Opinion
No. ED77996
OPINION FILED: August 14, 2001
APPEAL FROM THE CIRCUIT COURT OF ST. CHARLES COUNTY, HONORABLE LUCY D. RAUCH.
Alan Kimbrell, 18238 Hager Lane, Chesterfield, MO 63005, for appellant.
Jeremiah W. (Jay) Nixon Evan J. Buchheim, P.O. Box 899, Jefferson City, MO 65102-0899, for respondent.
Defendant, Cornealious Anderson, appeals from the judgment entered after a jury found him guilty of robbery in the first degree and armed criminal action. We affirm.
We review the facts in the light most favorable to the verdict. State v. Winfield, 5 S.W.3d 505, 508 (Mo.banc 1999). Shortly after 11:00 p.m. on August 15, 1999, Leon Kerns, an assistant manager at Burger King, drove to a bank in St. Charles, Mo. to make a deposit of the restaurant's daily cash receipts. The receipts exceeded $2,000. As Kerns put his key into the night-deposit box, he heard footsteps. Kerns turned his head and saw two men wearing dark clothes and ski masks. Kerns would testify that at that time "two guns were stuck" in his face and "each," referring to the robbers, had a gun. According to Kerns, the guns were "the kind where the clip goes in the handle." Kerns also testified that one of the robbers told him to drop the bags "or he was going [to] blow my [f]'g head off." Kerns then dropped the bags containing the money. The two robbers grabbed the bags and "took off running." After waiting a few seconds, Kerns ran into the street and saw a blue car come "screaming out of the side street" and he wrote down the vehicle's license plate number. The vehicle was registered to defendant and police found it approximately five hours after the robbery at a nearby apartment complex. On the following day, defendant reported the vehicle stolen. Police searched the vehicle and found certain items with defendant's name and photograph. One of the items had an address for an apartment in St. Louis where defendant was living. At this address, police found a video rental slip from a store about a block and a half from where the robbery occurred and in the name of defendant's girl friend. The time shown on the slip was approximately four hours prior to the robbery. The police also found a "Beretta Magazine brochure for semi-automatic handguns" (hereafter Beretta brochure).
Kerns was unable to identify defendant and his stepbrother as the men who robbed him.
Defendant gave a statement to police as follows. He admitted that "he was a partner in a robbery." While he and his stepbrother were driving near the bank, his stepbrother pointed to a person making a night deposit and said pull over "`I want to rob that guy.'" Defendant then stopped the car in the apartment complex near the bank. Defendant and his stepbrother, who had a BB gun, went over to the bank and the stepbrother told Kerns to drop the bags or he would blow his head off. When Kerns hesitated for just a second, defendant told Kerns to "[d]rop it" or "[g]ive it up." Defendant's stepbrother picked up the bags and the two ran to defendant's car and drove away. After seeing a police car, defendant drove back to the apartment complex and he and his stepbrother abandoned the vehicle. Defendant received about half of the stolen money.
Defendant was charged by information with robbery in the first degree, section 569.020 RSMo. 1994, and armed criminal action, section 571.015 RSMo. 1994. At trial, defendant testified that he did not plan with his stepbrother or know that his stepbrother was going to commit the robbery. According to defendant, while driving near the bank his stepbrother jumped out of the car after telling him to pull over. Defendant testified that after waiting "a moment" he ran after his stepbrother and eventually ran past his stepbrother and the victim at the bank. Defendant also testified that at that time he "knew what was going on." Defendant testified that after Kerns "kind of went toward his car" he told him "Hey, don't move." Defendant further testified that his stepbrother had a BB gun and that he did not have anything in his hand. The trial court overruled defendant's objection to the introduction of the Beretta brochure. The jury found defendant guilty of robbery in the first degree and armed criminal action and recommended sentences of ten years for the robbery conviction and three years for the armed criminal action conviction. The trial court sentenced defendant in accordance with the jury's recommendation, and ordered the sentences be served consecutively. Defendant raises one point on appeal.
