1990). The evidence established defendant approached Crawford on June 6, 1988, in Crawford’s backyard and offered Crawford twenty dollars to take him somewhere. Crawford agreed and chauffeured defendant to several places. When Crawford stopped his automobile at a stoplight at Grand and Lafayette Avenues, defendant pulled out a knife and held it against Crawford’s neck. Crawford testified defendant then said, “if I didn’t take him where he was going he was going to kill me.” Defendant wanted Crawford to go to Interstate 64/Highway 40. Crawford waited for the light to change, stepped on the gasoline pedal, and rammed into an apartment building. Defendant was trying to guide Crawford’s hands on the steering wheel and a struggle ensued as Crawford aimed toward the building. After the automobile hit the building, Crawford jumped out and defendant carried his girlfriend, who was also in the automobile, away down an alley.

The state charged defendant unlawfully removed Crawford without his consent from 3600 Lafayette, “for the purpose of facilitating flight after the commission of a felony, to wit: escape from custody of the city workhouse on June 6, 1988.”

The crime of kidnapping occurs when one unlawfully removes another person without consent from the place where that person is found and unlawfully confines that person without consent for a substantial period for the purpose of facilitating the commission of any felony or flight thereafter. Section 565.110.1(4), RSMo 1986. State v. Hornbuckle, 769 S.W.2d 89, 98 (Mo. banc 1989).

Defendant argues asportation did not occur because Crawford immediately after the knife was drawn “stepped on the gas and ran into a building.” Defendant, by words and actions, took control of Crawford and caused movement of Crawford from the intersection without Crawford’s consent. That the controlled movement was a short distance and to an unexpected destination is not tantamount to failure to prove movement. The state proved the elements of control and movement without consent for the purpose of flight. Section 565.110.1(4) RSMo 1986. The evidence was sufficient to support the conviction. Point denied.

Second, defendant alleges the court erred in overruling his motion for severance of the counts and for a separate trial with respect to each particular victim because:

THE OVERWHELMING NUMBER OF COUNTS, THIRTY-THREE (33), CONSIDERABLE VOLUME OF EVIDENCE AND COMPLEXITY OF THE [347]*347EVIDENCE NECESSARILY AFFECTED THE JURY’S DELIBERATIONS AND SUBSTANTIALLY PREJUDICED [DEFENDANT] AS DEMONSTRATED BY THE COMMENTS OF THE JUDGE AND JURORS MADE DURING VOIR DIRE AND IN THAT EVIDENCE OF [DEFENDANT’S] GUILT OF SOME OF THE OFFENSES PREJUDICED HIS RIGHT TO A FAIR TRIAL ON THE OTHER CHARGED OFFENSES.

In reviewing defendant’s severance claim, we look first to determine whether the offenses were properly joined in the amended information. If joinder was proper, we consider whether the trial court abused its discretion in not severing the offenses and trying them together in a single prosecution. State v. Sims, 764 S.W.2d 692, 696 (Mo.App.1988). This is proper even where defendant did not question proper joinder.

Under § 545.140(2) RSMo 1986 and Rule 23.05, joinder of two or more transactions that are connected or constitute parts of a common scheme or plan is proper. Here, defendant’s offenses were related to defendant’s plan to escape from the city workhouse and flee from the city. The result was preconceived and each offense committed by defendant was consistent with and in furtherance of the plan. See State v. Simmons, 815 S.W.2d 426, 428 (Mo. banc 1991). Therefore, we find joinder of the offenses at trial was proper. Was the denial of severance an abuse of discretion?

In order for defendant to prevail on his motion to sever, there must be a particularized showing of substantial prejudice, § 545.885.2 RSMo Cum.Supp.1991, and an abuse by the court of its discretion, State v. Hughes, 787 S.W.2d 802, 804 (Mo.App.1990). See also Rule 24.07.

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State v. White, 857 S.W.2d 344, 1993 Mo. App. LEXIS 722, 1993 WL 158386 (Mo. Ct. App. 1993).

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