               SUPREME COURT OF MISSOURI
                                         en banc

STATE OF MISSOURI,                         )
                                           )
                       Respondent,         )
                                           )
vs.                                        )        No. SC94554
                                           )
GARY LELAND COLEMAN,                       )
                                           )
                       Appellant.          )

           APPEAL FROM THE CIRCUIT COURT OF CALLAWAY COUNTY
                       Honorable Kevin M.J. Crane, Judge

                                Opinion issued June 16, 2015

         Gary Coleman appeals from his conviction of one count of second-degree robbery,

section 569.030, 1 on grounds that there was insufficient evidence that he forcibly stole

money from a bank. The judgment is affirmed.

                                            Facts

         In October 2012, Mr. Coleman walked into a bank, rested his forearm on the

counter, handed the bank teller a plastic grocery sack, and said, “I need you to do me a

favor. Put the money in this bag.” The teller placed $1,472 in the bag. An assistant

manager approached Mr. Coleman. Mr. Coleman told her, “Ma’am, stop where you are

and don’t move any farther.” The assistant manager complied. Mr. Coleman took the



1
    All statutory citations are to RSMo 2000.
bag of money and ran out of the bank. The entire encounter lasted approximately 45

seconds. Mr. Coleman was arrested in Texas and extradited to Missouri. Mr. Coleman

admitted to police that he was the man in the bank surveillance photographs and that he

had taken the money from the bank.

       Mr. Coleman was charged as a persistent offender with one count of second-

degree robbery pursuant to section 569.030.1. Mr. Coleman waived his right to a jury

trial. He was tried by the court and found guilty as charged. The court sentenced

Mr. Coleman as a persistent offender to a term of ten years imprisonment.

       Mr. Coleman appeals. In his only point on appeal, Mr. Coleman argues that there

was insufficient evidence to support his conviction for second-degree robbery because he

did not forcibly steal the money through the use or threatened use of force.

                                    Standard of Review

       Appellate review of a claim that there is insufficient evidence to support a

conviction “is limited to a determination of whether there is sufficient evidence from

which a reasonable juror might have found the defendant guilty beyond a reasonable

doubt.” State v. Stover, 388 S.W.3d 138, 146 (Mo. banc 2012) (quoting State v. Oliver,

293 S.W.3d 437, 444 (Mo. banc 2009)). In applying this standard, “the Court accepts as

true all of the evidence favorable to the state, including all favorable inferences drawn

from the evidence and disregards all evidence and inferences to the contrary.” Id.

                                         Analysis

       Section 569.030 provides in pertinent part: “A person commits the crime of

robbery in the second degree when he forcibly steals property.” A person “forcibly
steals” if “in the course of stealing … he uses or threatens the immediate use of physical

force upon another person for the purpose of” either defeating resistance to the theft or

compelling the surrender of the property. Section 569.010(1). Therefore, to support a

second-degree robbery conviction, there must be evidence establishing beyond a

reasonable doubt that the defendant used physical force or threatened someone with the

immediate use of physical force to accomplish the theft.

       Mr. Coleman argues that there is insufficient evidence that he forcibly stole the

money because he neither threatened nor attempted to threaten the bank teller or the

assistant manager. Mr. Coleman asserts that he simply walked into the bank, asked for

money and then left the bank once the teller gave him the bag of money.

       In State v. Brooks, 446 S.W.3d 673, 676-77 (Mo. banc 2014), this Court held that

there was sufficient evidence to support a conviction for second-degree robbery because

the defendant walked into a bank wearing sunglasses, slammed his hand on the counter,

demanded money and told the teller to “get back here” when she went to retrieve money

from a drawer at the drive-through window. Mr. Coleman asserts that his case is

distinguishable from Brooks because, unlike the defendant in Brooks, Mr. Coleman did

not make any threatening physical gestures or raise his voice in a threatening manner.

Mr. Coleman accurately describes the factual distinctions between this case and Brooks,

but these distinctions do not dictate a different result.

       First, as this Court recognized in Brooks, determining the existence of a threat is

an objective test that depends on whether a reasonable person would believe the

defendant’s conduct was a threat of the immediate use of physical force. Id. at 676.

                                               3
Banks are regular targets of robberies, and bank employees have a heightened awareness

of security threats. Id. A demand for money in that context is an implicit threat of the

use of force in and of itself. Id., citing United States v. Gilmore, 282 F.3d 398, 402–03

(6th Cir. 2002) (stating that oral or written demands for money in a bank “carry with

them an implicit threat: if the money is not produced, harm to the teller or other bank

employee may result”).

