Antonio Sistrunk (“Defendant”) appeals from the trial court’s judgment, following a jury’s guilty verdict, of robbery in the first degree, in violation of Section 569.020, RSMo 2000,
I. BACKGROUND
The relevant facts, viewed in the light most favorable to the jury verdict, are as follows. In the early afternoon, on or about May 21, 2009, Defendant and an unidentified man (“Unidentified Accomplice”) entered Lady Jane’s Antiques on Cherokee Street in the City of St. Louis. At the time Defendant and Unidentified Accomplice entered the antique store, the only individual present was the store owner, John Brauer (“Victim”). Defendant and Unidentified Accomplice began perusing the store and conversing with Victim.
Soon, after entering the store, Unidentified Accomplice pulled a black gun from his waistband and pointed it at Victim with his finger on the trigger. Defendant, meanwhile, pointed a “very hard” object at the back of Victim’s head, which Victim “assumed” was a gun although he never saw the object. Defendant proceeded to reach into Victim’s left and right pockets and removed the cash and credit cards therein located.
While Unidentified Accomplice continued to point his gun at Victim, Defendant assisted Victim in moving towards the back of the store (in order to remove Victim from sight of the store’s front door) and guided Victim to the ground. Using the cord from a nearby lamp, Defendant tied Victim’s hands together and used Victim’s shoestrings to tie Victim’s ankles together. Before fleeing the store, Unidentified Accomplice collected the Victim’s laptop, cash, and cell phone sitting on the store counter.
After Defendant and Unidentified Accomplice fled the store, within two minutes Victim kicked-off his shoes and ran outside with his hands still tied together by the lamp cord. Fortunately, a City of St. Louis police officer had just turned his vehicle onto Cherokee Street, and Victim notified the officer of the incident.
Roughly a week later, Victim identified Defendant in a photographic-lineup and Defendant’s fingerprints were matched with the fingerprints found on the lamp whose cord was used to tie Victim’s hands. The identity of the Unidentified Accomplice has never been discovered.
At the close of all evidence, Defendant filed a motion for judgment of acquittal on all charges; the trial court denied Defendant’s motion. The jury returned verdicts of guilty for all three counts.
Defendant now appeals.
II. DISCUSSION
Defendant presents two points on appeal. Both points raised by Defendant challenge the sufficiency of the evidence supporting his convictions.
In his first point, Defendant claims the trial court erred in denying his motion for judgment of acquittal at the close of all evidence because there was insufficient evidence to support Defendant’s convictions of first-degree robbery and the accompanying ACA. Specifically, Defendant argues that the State failed to prove Defendant acted in concert with another and that he stole from the victim with the use of a deadly weapon or instrument.
Second, Defendant contends the trial court erred in denying his motion for judgment of acquittal at the close of all evidence because there was insufficient evidence to support Defendant’s conviction of kidnapping. Defendant argues the evidence adduced during trial failed to establish that Defendant unlawfully confined Victim for a “substantial period” after the commission of the crime of robbery for the purpose of facilitating flight.
Standard of Review
Standard of Review This Court reviews the denial of a motion for acquittal to determine if the state adduced sufficient evidence to make a submissible case. State v. Foster,
Analysis
Point I — First-Degree Robbery and ACA
Defendant was tried and convicted of first-degree robbery and ACA, via accomplice liability. “The law of accessory liability emanates from statute, as construed by the courts.” State v. Barnum,
Accordingly, “[t]o make a sub-missible case of accomplice liability, the State must show that the defendant associated himself with the venture or participated in the crime in some manner, but the State need not show that the defendant personally committed every element of the crime.” Young,
First, pursuant to Section 569.020.1, a person commits the crime of first-degree robbery when he forcibly steals property and in the course therefore, 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 threaten 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.
Section 569.020.1. As such, a conviction for first-degree robbery in this case required the State to show Defendant, acting in concert with another, forcibly stole property from another while using or threatening the use of what appeared to be a deadly weapon. Jones,
Second, to be found guilty of armed criminal action, there must be proof the defendant committed a “felony under the laws of this state by, with, or through the use, assistance or aid of a dangerous instrument or deadly weapon[.]” Section 571.015.1. Thus, the State was required to show Defendant, acting in concert with another, committed first-degree robbery with the assistance of a deadly weapon. Jones,
Defendant argues there was insufficient evidence to convict him of the crimes charged because: (1) the State failed to prove the identity of the second person in order to establish Defendant acted in concert with another; and (2) the State failed to prove the item allegedly placed against Victim’s head was a dangerous weapon or instrument. Although Defendant admitted to stealing the victim’s laptop, cell phone, credit cards and cash, Defendant testified that he entered the antique shop unaccompanied and stole the property without a dangerous instrument or weapon.
