                     In the Missouri Court of Appeals
                             Eastern District
                                        DIVISON FOUR

STATE OF MISSOURI,                            )      No. ED101106
                                              )
       Respondent,                            )      Appeal from the Circuit Court of
                                              )      the City of St. Louis
vs.                                           )
                                              )
MARKUS STEED,                                 )      Honorable Joan L. Moriarty
                                              )
       Appellant.                             )      Filed: February 24, 2015

                                           Introduction

       Marcus Steed (Defendant) appeals the judgment of conviction entered after a jury found

him guilty of unlawful possession of a firearm and unlawful use of a weapon. Defendant claims

the trial court erred in denying: (1) his request for a mistrial when the trial court instructed the

jury to continue deliberations; and (2) his motion for judgment of acquittal because the State

produced insufficient evidence to support his conviction. We affirm.

                              Factual and Procedural Background

       Viewed in the light most favorable to the verdict, the evidence at trial revealed the

following: On May 29, 2012, Defendant and another man were walking along a sidewalk, when

Officer Barone, who was on patrol with Officers Jenkins and Henry, recognized Defendant from

a previous arrest and asked to speak to him. While Officer Barone spoke to Defendant, Officer

Henry conducted a computer inquiry and learned that Defendant had active warrants. Officer

Barone handcuffed Defendant, informed him he was under arrest, and performed a pat-down
search incident to arrest. In his search, Officer Barone discovered a loaded, nine-millimeter

semiautomatic pistol in Defendant’s waistband beneath his untucked shirt.

       The State charged Defendant with unlawful possession of a firearm and unlawful use of a

weapon. The trial court held a jury trial in December 2013. At trial, the State called to testify

Officer Katherine Castillo, a firearms examiner, and Officers Jenkins and Barone. Officer

Jenkins stated that he observed Officer Barone remove from Defendant’s waistband “a rusted,

brown semiautomatic handgun.” Officer Jenkins identified the gun in court (“State’s Exhibit 1”)

and again described it as “rusty, brown.” Officer Barone also identified the gun. On cross-

examination, he affirmed that, in the police report, he wrote that the gun had a “nickel finish,”

but agreed with defense counsel that the gun, in fact, had a “blue finish.”               On redirect

examination, Officer Barone described the gun as “rusty brown.” Officer Castillo, the firearms

examiner who examined the gun seized from Defendant, testified that the gun had a “blue-steel

finish” and appeared “slightly” rusted.

       The parties stipulated to Defendant’s prior felony convictions,1 and Defendant rested at

the close of the State’s case without presenting evidence. Defense counsel moved for a judgment

of acquittal at the close of the State’s evidence and at the close of all evidence, and the trial court

denied the motions.

       The jury retired to begin deliberations at 4:40 p.m. At 5:50 p.m., the jury sent the trial

court the following inquiry: “We cannot come up with a decision today. Is it possible to come

back tomorrow to deliberate tomorrow?” After consulting the parties, the trial court released the

jury for the evening.




1
 After the jury left the courtroom, the State presented evidence of Defendant’s prior convictions
and the trial court found that Defendant was a prior offender under Section 558.016.
                                                  2
       The following day, the jury resumed deliberations at 9:13 a.m. At 10:19 a.m., the jury

sent the trial court the following question: “What do we do when we can not [sic] come to a

unanimous decision[?]” The prosecutor requested that the trial court urge the jury to “continue

deliberating” as they had “only deliberated for a total of around two hours.” She explained, “I

think given more time, there’s a possibility they could reach a unanimous verdict.” Defense

counsel disagreed and moved for a mistrial, arguing that the jury had already deliberated over

two hours and “their question to the [c]ourt indicated absolutely no possibility of coming to an

unanimous decision whatsoever, making further deliberation a pointless exercise.”

       After hearing arguments, the trial court sent the jury the following response: “The court

advises that the jury is to continue deliberations.” At 12:00 p.m., the jury returned its verdict

finding Defendant guilty of both counts. The trial court sentenced Defendant as a prior offender

to concurrent terms of seven years’ imprisonment for unlawful possession of a firearm and two

years’ imprisonment for unlawful use of a weapon. Defendant appeals.

                                      Standard of Review

       Appellate courts review the denial of a request for a mistrial only for abuse of discretion.

State v. Salazar, 414 S.W.3d 606, 620 (Mo.App.S.D. 2013). “An abuse of discretion occurs

when the trial court's ruling is clearly against the logic of the existing circumstances and is so

arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful

consideration.” State v. Bracken, 333 S.W.3d 48, 55 (Mo.App.E.D. 2010) (internal quotation

omitted).

       Our review of a challenge to the sufficiency of the evidence supporting a criminal

conviction is limited to a determination of whether the trier of fact reasonably could have found

the defendant guilty. State v. Blankenship, 415 S.W.3d 116, 121 (Mo. banc 2013). “Appellate



                                                3
courts do not weigh the evidence but accept as true all evidence tending to prove guilt together

with all reasonable inferences that support the verdict and ignore all contrary evidence and

inferences.” Id. (quotation omitted).

                                            Discussion

       In his first point, Defendant claims the trial court erred in denying his request for a

mistrial after it “twice advised the court that it could not arrive at a decision . . . .” Defendant

further contends that the trial court’s action was coercive and prejudicial because “it compelled

the jury to return guilty verdicts against [Defendant].” The State counters that the court’s

instruction to the jury to continue deliberations was not coercive.

