*1 100- Missouri, Respondent,
STATE JONES, Floyd Eugene Justin Appellant. No. SC94924 Missouri, Court Supreme en banc. January Opinion issued
ruling his 'motion a continuance. The judgment is affirmed.
Background trial supported
The' evidence at the fol- lowing findings beyond and inferences 10, 2010, reasonable February doubt. On C.H. to her home grocery returned from shopping shortly p.m. after She drove her driveway, parked, vehicle went inside home the front door help unloading to ask gro- *4 outside, ceries. C.H. then walked back opened door, garage the automatic and ear backed her into the garage. attached got car, She of grabbed bags out the a few groceries, of and walked toward the interi- garage door between the and house. C.H, There, pressed to keypad lower the and, garage began door as the door to lower, go through to doorway turned represented by Buffa- Jones was Samuel and into her house. Before she could en- public loe of the defender’s in Co- office home, however, ter her C.H. heard the lumbia garage stop go and up, door start back programmed which if it was to do represented by Flast- Rachel triggered. threshold sensors were C.H. general’s attorney er of the Jef- office in garage turned toward the door when 'she City ferson go heard it up. start back and saw Jones Wilson, Judge coming garage holding into the Paul C. and out a black both hands. ran into C.H. appeals judgment Justin of Jones house, slamming her, the door behind Court, County Louis Circuit en- St. bedroom, and went into the'nearest where trial, of, convicting tered after a him she activated her home alarm and called for, and sentencing him one count of bur- ¡ police. glary degree in the first and associated C,H.’s action, sons, M.H., count of criminal count "of armed one one robbery degree attempted doing' the first kitchen dishes when this occurred. count Hearing and an associated armed the interior door to the action, shut, again, one count assault in third open, open slam M.H. degree, count of resisting and one arrest turned toward that saw door and Jones appeal, for a felony. On pointing gun Jones claims at him. Jones told M.H. to (1) and, did, by: overruling his trial court erred come to him over Jones judgment acquittal motion for put repeatedly on the M.H. in a “headlock” and charge “dope, money, criminal action associated and weed.’’ demanded conviction; (2) with his overrul- When MiH. Jones he did not told ing judgment acquittal his motion for on any, pushed Jones M.H. toward back (3) resisting charge; over- arrest door. M.H. told Jones he want did ,so picked showup,” meaning a “victim she push him
leave, began Jones house, him from his that the up told interior the M.H. door the house toward they found someone that way, phone police had Jones’ cell On the garage. him, and drove to where try to like M.H. go of M.H. to Jones let rang. sees located. When Officer Mum- M.H. phone, grabbed Jones his answer Jones M.H. if he seen to ford effort asked gun. abandoned his Jones as the before, indi- began strug- identified Jones M.H. phone his cell answer just assaulted him in his gun. who had control vidual regain M.H. to gle with jaw tried home. bit M.H.’s When ' his M.H. was eyes, forced gouge out charged count of with one Jones was gun. Having on Jones’ relinquish hold degree first and an associ- burglary in the gun, regained Jones pointed control action, of armed criminal one ated count out for a and then fled it at moment M.H. robbery in-the first attempted count firing a home door without the back separate count of degree with a associated shortly police thereaf- shot. arrived action, count of one assault ter, M.H. in the di- pointed them re- degree, and one count of third rection had fled. respect to felony. for a sisting arrest With first-degree burglary charge, state patrol Virgil Avery was Officer “knowingly entered un- alleged he re- that Jones these occurred. When time crimes *5 ... structure dispatch regarding lawfully in an incident ceived the inhabitable ..., for the of possessed by he description perpetrator, [C.H.] and a Robbery Degree to in the First up area set contain- responded therein, inhabitable and while such Avery drove a subdivi- ment. Officer present in such inhab- directly structure there sion that was located behind M.H.], persons separated [C.H. from that itable structure and C.H.’s home and participants in the crime.” only by fence. Within sec- who a wood were house vehicle, criminal action exiting Avery his The armed of Officer associated onds from of that committed the running alleged the direction count Jones Jones saw “by, first-degree burglary descrip- matched the of house. Jones C.H.’s knowing Avery through, and assistance 'perpetrator tion of the Officer deadly Avery a weapon.” , and of With re- just received. Officer identified aid charge, the police spect resisting arrest himself as a officer and told Jones alleged at that Jones resisted ar- running. looked officer indictment stop Jones from away. Avery fleeing” rest an officer. “by but continued to run Officer chase, to flee. gave continued Jones trial, of state’s case At the close seconds, 15 Officer approximately After judgment acquittal. for Jones moved behind, caught placed Avery from, argued He there was insufficient evi- handcuffs, imme- him in and arrested him support charge dence diately robbery attempted in C.H.’s with the first- action associated Jiome, degree burglary charge because Jones, no he actually “used” the Avery After Officer detained Offi- evidence Lass, part- gun his into K-9 to effect C.H.’s cer Robert Dean ner, gun performed a from the he intimidate C.H. “trackback” “used” entry. also con- granting him location where Jones was arrested. > that there was insufficient evidencé track led to the'back door C.H.’s tended home. charge resisting Kathryn arrest support then performed Officer Mumford 2011). showing because there was evidence “The evidence all reasonable that he ran from the after the ar- officer inferences are therefrom