 

Iit the Missotxri Court of Appeals
Easterzi District

DIVISION THREE
STATE OF MISSOURI, ) No. EDl02786
)
Respondent, ) Appeal from the Circuit Court of
) St. Louis County, Missouri
vs. ) l3SL-CRl0672-0l
)
CURTIS STOKES, JR., ) Honorable Robert S. Cohen
)
Appellant. ) Filed: June 14, 2016

OPINION

Curtis Stokes, Jr., appeals the judgment entered upon his convictions following a jury
trial in the Circuit Court of St. Louis County of one count of first-degree robbery and one count
of arnied criminal action. Stokes contends that the trial court erred by improperly admitting
hearsay evidence, and by improperly instructing the jury that it could convict Stokes of armed
criminal action in connection with the lesser included offense of second-degree robbery. We
affirm.

Factual and Procedural Backgrollnd

On the evening of October 18, 2013, Stol<es approached Kendrick Latchman ("Victiiii")
on Horizon Village Drive in Spanish Lake, Missouri, pointed a gun at his face, patted him down,
and asked him whether he had any money. Victim gave Stokes the inoney he had in his pocket.
Stokes threatened Victim that he would harm him if Victim had not given him all the money he

had. Stol<es also took some of Victim’s other possessions including his mobile phone.

During the robbery, Victim saw another man standing in the vicinity by a tree. Victim
presumed the man was serving as a lookout for Stokes. The man was later identified by Victim
as John Bennett. After Stokes and Bennett were arrested, they were together at the police station
during the booking process. A police detective overheard Stokes and Bennett get into an
argument. Over Stokes’s objection at trial, the detective testified about the Qut-of-collrt
statements Stol<es and Bennett made during the argument

The court instructed the jury on both first~degree robbery and the lesser included offense
of second-degree robbery. The court also gave an armed criminal action instruction in
connection with each offense. Stokes objected to giving the arined criminal action iiistrlictioii in
connection with the second-degree robbery instruction Stokes was convicted of first-degree
robbery and arnied criminal action. 'i`his appeal foliows.

Point I: Acllnission of Hearsay Evidence

In his first point on appeai, Stol<;es argues that the trial court abused its discretion by
improperly admitting the out-of~court statements made by St0kes and Bennett during their
argument at the police station after their arrest in this case. We disag1'ee.

We will reverse a trial couit’s ruling on the admission of evidence only if the court
clearly abused its discretion. Smfe v. Forrest, 183 S.W.Sd 218, 223 (Mo.banc 2006). The trial
court abuses its discretion when its ruling is clearly against the logic of the circumstances and is
so unreasonable as to indicate a lack of careful consideration Id. Moreover, we review the trial
court’s ruling for prejudice, not mere error, and we will reverse only if the error was so
prejudicial that it deprived the defendant of a fair trial. Id. at 223-24.

Hearsay is an out-of-court statement offered to prove the truth of the inatter asserted in

the stateinent. Sfcife v. Sinzrnons, 233 S.W.3d 235, 237 (Mo.App.E.D. 2007`) (citing State v.

Keinp, 212 S.W.Sd 135, 146 (Mo.banc 2007). Hearsay statements are generally inadmissible
Id. However, the admission of a party opponent is not hearsay. Id. A statement may be
admitted as the admission of a party opponent if it is relevant and inaterial to the case and is
offered by the opposing paity. Ia’. The admission of a criminal defendant is relevant and
material if it tends to incriminate the defendant, to connect the defendant to a crime, or to
inanifest the defendant’s consciousness of guilt. Id. The defendant need not expressly
acknowledge his or her guilt for the statement to qualify as an admission. Sfafe v. Isa, 850
S.W.2d 876, 894 (Mo.banc 1993). To determine whether the statement constitutes an admission,
the statement must be viewed in light of the surrounding circumstances. Stcli‘e v. Floyci, 347
S.W.3d ll5, 124 (Mo.App.E.D. 2011) (citing Isa, 850 S.W.2d at 894).