Conversely, Victim testified that two individuals entered his business and the “short one” — Unidentified Accomplice— pointed a black gun at him. While Unidentified Accomplice pointed a gun at Victim, Defendant pointed a hard object to the back of Victim’s head, which Victim assumed to be a gun. Although Victim never saw the object pointed at his head by Defendant, Victim believed the object to be a gun. Furthermore, Victim was able to identify Defendant in a photo
This Court, on appeal, does not weigh the evidence adduced during trial, but rather accepts as true all of the evidence favorable to the State, including all favorable inferences drawn therefrom, and we disregard all contrary evidence and inferences. In light of this standard of review, Victim’s testimony is sufficient evidence from which rational jurors could have found beyond a reasonable doubt that Defendant was guilty of first-degree robbery and ACA. State v. Taylor,
Moreover, because there was sufficient evidence Defendant acted in concert with another individual, whether Defendant was in possession of a deadly weapon or instrument is immaterial because Victim testified that Unidentified Accomplice utilized a gun to carry out the robbery
Defendant’s assertion that the State is obligated to establish the identity of the accomplice or accomplices is without support. Defendant cites to no ease law, and independent review by this Court finds none. Rather, contrary to Defendant’s contention, the inference of guilt is consistent with, and flows naturally and logically from the evidence presented at trial that Defendant acted in concert with another to forcibly steal property with the use of a deadly weapon.
Viewed in the light most favorable to the verdict, and considering all the evidence and inferences favorable to the verdict, we find the State presented sufficient evidence from which rational jurors could have found beyond a reasonable doubt that Defendant was guilty of first-degree robbery and ACA. Point I is denied.
Point II — Kidnapping
Defendant asserts in his second point on appeal that the trial court erred in denying his motion for judgment of acquittal at the close of all evidence with regard to the kidnapping charge because Defendant’s actions did not constitute a separate offense of kidnapping, in that there was no increased risk of harm or danger to Victim and that the evidence failed to prove Victim was confined for a “substantial period.”
In Missouri, pursuant to Section 565.110.1, kidnapping has been statutorily prescribed as the following:
1. A person commits the crim'e of kidnapping if he or she unlawfully removes another without his or her consent from the place where he or she is found or unlawfully confines another without his or her consent for a substantial period, for the purpose of
(1) Holding that person for ransom or reward, or for any other act to be performed or not performed for the return or release of that person; or
(2) Using the person as a shield or as a hostage; or
(3) Interfering with the performance of any governmental or political function; or
(4) Facilitating the commission of any felony or flight thereafter; or
(5) Inflicting physical injury on or terrorizing the victim or another.
In the present case, the State charged Defendant with kidnapping in violation of subdivision (4). See, supra, Section 565.110.1(4). Under this subdivision, the State is required to prove three different and distinct elements: (1) the defendant unlawfully removed or confined the victim for a substantial period of time, (2) without the victim’s consent, and (3) such removal or confinement was for the purpose of
A. Defendant’s Confinement of Victim Was for a “Substantial Period. ”
First, Defendant contends that Victim’s confinement was not for a “substantial period” because Victim testified that he was able to withdraw from confinement and exit the store for help after only one or two minutes from the time Defendant and Unidentified Accomplice fled.
From the outset, we note that “substantial period” is not defined in the statute and no Missouri court has expressly addressed the length of time a victim must be confined in order for there to be a submissible case of kidnapping pursuant to Section 565.110. See State v. Keeler,
Under Missouri precedent, the offense of kidnapping can only be sustained where the movement or confinement of the victim is more than “merely incidental” to another offense. State v. Williams,
For example, in State v. Morrison,
This interpretation of Section 565.110and our election not to draw a “bright-line” rule as to the duration of confinement is in accord with and effectuates the section’s legislative intent — this Court’s primary duty when interpreting a statute. State v. McLaughlin,
The development and roots of Section 565.110can be traced back to the Model Penal Code (“MPC”). Spier v. State,
A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business, or a substantial distance from the vicinity wherehe is found, or if he unlawfully confines another for a substantial period in a place of isolation, with any of the following purposes:
(a) to hold for ransom or reward, or as a shield or hostage; or
(b) to facilitate commission of any felony or flight thereafter; or
(c) to inflict bodily injury on or to terrorize the victim or another....