       “Coercion of a guilty verdict constitutes error.” State v. Manley, 414 S.W.3d 561, 570

(Mo.App.E.D. 2013).       “A verdict is considered coerced when it appears, under all the

circumstances, that the trial court was virtually directing that a verdict be reached and implying

that it would hold the jury until that happened.”        State v. Griffith, 312 S.W.3d 413, 421

(Mo.App.S.D. 2010). “Urging the jury to reach a verdict by a certain time or telling the jury that

it is required to reach a verdict is also deemed coercive.” Manley, 414 S.W.3d at 570. “A

reversal is required if it is conceivable that a challenged instruction coerced the jury into

returning a verdict, and nothing in the record is available to find otherwise.” Id. (quoting State v.

Greenlee, 327 S.W.3d 602, 616 (Mo.App.E.D. 2010)).

       As an initial matter, we address Defendant’s claim that the jury “twice advised the court

that it could not arrive at a decision.” (emphasis added). The jury submitted two questions to the

trial court, the first of which asked: “We cannot come up with a decision today. Is it possible to

come back tomorrow to deliberate tomorrow?” Nothing in this question suggests that the jury




                                                 4
deemed itself unable to reach a verdict. The question simply reveals that that, at 5:50 p.m., the

jury concluded that it could not reach a decision that day.

       Nor does the jury’s second question –“What do we do when we can not [sic] come to a

unanimous decision[?]” – communicate an inability to reach a unanimous decision. The question,

asked in the future tense, presents a hypothetical question. The jury was contemplating the

possibility of a hung jury, but it was not declaring deadlock.

       Assuming arguendo that the jury was hung when the trial court instructed it to continue

deliberations, Defendant has not alleged, much less demonstrated, that the trial court “stated or

implied that the jury would not be released until it returned a verdict, that it must reach a verdict

by a certain time, or that it was required to reach a verdict . . . .” Manley, 414 S.W.3d at 570

(quoting Greenlee, 327 S.W.3d at 617).           Indeed, Defendant acknowledges in his brief:

“[Defendant] does not allege that the trial court ‘positively misdirected’ the jury by telling it that

it must continue to deliberate.” The trial court’s instruction did not require the jury to reach a

verdict, but merely to continue deliberations. See id.

       Furthermore, the circumstances surrounding the jury’s deliberations and verdict do not

suggest that the verdict was coerced. The jury deliberated over two hours before it asked the trial

court, “What do we do when we can not [sic] come to a unanimous decision[?],” and it

deliberated another one and one half hours after the trial court advised the jury to continue

deliberating. “Missouri courts have found that a time period as short as approximately one-half

hour was not a sign that the verdict was coerced.” Manley, 414 S.W.3d at 571. Additionally,

Defendant does not allege, and the record does not suggest, that the trial court knew the jury’s

numerical split or the majority’s position, a factor which may, in certain circumstances, evidence

coercion.   See State v. Saunders, 318 S.W.3d 745, 749 (Mo.App.W.D. 2010).                   Because



                                                  5
Defendant fails to identify any evidence that the trial court’s instruction to the jury to continue

deliberations coerced a guilty verdict, we conclude that the trial court did not abuse its discretion

when it denied Defendant’s request for a mistrial. Point denied.

          In his second point, Defendant claims the trial court erred in denying his request for

judgment of acquittal because the State presented insufficient evidence to prove he committed

the crimes of unlawful possession of a firearm and unlawful use of a weapon. Specifically,

Defendant contends that the State “failed to prove every element of each offense beyond a

reasonable doubt in that the contradictory descriptions of the gun given by Officers Jenkins,

Castillo, and Barone cast doubt on whether the gun which was admitted as State’s Exhibit 1 was

in fact the gun allegedly seized from [Defendant].” In response, the State asserts that it presented

sufficient evidence at trial “from which a reasonable juror might have found [Defendant] guilty

of all the essential elements of the crime.”

          “To convict a defendant of a criminal offense, the State is required, as a matter of due

process, to prove beyond a reasonable doubt each and every element of the offense charged.”

State v. Slocum, 420 S.W.3d 685, 687 (Mo.App.E.D. 2014). As charged here, a person commits

the crime of unlawful possession of a firearm “if such person knowingly has any firearm in his or

her possession and . . . [s]uch person has been convicted of a felony under the laws of this state .

. . .” Mo. Rev. Stat. § 571.070.1(1).2 A person commits the crime of unlawful use of a weapon

when he or she knowingly “[c]arries concealed upon or about his or her person . . . a firearm . . .

.” Mo. Rev. Stat. § 571.030.1(1). To prove Defendant guilty of both offenses, the State was

required to prove that Defendant knowingly possessed a firearm.




2
    All statutory references are to RSMo 2000 as supplemented unless otherwise indicated
                                                 6
       Here, the State presented two police officers who testified that, at the time of his arrest,

Defendant carried a nine-millimeter semiautomatic handgun in his waistband under his shirt.

This evidence was sufficient to support the jury’s finding that on May 29, 2012, Defendant was

carrying a gun. Discrepancies in the witnesses’ descriptions of the gun relate to matters of

witness credibility, which are beyond our scope of review. See State v. Dvorak, 295 S.W.3d

493, 504 (Mo.App.E.D. 2009). “[T]he credibility and the effects of conflicts or inconsistencies

in testimony are questions for the jury.” Id. (quotation omitted). Based on our review of the

record, we hold that the State adduced sufficient evidence to prove the element of each crime

beyond a reasonable doubt. Point denied.

                                           Conclusion

       The judgment of the trial court is affirmed.




                                                      Patricia L. Cohen, Presiding Judge

Roy L. Richter, J., and
Robert M. Clayton III, J., concur.




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