viewed in the attempted. light occurred was trial verdict, rest most favorable disre court garding any overruled motion. evidence inferences con trary Belton, to the verdict.” State v. present Jones did not on evidence' 307, 2005). “This behalf, his own and the found him assessment, not an of whether the Court guilty all counts. Jones filed motion believes that the at trial evidence estab or, judgment fd'r acquittal in the alterna- ‘ (cid:127) guilt beyond lished a reasonable doubt but tive, trial, a new which the trial court whether, question light rather overruled. The trial court a judg- entered State, evidence most favorable to the ment and sentences consistent with the have, rational fact-finder found jury’s appeals, verdicts. Jones now essential beyond elements the crime V, jurisdiction Court has under article Miller, a reasonable doubt.” State v. section of the Missouri Constitution. In-re viewing Analysis sufficiency sup the evidence .conviction, porting appellate points Jones raises on appeal.1 three juror’ “does not a ‘super act as His first points challenge and second powers” veto “gives great deference to but sufficiency of , n trier of fact.” Id. conviction for Criminal connection with first-degree burglary II. Jones committed the conviction for resisting arrest. with the aid and assistance point Jones’ third claims that the trial “person A commits the crime by overruling court erred his motion for a burglary in degree the first if knowing continuance. ly unlawfully. enters ... a building or in I. of Review Standard *6 habitable purpose structure of when, reviewing a challenge therein, When committing a crime in evidence, the sufficiency of the effecting the stan or entry while in building or of dard review is “whether there is suffi inhabitable structure or in immediate cient evidence from therefrom,” which a flight 569.160,1,2 § reasonable juror “[tjhere might 'have found the present in the structure another guilty beyond a doubt.” person reasonable who is not a in participant Letica, (Mo. 157, v. 356 crime,” 569.160.1(3).3 § S.W.3d 166 banc person commits A appeal stated, 1.This originally was statutory briefed in the 2. otherwise all Unless refer- Missouri of ences are Appeals, Court to RSMo 2000. Eastern District. There, point Jones raised a claiming fourth building if a 3. Even enters or inhab- allowing that the trial court erred in Officer lawfully, may itable structure occur, still Avery testify log” the "call on Jones' provides 569.160.1 for two Section (that phone cell was taken from him at'the i.e., scenarios, mutually per- that a exclusive time of his arrest and to the search of which first-degree son commits burglary if he "en- consented) Jones showed three missed unlawfully knowingly ters or remains unlaw- calls p.m. between p.m. 11:11 and 11:12 fully building in a or inhabitable structure Jones did not points include this claim in his a crime there- Court, "Any relied on (cid:127) in this however. mate- 569.010(8) [Emphasis §See added.] in — " rial appeals included in the court of brief that (defining phrase unlawfully or re- "Enter is not included in the substitute brief is unlawfully” aban- main that "enters .mean or 83.08(b). doned." Rule upon premises remains in or when he or she 106 language he or she of the at issue.” Ivie v. action statute when
armed (Mo. Smith, 189, felony the laws this 202 under 439 banc “commits S.W.3d 2014) assis- with, through the by, Imports, or Inc. v. (quoting state Parktown Am., 670, or dangerous Inc., instrument tance, of a or aid Audi 278 S.W.3d 672 (internal § (Mo. 2009)) weapon.” 571.015.1. deadly quotation banc marks omitted). statutory “It is basic rule of that he point, 'argues In his first given be construction words should armed guilty cannot be plain ordinary meaning their whenev that he there was evidence because possible.” v. State ex rel. Jackson Do er gun a phys of the to overcome made “use” (Mo. lan, 472, 2013) banc garage order to ical obstacle enter Fulton, (quoting City Spradlin v. automatically door 1998)) (internal leg triggered his foot or opened when omitted). quotation marks garage. the threshold sensor suffi Nor, evidence argues, was the: argument places great Jones’ em jury to that he made cient find ignores phasis but all of “use” word gun to C.H. into of: his intimidate “use” legislature the other used words did not granting him because C.H. enacting section 571.015. “When inter until after he had see Jones with statute, give must preting - this Court garage. Be threshold crossed the every phrase or meaning to word only are the cause Jones contends these Moore, legislative enactment.”’ State can him by which state convict means criminal action in connection with armed statute reads: must burglary, he maintains he be a matter of law. The Court acquitted as [A]ny person any felony commits who argument holds that the rejects this with, by, under the laws of this state sufficient to Jones’ use, assistance, through the or aid of a for armed criminal action conviction deadly dangerous instrument burglary. with the first-degree connection guilty is also of the crime criminal action.... argument 571.015 reads section limits criminal action though it added). § (emphasis 571.015.1 These solely which the defen- to circumstances with, prepositions (by, three or through) dangerous instrument dant “uses prepositions the three nouns those deadly weapon to commit under (use, assistance, aid), modify demon- *7 of this is not how the laws this state.” But strate that 571.015.1 was section intended reads, construing the statute section broadly possible. as reach as Accord- narrowly, ignores so the other 571.015 ingly, provides statute that Jones is the legislature terms the chose to include in guilty of armed'criminal under this that'statute. statute in with if burglary connection the primary “This Court’s rule for jury of the the sufficient statutory interpretation give' beyond is one effect a reasonable of find doubt t.o legislative plain permutations: intent as following reflected the at least the nine so") (em- privileged purpose committing or not licensed of a do mains crime. added). result, though phasis language As a even a above and not This omitted con- enter, however, person may privileged analysis, be licensed or sidered in the Court’s be- burglary knowing charged he commits the not cause this how Jones was if— privilege longer or license exists—he re- convicted here. entry (3d for He committed this unlawful TIONAL DICTIONARY- by ed.1993). committing felony a purpose the of