Model Penal Code § 212.1 (1962); see also Flores v. State, 186 S.W.Sd 398, 400 (Mo.App.E.D.2006). While § 212.1 of the MPC was not adopted by the Missouri Legislature in toto, the “substantial period” limitation remained intact.
Historically, a kidnapping charge was added or “pyramided” upon the underlying offense, in order to obtain a more severe punishment, although the confinement or asportation was merely incidental of the underlying offense. A Rationale of the Law of Kidnapping, 53 Colum. L.Rev. 540, 556 (1953) (“A salient consideration is that virtually all conduct within the scope of kidnapping law is punishable under some other criminal provision: e.g., extortion, homicide, assault, rape, robbery....”). Thus, in proposing and enacting Model Penal Code § 212.1, the American Law Institute (“A.L.I.”) deemed it “desirable to restrict the scope of kidnapping, as an alternative or cumulative treatment of behavior whose chief significance is robbery or rape,” because the broad scope of kidnapping had given rise to serious injustice. A.L.I., Model Penal Code § 212.1, comment 1 to Tentative Draft No. 11 at 13 (1960). Accordingly, the purpose in including the “substantial period” limitation under § 212.1 of the MPC was “to avoid application of the kidnapping law to detentions merely incidental to rape and other crimes of violence.” Id. at 16. If the “substantial period” limitation was excluded, the A.L.I. postulated that kidnapping’s breadth would be too broad and would punish those that were, in fact, not guilty of kidnapping:
Thus, for example, the robber who forces his victim to move from one room to another in order to find a cashbox or open a safe technically may commit kidnapping as well as robbery. This reasoning raises the possibility of cumulative penalties or of higher sanctions for kidnapping, even though the ‘removal’ of the victim to another place was part and parcel of the robbery and not an independent wrong.... Definition of kidnapping to exclude such cases is a task of special subtlety for, unless particular care is taken, trivial aspects of robbery, rape, or some other crime will end up classified as the most serious version of kidnapping.
A.L.I., Model Penal Code and Commentaries Part II, comment 2 to § 212.1 at 220-21 (1980).
Specifically excluded from the MPC § 212.1 and its accompanying comments was a definition for “substantial period”
Consistent with the MPC, in proposing and enacting the Missouri kidnapping statute, the Comment to the 1973 Proposed Code of Section 565.110 also avoids defining “substantial period” in terms of time. See Section 565.110, Comment to the 1973 Proposed Code. Instead, Comment to the 1973 Proposed Code also focuses upon confinement exceeding that which is merely incidental to the commission of another offense. Id. However, the Comment to the 1973 Proposed Code explicitly notes the amount of confinement necessary “cannot be defined precisely as it will vary according the circumstances.” Id. Clearly, the legislative history of Section 565.110 coupled with its derivation from the Model Penal Code manifest a legislative intent to punish as kidnapping those instances where confinement has a criminal significance above and beyond that necessary to consummate some underlying offense such as robbery.
Furthermore, courts in other jurisdictions, considering kidnapping statutes borrowed from the § 212.1 of the MPC and comparable to Section 565.110, have agreed with this Court’s interpretation that the phrase “substantial period” expresses an intent the duration of confinement is not itself an integral part, even though the duration of confinement may bear on whether the confinement was “merely incidental.”
For instance, the Supreme Court of Vermont, in State v. Carrasquillo,
On appeal, the Supreme Court of Vermont affirmed the defendant’s kidnapping conviction, holding that the question of “[wjhether a confinement is sufficiently substantial to support a kidnapping conviction depends upon a ‘qualitative’ analysis of the factors surrounding the confinement[,]” including:
(1) whether the detention significantly increases the dangerousness or undesirability of the defendant’s behavior, (2) whether the detention occurred during the commission of a separate offense, and (3) whether the detention created a significant danger to the victim independent of that posed by the separate offense[.]