Here, the police detective testified at trial that he overheard an argument at the police
station between Stokes and Bennett after the two men had been arrested in connection with the
robbery o_f Victiin. The detective testified that Bennett "began screaming" at Stokes to "own
what he did" and "take his case." Altliotlgh Stokes did not initially respond, Bennett continued
to “go at" Stokes verbally. Stokes eventually responded to Bennett: "Man, shut the f--- up, quit
snitcllilrg." The detective testified that he took "snitcliirig" to mean "telling the truth" about the
robbery and that he believed Stokes’s statement implied that he was responsible for the robbery
and was attenrpting to keep Bennett from relating that fact to the police.

in light of the detective’s testimony and the circumstances in which the statements were
inade, the trial court could reasonably have concluded that Stokes’s statement at a minimum
connected him to the robbery. Thus, the trial court did not abuse its discretion in concluding that
Stol<:es connected himself to the offense by telling Bennett to stop "snitching" on him after they

had each been arrested for the robbery. Stokes did not have to expressly acknowledge his guilt

of the offense. lt was sufficient that his statement permitted an inference that he was connected
to or committed the offense.

Turning to Beiiiiett’s statement, in which he urged Stokes to "own what he did" and "take
his case," we hold that the trial court could reasonabiy have admitted the statement in order to
help to explain the context in which Stokes told Bennett to "quit snitching." See Stc:te v. Webber‘,
982 S.W.Zd 3l7, 323 (Mo.App.S.D. 1998) (adinitting statement "not . . . for the truth of the
inatter asserted; rather, . . . to supply the context for [other admissible] statements rnade"); State
v. Mo!`asky, 655 S.W.Zd 663, 668~69 (Mo.App.E.D. 1983) (same); Stczfe v. Spica, 389 S.W.Zd 35,
46-48 (Mo.banc 1965) (adlnitting third party’s statements in connection with defendant’s
admissions against inte1'est, "not [as] direct evidence but admissible only in connection with the
[defeiidalit’s] reply," and stating that "[t]estimony of such statements is a recognized exception
to the hearsay rule"). 'l`hus, the trial court did not abuse its discretion in admitting Bennett’s
statement. Point l is denied

Point II: Second-Degree Robbery and Arined Criminal Action

fn his second point on appeal, Stokes argues that although the jury convicted him of first-
degree robbery, the trial court erred when it instructed the jury that it could convict him of arined
criminal action in connection with the lesser included offense of second-degree robbery. We
disag1'ee.

Wlietlier a jury was instructed properly is a question of Iaw. Stczte v. Miner, 363 S.W.3d
]45, 148 (Mo.App.E.D. 2012). ln reviewing for instructional error, we view the evidence most
favorably to the instruction, disregard contrary evidence, and reverse where the party challenging
the instruction shows that the instruction misdirected, misled, or confused the jury, and there is a

substantial indication of prejudice. Id. We presume the jury was composed of reasonably

intelligent and attentive jurors capable of following the court’s instructions Stczte v. Wil!z`cmzs,
948 S.W.Zd 429, 433 (Mo.App.E.D. 1997); S!cu‘e v. Willz'cmzs, 611 S.W.Zd 26, 30 (Mo.banc
1981). Prejudice lies where the defendant demonstrates that in the absence of the instructional
error, there was a reasonable probability that the verdict would have been different. Sfate v.
Davies, 330 S.W.3d 775, 789 (Mo.App.W.D. 2010).

First-degree robbery is defined as forcibly stealing property and in the course thereof
using or threatening the immediate use of a dangerous instrument against any person. §
569.020.1.' Second~degree robbery is defined simply as forcibly stealing property. § 569.030.1.
And armed criminal action is defined as committing any felony under the laws of Missouri by,
\vitli, or through the use, assistance, or aid of a dangerous instrument or deadly weapon. §
571.015.1.