the use of his gun. A person may walk'with the' “use” of a for entry cane, He committed this unlawful doing but not so necessarily does. by purpose committing felony the of a mean that the could not walk with- ' assistance gun. the of his token, out it.' By the given same the 571.015, context of section the noun “use” He this entry unlawful for not or suggest does mean weapon the purpose committing felony of necessary must have been commit the aid gun. of his crime or for the- that —but defendant’s He entry committed this unlawful for “use”-of the weapon crime' could not —the with committing felony' of purpose have occurred. use gun. of his Moreover, if of even the definition “use” entry He committed this for unlawful encompass did conduct purpose committing a felony of case, it is terms clear that the “assistance” assistance of his gun. reach “aid” even- further. “Aid” re- He for committed this unlawful entry help given,” fers “the and “assistance” purpose committing felony of given.” refers ‘The help Supplied the aid gun. of his 132. Neither of sug- these terms entry He committed this unlawful for gests provided by, that the- help through, purpose committing of a felony or with have must been essen- through use gun. of that, tial commission the crime or He entry committed this for unlawful but for that help, the crime purpose committing Instead, occurred. the terms “aid” and through the aid of his gun. suggest “assistance” the opposite. This He committed this unlawful construction is strengthened further a felony compelled by the fact that the nouns “aid” assistance gun. of his “assistance” as are included alterna- tives to the noun “use.” legislature did not define the “with,” “by,” “use,” words “through,” belaboring Accordingly, without “aid,” of, purposes permutations “assistance” for sec all nine applicability but, 571.015.1, tion 571.015 “the absence a statu sufficient evi- section definition, words, tory given beyond be their to find will dence reason- ordinary meaning plain derived able doubt that Jones committed first-de- Oliver, from the dictionary.” gree with-the assistance or aid of gun. C.H. testified that she saw Jones prepositions “by,” “through,” immediately and “with” after he crossed the threshold defined as garage. though are function words used to C.H. indi Even did not means, cate the agency, instrumentality precise see Jones at moment he something garage, else.4 “Use” means “the act crossed the threshold she *8 practice- or of something.” see Jones an later employing did instant and—at that already holding, gun WEBSTER’S THIRD NEW INTERNA- time—Jones (3d ed.1993). "By" "through 4. "by means means or NARY the 307 "With” means instru- of,” of,” mentality "through agency "by agency means of” or or the direct the use of.” Id. “through "Through” "by or the of.” at 2626. medium WEBSTER’S means means also "by agency THIRD NEW INTERNATIONAL of” or DICTIO- the use or of.” Id. at 2384. 108 weapon. only It it at pointing C.H. imminent attack with the hands and
out in both a result, requires was sufficient defendant commit evidence that the a the As “use, crossed or the “by, through, that Jones the crime as- find with” the sistance, or the or of a In weapon. of with connec- the aid” threshold aid regardless therefore, gun of charge whether tion burglary, of his with a of assistance plane garage’s the the require first broke section does not that the 571.015.1 foot gun, or knee.5 means forc- weapon with must been the entrance entry, indirectly or ing directly either argument, Jones cites In of his through might a intimidation. be Such appeals the from two decisions the term reasonable construction of “use” require'the prove state to that he claims statute, in the only if it term used were the weapon made “use” of the a that defendant just but “use” is one three alternatives (e.g., entry a barrier either overcome describing prohibited by conduct sec- the door) or open or a window break of the tion addition words 571.015.1. The entry granting be someone threaten the reach “assistance” and “aid” broaden can be convicted of fore the defendant statute to of the armed criminal action in with a criminal action connection help of' a weap- crime committed with the Hopkins, State v. 140 burglary. See on, that neces- merely those crimes (to (Mo.App.2004) be convicted use of sarily only from the resulted action connection with of armed criminal weapon. burglary, must show that the evidence defendant, the pry open knife to the used meaning plain The “assistance” or the explicitly victim door threaten the “aid,” in light when considered especially ; v. prior entry) Carpenter, State .to prepositions “by, the alternative (a 718, (Mo.App.2003) defen with,” that through, or make clear it with, burglary by, or not commit dant does legislature 571.015.1 to intended section aid, gun or of a assistance possible discourage reach as and to far as open shoots the door unless the defendant arming during from defendants themselves explicitly with the threatens victim by imposing commission felonies open victim gun compel separate punishment defendant’s incorrect, door).6 This is by assisted aided “ ready dangerous weapon. Any criminal action under “sec Armed to a access not require tion does other of section robs 571.015.1 571.015.1 construction actually attack or “aid” of 'threaten an words defendant “assistance” notes, (cid:127) though rejects properly, burglary). Obasogie 5. The dissent Even ele