Defendant argues that the trial court erred in overruling his objections to the introduction in evidence of the Beretta brochure. Defendant contends that there was not the slightest evidence that any gun advertised in the Beretta brochure, or any gun remotely resembling any gun advertised in the Beretta brochure, was used in the robbery. Defendant asserts that the Beretta brochure was totally irrelevant and its introduction into evidence was highly prejudicial.
A trial court has discretion to determine whether evidence is relevant, and appellate courts will reverse that determination only upon a showing of abuse of this discretion. State v. Davis, 32 S.W.3d 603, 611 (Mo.App.E.D. 2000). The test for relevancy is whether the evidence offered tends to prove or disprove a fact in issue or corroborates other relevant evidence. State v. Smith, 32 S.W.3d 532, 546 (Mo.banc 2000).
During direct examination, a detective testified that state's exhibit 32 contained items that he had seized from the apartment in St. Louis where defendant lived at the time of the robbery. Defendant objected to the introduction of the brochure stating it was not relevant. The trial court overruled the objection. During cross-examination, defendant testified as follows:
Q. There was a BB gun being used that was provided by Jay Harris?
A. And that is the statement [referring to a statement defendant gave to police], yes, that is.
Q. Did you say that?
A. Yes.
Q. So, there was a BB gun?
A. Like I said, sir — —
Q. You claim it's a BB gun?
A. Like I said sir, that statement right there was the very first — that was actually the second statement I made. If you read the first statement that I said that there was a robbery, and that I didn't know. Detective Sutton said, "Well, didn't you say the day before that your brother had a BB gun?" He said, "Just put that in the statement so it will be a little more clear."
Q. I want to show you what's been marked State's Exhibit 32C [the Beretta brochure]. Have you ever seen 32C before?
A. I have seen this.
Q. Where was that?
A. This was one of my neighbor[ ]s. He had got it from a gun show.
Q. Found in your house; wasn't it?
A. Yes.
Q. That is not a BB gun; is it? That's a Beretta? That's a series of Berettas; isn't it?
A. Yes.
Q. And you're familiar with Berettas; aren't you?
A. No, I am not, sir.
Q. Never went to a gun show?
A. I never went to a gun show, no.
[Prosecutor]; Offer State's Exhibit 32C, which is actually one of the items in 32 which was previously admitted.
THE COURT: Any objection?
[Defendant's Counsel]: Your Honor, I objected to that before as it's irrelevant.
* * * * * * *
THE COURT: And this was found in the residence; is that right?
[Prosecutor]: Yes.
THE COURT: I'll allow that over Defendant's objection.
(The proceedings returned to open court.)
(By [Prosecutor]) This was somebody else's, this was not yours?
A. No, that was the neighbor's.
The "general rule" is that it is error to admit weapons that are not connected with a defendant or the crime and that do not possess probative value. State v. Minton, 782 S.W.2d 134, 137 (Mo.App. 1989); see State v. Kreutzer, 928 S.W.2d 854, 868-69 (Mo.banc 1996). For example, inState v. Reyes, 740 S.W.2d 257, 261-65 (Mo.App. 1987), the court held that a knife was inadmissible where the victim was killed by a shotgun and there was no evidence that the defendant had possessed the knife and no evidence to otherwise connect the knife to the defendant or the crime.
Here, the Beretta brochure was found in defendant's apartment. Defendant admits this is the apartment where he lived at the time of the robbery. Kerns testified that the guns used in the robbery were "the kind where the clip goes in the handle." Semi-automatic handguns are generally the type where an ammunition clip would be placed in the handle of the gun. In the present case, the Beretta brochure is sufficiently connected to defendant and the crime. Furthermore, whether a semi-automatic gun or guns were used in the robbery was a fact in issue.See sections 569.020 and 571.015. According to defendant, his stepbrother used a BB gun and he did not have a gun. Kerns testified both robbers had a gun. The challenged evidence corroborates Kerns testimony. Defendant's point is denied.
The judgment is affirmed.
Clifford H. Ahrens, P.J., and James R. Dowd, J.: Concur.