Since here, after the court submitted first- and second-degree robbery instructions each
with a companion armed criminal action instruction, the jury convicted Stokes offir'sI-degr'ee
robbery, there is some question whether Stol<es was prejudiced by the court’s instruction on
armed criminal action in connection with second-degree robbery. We need not resolve that
question, liowever, because we find no merit to Stokes’s argument here that it was incompatible
and erroneous to submit to the jury the offense of armed criminal action in connection with
second-degree robbery.

Stokes contends that it was error to instruct the jury that it could convict him of armed
criminal action in connection with second-degree robbery because, in his view, a finding that he
committed second-degree robbery is incompatible with a finding that a weapon was involved in

his conimissioxt of the robbery. But as various Missouri cases demonstrate, e.g'., Smte v. Busey,

’ All statutory references are to RSMo (Supp. 2012) unless otherwise indicated.
5

143 S.W.3d 6, 8 (Mo.App.W.D. 2003), it is entirely proper for a jury to convict a defendant of
armed criminal action in connection with second-degree robbery, since a finding that the
defendant forcibly stole property is compatible with a finding that the defendant committed the
robbery by, with, or through the use, assistance, or aid of a dangerous instrument or deadly
weapon

Stokes’s argument is essentially that finding a defendant guilty of second-degree robbery
means that the jury necessarily found that the defendant did not have a weapon at the time of the
coinmissioii of that felony. We disagree for two reasons. First, a weapon may be involved in the
commission of a robbery without the perpetrator specifically displaying or threatening the rise of
a deadly Weapon. In such a case, the evidence would not support giving a first-degree robbery
instruction but still might support giving a second-degree robbery instruction, since the
weaponw~tliotigli it was not displayed or its use threatened_may have been involved in the
defendant’s alleged commission of forcible stealing.

The l\/lissonri Supreme Court explained recently in S:‘cu‘e v. Jones, 479 S,W.3d 100, 106
(Mo.banc 2016), that the definition of armed criminal action under section 571.015.1 "Was
intended to reach as broadly as possible." The Cou1't concluded that the plain meaning of the
words in the statute "ma[d]e it clear that the legislature intended section 571.()15.1 to reach as far
as possible and to discourage defendants from arming themselves during the commission of
felonies by imposing a separate punishment when the defendant’s criminal purpose is assisted or
aided by ready access to a dangerous Weapon." Id. at 108. The Court held that a jury could
reasonably infer that a gun "aided" or "assisted" a defendant even if it inerely "bolster[ed] his
confidence to enter" a place where he intended to commit a felony by giving the defendant "the

read means to overcome an resistance." Ia'. at l09.
Y

Moreover, under Missouri law, a jury need not acquit the defendant of a greater offense
before considering instructions on lesser included offenses Tisizzs v. Stafe, 183 S.W.3d 207, 217
(Mo.banc 2006). Thus, convicting Stokes of second-degree robbery instead of first-degree
robbery would not necessarily have meant that the jury acquitted him of first-degree robbery.
Nor, by extension, would Stokes’s hypothetical conviction on second-degree robbery have meant
that every juror rejected that he displayed or threatened the use of an apparent deadly weapon.
As is well established, in every criminal trial by jury it is possible that the jury will decline to
convict or acquit and instead will ltang on an offense submitted to them. Accordingly, we find
that the trial court’s instruction on armed criminal action in connection with second-degree
robbery did not rnisdirect, ntislead, or confuse the jury, and thus was not erroneous

ln light of our determination that the court’s instruction on armed criminal action in
connection with second-degree robbery was not erroneous, we need not determine whether it
prejudiced Stokes given that Stokes was found guilty of first-degree 1'obbery. Point ll is denied.

Conclusion

For the reasons stated above, we affirm the judgment of the trial court.

\

l a1nes M. wd, Ju

Robert l\/l. Clayton lll, P.J., and
Lawrence E. Mooney, J., concur.