for,: burglary complete upon were Carpen- ments construction of section 571.015.1 garage. into the entry ter, See v similarly misconstrued the court stat- . (Mo. 1958). Pigques, 310 S.W.2d concluding must see by ute victim question here is whether made brandishing weapon defendant as he gun. assistance of his with aid herein, explained crosses the threshold. As prove sufficient he did. .was suggests nothing in section 571.015.1 that a unlawfully dwelling cannot enter State, Obasogie 6. See also a "aid” "assistance” (holding (Mo.App.2014) "there an it, actively brandishing nor is without implicit [the victim] threat to [defendant’s] any language support a statute to re- hand; display gun in his he did not actually quirement victim must see that the point need to to make her or "assistance” or explicit guilty defendant enter such threat” to be verbal found "aid,” connection with a *9 if, stop defining in “armed criminal ac- that a meaning knowing law enforcement n arrest, officer is an making or attempt- tion.” ing to lawfully or stop detain an. individ- Here, unlawfully entered C.H.’s Jones vehicle, ual or the person reasonably or gun' jury with a in hands. his law should know that a enforcement offi- reasonably gun could infer that “aided" arrest, is making cer or attempting an by bolstering confi- or “assisted” Jones lawfully lawfully stop or an indi- detain a garage dence enter that kfiéw vehicle, vidual or purpose pre- occupied.' might provided be venting effecting the officer from or giving “aid” “assistance” Jones both by arrest, detention, stop person: or ready means resis- overcome (1), arrest, stop Resists the or deten- tance and the that assurance mere tion of person by using such or threaten- gun prevent or presence de- ing the or physical use violence force such resistance first It ter instance. n by officer; or fleeing from such or matter does not such whether resistance (2) arrest, or stop Interferes with the occurs, anyone or might even whether who person by detention or using another actually offered such saw resistance violence, threatening use physical him cross the The jury threshold. reason- physical force or interference. ably infer that Jones crossed that ,a It is D class resist arrest for threshold with the or “assistance” “aid” , felony. .§ 575.150.5. . gun because the bolstered in making entry. the unlawful confidence prove To- that Jones committed Accordingly, the evidence was sufficient crime, the state needed to establish jury beyond for a to find (1) reasonable that or three elements: Jones knew that Jones crimi- doubt committed armed reasonably have known should that a law action in nal connection with the' first- making enforcement officer was an arrest burglary.7 degree attempting lawfully or stop detain him; (2) arrest, stop that he resisted this Reasonably III. Jones Should Have officer; fleeing or detention from that He Known Was Under Arrest. (3) so for he did In his point, second Jones claims from effecting the officer preventing was sufficient to arrest, Pierce, stop or detention. State v. resisting his conviction for arrest. d424, S.W.3 575.150.1, Section RSMo pro Supp.2010, Jones now the evidence was concedes vides: to prove Avery sufficient that Officer .was
A him for resisting attempting commits the crime of to arrest the crimes arrest, detention, interfering home,8 in C.H.’s and that Jones holding is pres- 7. This not in conflict with State side the boot.” 327. Unlike the Id. at case, Reynolds, therefore, ent in Reynolds had 1991), which held that intention to readily mere use a basis to infer knife was we.apon, enough without actual is not provided accessible it the defendant such that under the convict action stat- making entry. "aid or assistance” There, ute. found there was Court "no 8. When this case briefed the court of was Reynolds burgla- evidence that committed the argued appeals, point in his with, relied also ry by, use of the knife or on that insufficient evidence to deadly weapon" other because the defen- prove Avery attempting readily that Officer knife was dant’s accessible. Instead, stop throughout make an burglary, arrest when-he told defen- running.-In knife brief filed with this and "hooked his substitute dant’s sheaf in- *10 Accordingly, properly Chamberlin holds his ac Avery to avoid Officer fled from jury Court, for a only claims that evidence was sufficient this In this Jones tions. defendant, to knew to that had was insufficient find that know officer was at had reason to to know that he knew prove that reason present making arrest. to him. The Avery tempting was arrest Id. Officer to had no reason to that he case is similar Chamberlin because the Jones asserts to ar attempting com Avery gave in both a verbal know Officer was cases officers though the officer identified stop running him even to rest mand to the defendants officer, to police told Jones authority police as a offi himself their invoked as In (de running, gave Pierce, chase. and then stop at 434 cers. See 433 S.W.3d that, stead, argues (or Officer because Jones from arrest is not “immune fendant running” and arrest) Avery only “stop long said for as prosecution resisting arrest,”, it running, you under are “stop attempts to ar the officer he runs before ,the for to Jones believe him, was reasonable be sup a rule rest such nor stop statute”). to attempting language officer was—at of the ported most— investigation, not arr Jones detain In to those circum addition est.9 stances, the evidence this case showed necessary for the officer “It is not compelling even more rea that Jones had arrest,’ say, ‘you are under specifically to Avery at sons to know Officer officer the circumstances indicate when Immediately tempting a arrest. v. attempting an arrest.” State Cham burglary, the crimes after berlin, 615, (Mo.App.1994). 