State v. HarrisState v. Harris
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- Before:
- Kennedy
Defendant was convicted after a jury trial of second-degree robbery in violation of
Second-degree robbery is defined by
Defendant appeals to this court with the two allegations of trial error — first, in the omission of certain necessary findings from the court’s instructions to the jury, and, second, in the insufficiency of the evidence to support the conviction.
The facts are as follows, as testified to by security guard Cheryl Fugate, the only witness to testify in the trial:
On September 28, 1979, defendant and a male companion, Timothy Stewart, were in Jones Department Store at Metro North Shopping Center. Defendant was seen by Cheryl Fugate, the security guard, to remove a skirt, jacket, vest and blouse from their racks and hang them together on another rack near an exit door. Defendant and Stewart then left the area, returning a few minutes later. Defendant removed the clothing from the rack and handed them to Stewart. Stewart placed his denim jacket over the clothing and they left through the nearby door.
Fugate accosted the couple on the sidewalk outside the store. She identified herself to them and asked them to return to the store. Defendant pushed by Fugate and entered a nearby parked car on the passenger side. Stewart walked briskly to
Stewart backed his car out of the parking space, Fugate still preventing his closing the door. He pushed Fugate to the pavement and drove away.
Stewart and the defendant were later arrested and identified by Fugate as the culprits.
Instructional error.
Defendant complains of the omission from the court’s instructions of a required finding that defendant must have known that Stewart was practically certain to commit the offense of robbery in furtherance of the offense of stealing. The court gave an instruction patterned after MAI-CR2d 2.10, but omitted the second paragraph of Sec. 2 of the pattern instruction. That paragraph would have told the jury that “a person is criminally responsible for any other offense which he knew that such other person was practically certain to commit in the course and furtherance of the particular offense initially contemplated”. Defendant says that paragraph should not have been omitted, and also that such a finding should have been required by the verdict-directing instruction. The verdict-directing instruction did not require such a finding.
The criticism now made of the instructions appears for the first time in appellant’s brief in this court. It was not contained in her original oral objection to the instructions before they were read to the jury, nor in her motion for a new trial. It is therefore not preserved for review.
At defendant’s request, however, we have examined the point for plain error under Supreme Court Rule 29.12.
Defendant’s argument assumes that the actual crime of second-degree robbery, which occurred outside the store, was the act of Stewart alone, and that the state sought to convict defendant by proof that she engaged in the stealing with Stewart and was therefore vicariously guilty of his robbery committed without her aid or participation. If that were the case, defendant’s argument would have more cogency. That however was not the state’s theory. The verdict-directing instruction required that the jury find that defendant “either before or during the commission of the offense of robbery in the second degree with the purpose of promoting its commission aided (Stewart) in committing that offense”. It called for a finding of defendant’s aid of Stewart in committing the offense of second-degree robbery. As we shall point out in our discussion of the sufficiency of the evidence, there was evidence of defendant’s personal participation in the forceful retention of the stolen property.
The instructions taken together fairly present the crime of second-degree robbery in the context of the evidence, and we are satisfied that defendant suffered no prejudice as a result of any deviation from MAI-CR2d instructions. State v. Clark, 607 S.W.2d 817, 821 (Mo.App.1980). Finding no plain error, this point of defendant’s is disallowed.
Sufficiency of evidence.
Defendant challenges the sufficiency of the evidence to support the conviction. She claims it falls short of proving certain statutory elements of the crime. The “forcible stealing” concept of
(a)
That the evidence does not show the use of “force” by defendant as required by statute.
Here she argues again, as she did under her instructional error point, that the stealing inside the store, without force, was complete before the events which took place outside the store. She claims that the stealing was the only offense in which she participated, and that she was not responsible for the robbery which occurred outside the store as Fugate was trying to prevent Stewart’s (as defend
Defendant points out that her pulling back the clothes from Fugate was not force “upon the person”. But it is not necessary that the person be touched. The force shown — that is, of seizing and trying to free the clothing from Fugate — was sufficient for the forcible stealing of
(b)
That the force was not used “immediately” after the taking, hence there
was
no forcible stealing within the meaning of
(c) Defendant says there was no evidence that the clothes were not paid for, hence no evidence that they were stolen to begin with. From our statement of facts earlier in this opinion, it will be seen that the jury could conclude from the behavior of the defendant and Stewart that they stole the clothes in question.
The evidence was sufficient to withstand defendant’s motion for a directed verdict and amply sustains the conviction.
The judgment is affirmed.
All concur.
Notes
. People v. Santiago, supra, is a useful case for its discussion of forcible stealing, or second-degree robbery, as opposed to “stealing” where “the actor physically takes the property from the person of the victim”, a Class C felony under § 570.030.2 (2), RSMo 1978.