Id. at 1146. In so sustaining defendant’s conviction, that court reasoned that, although the confinement lasted only a few minutes, there was sufficient evidence the confinement of the nurse was “substantial” because the nurse was restrained with a weapon to her throat during a highly volatile and dangerous situation, increasing the likelihood of harm to the nurse. Id. at 1145-46; see also State v. Jones,
Analogously, the Supreme Court of New Jersey held that one is confined for a “substantial period” if that confinement
‘is criminally significant in the sense of being more than merely incidental to the underlying crime,’ and that determination is made with reference not only to the duration of the confinement, but also to the ‘enhanced risk of harm resulting from the [confinement] and isolation of the victim [or others]. That enhanced risk must not be trivial.’
La France,
Similarly, several other jurisdictions which have analyzed the meaning of “substantial period” under similar statutes have held the meaning of the term is not solely a “quantity” inquiry, but rather a “qualitative” inquiry upon other circumstances surrounding the confinement — regardless of the duration of confinement— such as whether the confinement was independently criminally significant or whether the confinement increased the risk of harm to the victim. See, e.g., Com. v. Hughes,
Turning now to the facts of this case, we find sufficient evidence existed for the trial court to deny Defendant’s motion of acquittal because Defendant confined Victim for a “substantial period.” Contrary to Defendant’s suggestion, confining another person is neither an element nor a necessary component of robbery in the first degree and it is reasonable to construe the kidnapping statute to cover the behavior at issue here — being tied does not naturally accompany the crime of robbery and is more than “merely incidental.” Defendant testified that he tied Victim’s hands and ankles together. From this testimony, a juror could have reasonably found that Victim was to be confined for a substantial period to facilitate Defendant’s and Unidentified Accomplice’s flight from the scene. Merely because Victim was, in fact, able to escape confinement after only a few minutes does not eliminate the possibility of increased risk of harm to Victim caused by the confinement. See State v. Bess,
B. Defendant’s Confinement Increased the Risk of Harm or Danger to Victim.
Second, Defendant argues that the confinement of Victim did not increase the risk of harm or danger to Victim. As heretofore indicated, this argument is clearly refuted by the record.
Here, sufficient evidence existed because the forcible confinement of Victim was not merely incidental to the first-degree robbery of Victim, but rather increased the risk of harm to Victim. First, the record reveals that Defendant forcibly confined Victim by tying his hands and ankles in order to prevent Victim from leaving the store or becoming visible to the public outside the store and also to facilitate Defendant’s flight. Defendant, thereby, increased his ability to prolong his first-degree robbery. State v. Jackson,
III. CONCLUSION
For the foregoing reasons, the trial court’s judgment is affirmed.
Notes
. All statutory references are to RSMo 2000, unless otherwise specified.
. It should be noted that Victim's testimony is not entirely uncorroborated as Defendant's fingerprints were found at the scene of the crime.
. While Defendant's possession of a gun, or lack thereof, is immaterial, this Court finds there was sufficient evidence that Defendant, himself, threatened the use of what appeared to be a gun. The “thrust of the robbery first degree statute is to encompass those situations where the victim is placed either in unusually great danger or fear of bodily injury.” State v. Humphrey,
Here, the evidence presented established Defendant threatened the use of what ap
. The dictionary definition of "substantial,” in pertinent part, reads: "1 a: consisting of or relating to substance[;] b: not imaginary or illusory: Real, True; c: Important, Essential ... 5 a: possessed of means: Well-To-Do [;] b: considerable in quantity: significantly great <earned a substantial wage>[.]" Merriam-Webster Online Dictionary. 2013. http:// www.merriamwebster.com (18 Aug. 2013).
As made apparent by these definitions, "substantial” sanctions two possible definitions: (1) quality (i.e., the nature and method regarding the period of confinement); and (2) quantity (i.e., the duration of confinement). See, e.g., State v. Hofland,
. The most obvious deviation between Section 565.110 and Model Penal Code § 212.1 was the removal of the "substantial distance” limitation. Compare Section 565.110 with Model Penal Code § 212.1. The effect of this departure was thoroughly addressed in State v. Woodland,