872 S.W.2d assault, robbery, attempted and armed Chamberlin, fled In the defendant .in home, action C.H.’s Jones' was him with an officer followed vehicle while running from scene of away those lights siren activated. emergency officer crimes when uniformed identified stopped his Id. defendant eventually The police as a officer and himself commanded officer then fled on foot. Id. The car and stop running. to A Jones defendant’s defen yelled his vehicle and at the exited flight “presence the crime scene and at appeals Id. court of stop.- dant are evidence consciousness therefrom indicated found that these circumstances guilt.” Clay, attempting an arrest that the officer was 1998); also State v. see pursue the though the officer did even Rodden, 728 S.W.2d. foot. Id. The court further 1987) (finding flight con shows a found that officer’s verbal com “[t]he guilt). sciousness authority mands the invocation of-his state, trooper attempt jury what as a were an entitled consider just knew what Jones had done effect the arrest the defendant.” Jones Court, however, argument, probable drops arrest him at the time cause to 83.08(b). and, most, and the claim Rule only abandoned. he did have had expressly Jones now that the evi- concedes suspicion stop Jones and make reasonable find dence was sufficient for the challenge inquiries. But Jones cannot further intending Avery stop him Officer ordered as a defense to lawfulness arrest just com- arrest him for felonies he had 575,150.4. charge resisting § Be- arrest. mitted. was, Avery concedes that Officér cause Jones him, fact, attempting arrest relevant times, argument point ap- 9. At on this the, point is or had reason to whether knew pears challenge legality arrest in of his occurring. Avery this is claims Officer could not have know that what
HI tion deciding judgment acquittal whether Jones had reason on the *11 charge resisting at- .Avery Officer was to know whether arrest. him for tempting to arrest felonies. those IV. Jones’ Motion for Continuance 317, Whitley, State v. 183 S.W. 320-21
See Properly Was Overruled (Mo.1916) (“But being guilty, knowing and In his point, third Jones claims (as guilt his inference is from thereof trial court abused its by discretion verdict), jury’s duty by law was overruling last-minute motion for a arrest, on him to incumbent submit this continuance on the of trial. eve The deci refused, taking if he penalty, under to grant sion whether for a motion continu away his for act tried defense when is ance committed to the discretion sound arrest.”). resisting him done while court,' and;' of the trial on appeal, this Not for only was the evidence sufficient Court’s review is limited whether the jury that Jones had find knew he trial court abused that discretion. State v. burglary, attempted robbery, 464, Griffin, 848 468 assault, Jones also not con- and but does 1993). “Reversal is only'upon warranted a for test his convictions those Be- crimes. very strong showing that the court abused e “traekbaek,” cause of also its discretion and prejudic resulted.” that, jury sufficient for the was find Edwards, 511, State v. 116 S.W.3d fleeing after these crimes and party “[T]he requesting house, ran out back C.H.’s Jones the continuance bear[s] the burden of directly Avery’s into Officer view. When School, showing prejudice.” State v. this officer identified himself told (Mo. banc 1991). running, to stop Jones Jones Continued to for Jones moved a continuance on Finally, persuasively, flee. and most morning of day on trial which was Avery to flee Officer continued even begin. set delay He claimed was began chasing after that officer him. Giv- (1) necessary for defense counsel: lo this, all of was a basis en sufficient (2) cate a potential defense witness and
for the to infer Jones rea- knew—or conduct forensic examination Jones’ sonably should have known—that was he phone present cell expert testimony being just arrested for crimes he had to the examination.11 results committed.10 argument trial court heard Jones’ on mo reasons, For foregoing trial morning tion on the first day by overruling court did not mo- Noting err trial. its concerns the case argument support 10. In stop of his that he did not that he ordered Jones to and chased after arrest, know he was under on intending Jones relies him to arrest him the felonies for Hunter, (Mo. State v. committed, just had Jones concedes this Hunter, App.2005). the defendant was a In Hunter, therefore, point. distinguishable passenger pickup. When in a the driver ran present from the case and not does light, police a red officer behind argument. Jones' lights patrol him activated the on car pursued Though the vehicle. had driver continuance, 11. In motion his. also being stopped, reason to know he Hunter argued grant delay that the court should passenger holds that the had no reason to give investigate defense counsel time to more being know he was arrested for a unre Jones’ mental health. Jones has abandoned just lated to the Id. traffic offense committed. however, appeal, claim and it importantly, More Hunter notes that the offi the Court. before cer never testified he intended to arrest Here, Avery Officer defendant. testified alleged crimes old, responsible years four that neither these confer- motion pretrial explain raised at the in this case.” The does issues week, that Jones al- came prior light how the witness’ name ence the. sought continu- diligence, and received ready why, in the exercise due de- occasions, the trial previous four ances on not have her counsel could identified fense the motion. Jones raised overruled In testimony her earlier. ad- secured trial, in his new these issues motion dition, testimony to the wit- ascribed *12 review, for and appellate them preserving not have been aid ness would material court that motion. overruled the trial she Whether saw to Jones’ defense. she thinks man in the area whom resem- a con motions for Last-minute material, nor it is would bled Jones not reviewing not In the are tinuance favored. impeach testimony to the have served Court, motion, this of such has overruling a. only that officers who that the testified stated: (i.e., the they one else witness saw 24.10, an for application Under Rule person) vicinity. in this third the of a to absence due the wit- continuance testify not could not officers did have —and (1) materiality of must show: the ness or was not be- present was testified —who sought be the evidence to obtained sight hearing. yond their appli- diligence part on the due witness; (2) the name to obtain cant speculation witness’ that this third (3) witness; and residence Jones, person responsi- not “is the person, prove will that facts that .witness alleged in this ble' for the crimes case” person no other who there is of no assistance to Jones’ because defense to such present testify at trial to been speculation not have ad- such been (4) facts; application was made missible, and failed to state the motion of obtain- good faith for in knowledge that she had the firsthand impartial fair and trial. ing a party’s guilt third and Jones’ innocence Salter, testimony necessary State v. to raise her above .705, grant Rousan, deciding “In whether State v. speculation. mere See entitled, continuance, 1998) (“To trial admissible, meets application whether the per- that- another consider be evidence If the trial of this rule.” Id. requirements opportunity son had motive com- an that does application court finds not mitting for which a the crime rule, decision comply with the the court’s prove being tried tend that must an abuse of deny the continuance is not directly some act other crime.”). discretion. connecting him with the Based description lack of sparse on the ex- did not meet the Jones’ written motion purported planation or foundation respect Rule requirements 24.10 the trial court did err merely testimony! The motion stated the witness. on ground motion overruling neighborhood and that .Jones’ that she lived that it failed to witness would saw establish the time of the incident “at the she say anything able to that would be man “be African-American with dreadlocks any man is waiting defense[.]”12 for a bus that this benefit testimony directly regarding provided-greater the officers’ mean- 12. Jones detail issue, testimony potential in his motion for ingful witness’ new nor did these details (cid:127) trial, but the new information new none of that the could link demonstrate witness testimony her showed that would contradict
H3 motion for a Finally, continuance Jones claims that the trial Jones’ necessary delay also that a court abused its in overruling claimed discretion motion for defense to obtain a counsel forensic exami continuance because de fense counsel had phone appearance nation of his entered an cell and secure an only trial, three months before expert log” that because testify the “call about out country counsel for a month which Avery Officer testified failed to show during period, and because counsel lasting a call Jones had taken several was preparing other defendants’ cases “at or minutes near” the time the bur while also preparing for Jones’ trial. glary. allege But fails the motion These arguments not presented were diligence in attempt counsel exercised due Jones’ written motion for continuance ing prior to obtain this to the first for a motion trial. According new day of alleged only trial. The motion ly, they Court, are properly before this it would take days counsel secure 78.07(a); Davis, see Rule State v. evidence,- but it does not establish that *13 768, 2011) (issue previously counsel lacked sufficient or time raised the first on appeal time is not information seek in time this evidence preserved review), for appellate and Jones phone for trial. The fact that it was'Jones’ plain not does seek error review under (and, therefore, that Jones was the best Rule 30.20. phone source of the or might role the defense) might in his play suggests not if Even arguments Jones’ last that-there was sufficient time and informa Court, properly were they before this pursue tion to this if counsel justify would not He not reversal. does it helpful. appointed deemed Counsel claim counsel’s absence from the country trial,13 approximately days before or representation or of other clients af long days twice as allegedly -the 45 trial, fected the outcome of the nor does phone prepare test the needed and how;, any explanation offer as to expert. argu Jones’ motion Because and (or, combined) of these facts all them ment to comply failed require with the above, prejudiced him. As actually noted 24.10(a) ment in Rule that counsel show had time ample counsel information diligence, due' the trial court did not abuse examination of secure Jones’ cell phone, Jones, its in overruling discretion Jones’ motion not claim does that defense Christeson, for a continuance. See State v. counsel’s or other travels commitments 2001) (trial op.counsel’s had.any effect to se ability court not does abuse its discretion in over potential testimony cure a even witness’ ruling a motion .for a continuance assuming when it would have been admissible. adequate prepare).14 counsel had Accordingly, time if even claim been party just third to the crime phone not if it turned out as Jones —even neighborhood. hoped materially. aid his defense Ev- —would idence phone answered a call last- appointed 13. Jone’s first counsel was in ing several minutes "at or near” the time of shortly charged. he after This counsel the crime does not contradict M.H.'s testimo- was allowed to withdraw another counsel ny during that Jones strug- missed a call their appointed following pro Jones' nine se mo- gle or Avery's testimony contradict Officer tions for change counsel. log" that the "call shows Jones missed three rapid p.m. calls in 14. Jones’ motion succession at 11:1-1 for-continuance also fails to establish p.m. the forensic examination and 11:12 expert testimony concerning log" the "call on court, 569.160.1(3), 2000,1 pro- trial the trial court RSMo to the Section presented first-degree a person in commits its discretion abused vides burglary: motion for continuance denying grounds.
such knowingly enters unlaw- [I]f [or she]
fully unlawfully or remains in knowingly or building -for inhabitable structure Conclusion crime reasons, judgment foregoing For the therein, effecting entry -or and when is affirmed. trial building in the- or while inhabitable present is structure ... [t]here C.J., Fischer, Stith Breckenridge, person who not a structure another concur; JJ., Russell, crime., participant in the unlawfully or person ‘enters remains “[A] . J., in part and Draper, concurs dissents unlawfully1 premises upon or when he filed; part opinion in separate privileged do [or she] licensed 569.010(8). so.” Section '571.015.1 Section J., Teitelman, opinion concurs in person armed criminal states commits Draper, J. “commits fel- with, by, ony of this state under laws IN PART OPINION CONCURRING use, assistance, aid of a IN PART AND DISSENTING deadly- dangerous weap- instrument *14 on..,” III, Draper Judge challenge . not the George W. suf- Jones does burglary ficiency underlying of his convic- opinion’s principal in the hold- T concur tion. by ing did not err the Circuit court charged The indictment Jones with com- Eugene overruling Floyd Jones’ Justin mitting the act of when he burglary know- “Jones”) (hereinafter, judgment motion for unlawfully an ingly entered inhabitable of ar- charge of acquittal resisting the for of purpose committing structure the a motion for a continuance. rest robbery -and while in the other structure dissent, however, I from the respectfully participants who were the people that'there was principal opinion’s holding present. crime were associated upon jury a sufficient evidence which charged armed criminal count action find that Jones beyond a reasonable doubt committing by, burglary the with with was guilty committing of through, knowing the assistance and of during burglary the course of . deadly of a weapon.- aid in- C.H.’s I would hold there was home. accordingly. The principal instructed support sufficient ignored opinion charged for how Jones conviction with criminal action associated burglary and the caselaw discusses charge com- burglary because Jones burglary completed, a is I which pleted as as he burglary soon crossed of components are critical anal- believe the- threshold C.H.’s and there ysis of on appeal. Jones’ claim was no evidence to fact 'with, by, burglary requires completed burglary conviction for dis- “[A] use, assistance, findings of entry tinct both unlawful aid commit, possessed. he intent to a crime therein.” State statutory 1. All are to RSMo further references 2000.
H5 gued Cooper, 215 pre- insufficient evidence Pigques, In State v. 310 S.W.2d gained entry sented that into the home (Mo.1958), explained: by Court shotgun use of the when the evidence
Entry is an element of the demonstrated glass ’essential he broke the qf kickqd burglary crime as com- understood at back open. Id. door The court by mon defined our stat- law and as agreed, “[T]he crime [armed stating, ‘entry1 ute.... is Literally, the act is action] burglary breach, going has place into the after a setting if the is weapon instrument used effected, the word has been but a broad- to gain entry purpose commit- significance er burglary, law ting a crime at therein.” Id. 723. The is not it confined the intrusion of interpreted 569.160 and sections: body, may-consist in- whole but require proye 571.015 to state that a sertion of for the part purpose, gain used a entry felony...,. An of a entry building into a of commit- (with is, building, intent ting crime by threatening therein steal) building, within the space occupant or breaking open a door with a completed bur- necessary crime weapon. Id.- The court noted the critical entry, (by glary, but,any. slight however charging distinction between the defendant part body), procured unlawfully entering versus unlawful- (or breaking, com- steal intent to. ly-remaining building in the for purposes therein, charge mit another crime of burglary and armed criminal action. Id. be) may is sufficient. at “What 723-24. did did follow (Internal Pigques, 310 at 945. n upon entry wholly his unlawful immate- added). emphasis citations omitted and rial to a determination whether defen- [the Whitaker, See also State v. of first-degree dant] committed crime (Mo.1955) (holding it was not nec it charged as was here.” defendant, essary that get his “whole 723. body” burgla into a to commit a structure *15 Carpenter relied State v. entry heavily
ry
because
least
part
“[t]he
(Mo.App.W.D.2001).
51
Dudley,
S.W.3d 44
sufficient”);
body is
Tierney,
the
State v.
In
(Mo. 1963).
Dudley, the court
a conviction
reversed
371 S.W.2d
323
Several
criminal action associated
analyzed
cases have
with
remarkably similar
scenarios,
gained
burglary
entry
factual
to Jones’ in which
when the
the
defendant
entry
completed
then,
defendant
his
to
by kicking
unlawful
into the home
in the door
inside,
burglary
commit a
a
and then used
gun
once
a
to murder
used
the
to
thereafter
commit
offenses
additional
51
at
Dudley,
victim.
48. On
S.W.3d
the burglary
complete.
once
was
it
appeal,
the state
failed to
conceded
it
prove
criminal action because
did
In
v. Carpenter,
109
718
S.W.3d
the
gained entry
defendant
into
show
(Mo.App.S.D.2003), the defendant entered
by using
the victim’s home
the gun be-
by breaking
glass
a home
out the
only
presented
cause
evidence
was
kicking possessing
while
a
back door
by kick-
the defendant entered the
inside,
shotgun. Once
the defendant fired
house
ing in
Id. at
The court
the door.
52.
shotgun.
109
Carpenter,
at
S.W.3d
agreed, finding
nothing
“there
720. The defendant was convicted of armed
burglary.
jury
criminal action
which a
associated with
from
record
reasonable
appeal,
at 721. On
ar-
[the
Id.
defendant
infer.that
entered the vie-
defendant]
with,
gun,
a
was no
unlawfully by,
through
fendant'had
there
evidence
tim’s house
aid,
Id.
gun.”
gun'to gain entry
assistance
a
his
he used
' 1 n
(cid:127)
apartment.” Id.
[the] [v]ictim’s
Hopkins, 140
In State
S.W.3d
State,
Finally, Obasogie v.
S.W.3d
the defendant had
(Mo.App.E.D.2004),
a
(Mo.App.E.D.2014), man
entered the
separate
enter four
doors
reach
asleep.
victim’s home
victim
home,
while thé
was
whom
victim inside
the defen-
Obasogie, 457
at 795. The victim
Hopkins,
stabbed.
dant then
saw
another
awoke and
the defendant and
charged with
at 147. The defendant was
’
man,
firearms,
carrying
her
both
enter
burglary.
action and
Id.
armed criminal
door.
Id. The
home
the back
at
The court
158.
reversed
defen-
dant’s armed nn criminalaction
in
his"-firearm
conviction,
discharged
defendant
while
was charged
side. Id. The defendant
that,
with
finding
charged,
as the crime was
and armed
action.
Id.
completed
upon
the burglary
defendant
In
proceedings,
postconviction
his
relief
occupied
entry
into an
home
unlawful
the motion court in
argued
the defendant
to commit
intent
assault.
Id.
clistinguished'
added).
correctly
from Car
case
(Emphasis
explained
The court
penter
Dudley
holding-appellate
sufficient
that while there was
evidence
failing
was hot ineffective for
counsel
dangerous
that a
instrument was used
the1
inside,
sufficiency
a"
chal
raise
assault
commit the
once
evidence of
lenge
ap'péal.
in the
direct
Id.
defendant’s'
weapon’s
the burglary
use
commit
affirmed,
appeals
The
797-98.
“virtually
was
159.
non-existent.” Id. at
stated,
finding
openly display
“was
defendant
The- court
events that oc-
“[T]he
ing
gun
[the
in his hand as
saw
victim]
subsequent
curred
unlawful
him
enter her house.
could rea
are not
relevant
determination.
implicit
sonably infer that
was an
action]
whether
connec-
[armed
by
[the
[the defendant’s]
threat
victim]
tion
underlying
of first-
”
display
gun
m his hand....
Id. at
degree
charged,
was
burglary,
commit-
distinguished Carpen
798. The court also-
ted
here.”
¡
ter, explaining:
Collins,
In State v.
among charges. The principal opinion other Id. court re The makes short work holdings versed the defendant’s conviction for Carpenter, Hopkins, in and action, on’ relying Carpen Obasogie, armed criminal as dismissing them- incorrect be- ter, Dudley, Hopkins. only and Id. at in 74-75. cause “use” is not the term used The court1found failed offer "the state section 571.015 to 'commit armed criminal any principal opinion evidence defendant entered the action. The reads section with, or apartment “by, expansively, essentially victim’s so constru- 571.015 aid, use, gun.” of a ing permutations” assistance Id. way its “nine such a “use, aid; “While there was evidence assistance of [the] [de render
117
synonymous
weapon”
added).
with intent to
(emphasis
use
principal opinion
The
weapon
possession
or mere
of a weapon ignores this
prior
Court’s
caselaw.that dis-
during the commission of another offense.
cusses when an
entry
unlawful
complet-
is
opinion
principal
The
concludes that
ed to
charge.
burglary
construction of
other
section 571.015.1robs
case,
In this
the evidence demonstrated
the words
“assistance” and “aid” of
there were
sensors inside
garage
C.H.’s
meaning
defining
armed criminal action.
triggered
reopen
the door
if
there
In
v. Reynolds,
of these alternatives dispute statute, be WALTER, Appellant. Leland Chadwick armed the associated No. SC However, charge. enter- unlawfully charged Jones state Missouri, Supreme Court with, by, garage ing the en banc. assistance, gun. or aid diligently to over- works opinion principal January Opinion issued ignores charging documents come the submitted instructions corresponding Further, principal opinion jury. to the pun- to now section 571.015 expanded
has (without intention to use ish mere use) of a possession or mere actual as suffi- of an offense during the course criminal action. cient constitute Moreover, setting aside the dicta even must posited Carpenter one from or ex- through the door shoot physically a.victim, the record dem- plicitly threaten gun to not use the Jones did onstrates because effectuate him. C.H. observed inside before there was insuf- Accordingly, I would find convic- ficient evidence criminal action associated tion first-degree and reverse on that count. conviction contemplates several alternative 569.160.1 suggest defendant commits 3. This is not to subject charging entering that do separate burglaries by unlawful- scenarios two charges multiple burglary for a ly unlawfully remaining within the same undertaking within an inhab- single during the crimi- unlawful inhabitable structure same question structure,, section itable nal is no endeavor. There