       Second, whether such an implicit threat would itself be sufficient depends on the

facts of the case. Here, when viewed in context, they provide further evidence that

Mr. Coleman forcibly stole the money by means of an actual or attempted threat.

Mr. Coleman approached the bank teller, kept one hand concealed, demanded money to

which he had no lawful right, and directed the branch manager not to move any farther

when she approached to investigate the situation. These facts and the inferences from

those facts support the conclusion that a reasonable person would perceive

Mr. Coleman’s actions as threatening and, as a result, would comply with his directive to

place the money in the bag. To hold otherwise, this Court would have to hold that the

only reasonable inference that could be drawn was that Mr. Coleman’s actions were

nothing more than a mere request for some of the bank’s money. There was sufficient

evidence to support the conviction.

       Mr. Coleman also argues that Brooks should be overruled because the case stands

for the proposition the every theft of money from a bank constitutes second-degree

robbery. Neither Brooks nor this case holds that all thefts of money from a bank

necessarily involve forcible stealing and, therefore, constitute robbery. Instead, these

                                             4
cases recognize that context matters. The objective circumstances attending the unlawful

demand of money from a bank are often such that there is a strong implication of a threat.

As in Brooks, the fundamental problem with Mr. Coleman’s version of events is that it

contradicts the facts and inferences from those facts that were found by the trial court

acting in its capacity as the finder of fact. To adopt Mr. Coleman’s version of events, this

Court would have to hold that the trial court’s finding that Mr. Coleman forcibly stole the

money by means of an actual or attempted threat is unsupported by the record and rests

on forced or speculative inferences. This Court declines to do so.

                                        Conclusion

       There was sufficient evidence supporting the trial court’s finding that

Mr. Coleman committed the crime of robbery in the second-degree because he forcibly

stole the money by threatening the immediate use of physical force for the purpose of

both defeating resistance to the theft of the money and compelling its surrender.

       The judgment is affirmed.

                                                 _________________________________
                                                 Richard B. Teitelman, Judge

Russell, C.J., Fischer, Draper, and
Wilson, JJ., concur; Breckenridge, J.
dissents in separate opinion filed;
Stith, J., concurs in opinion of
Breckenridge, J.




                                             5
               SUPREME COURT OF MISSOURI
                                        en banc
STATE OF MISSOURI,                          )
                                            )
                       Respondent,          )
                                            )
v.                                          )     No. SC94554
                                            )
GARY LELAND COLEMAN,                        )
                                            )
                       Appellant.           )

                                    DISSENTING OPINION

         I respectfully dissent from the holding of the majority opinion that there is

sufficient evidence to prove that Gary Coleman forcibly stole money from a bank. He is

charged with committing the class B felony of robbery in the second degree in violation

of section 569.030, 1 which provides that “[a] person commits the crime of robbery in the

second degree when he forcibly steals property.” The element of that crime at issue in

this case is the term “forcibly steals.” The definition of “forcibly steals” is found in

section 569.010(1):

         [A] person “forcibly steals”, and thereby commits robbery, when, in the
         course of stealing, . . . he uses or threatens the immediate use of physical
         force upon another person for the purpose of:

         (a) Preventing or overcoming resistance to the taking of the property or to
         the retention therefore immediately after the taking; or


1
    Unless otherwise indicated, all statutory references are to RSMo 2000.
       (b) Compelling the owner of such property or another person to deliver up
       the property or to engage in other conduct which aids in the commission of
       the theft[.]

       There is no claim that Mr. Coleman actually used physical force on another person

to effectuate the stealing of money from the bank. Rather, the majority opinion finds that

Mr. Coleman’s conduct of keeping one hand concealed, 2 demanding money to which he

had no lawful right, and directing the branch manager not to move any farther is

sufficient evidence that his conduct was an actual or attempted threat that he would use

physical force. In so holding, it finds that “a reasonable person would perceive his

actions as threatening and, as a result, would comply with his directive to place the

money in the bag.”

       I agree that any victim of a bank robbery would reasonably be in fear that the

victim is in danger and, while the bank robbery is in progress, there was an ongoing,

inherent threat that Mr. Coleman would decide to use force. That reasonable perception

is supported by reports of countless crimes in which the perpetrators needlessly decide to

injure or kill victims and bystanders during the commission of robberies. The reasonable

perception that a victim is in danger of the use of force during a robbery is not sufficient,

however, to meet the requirement of section 569.010(1) that the defendant “uses or

threatens the immediate use of physical force upon another person.” (Emphasis added).

       The dictionary defines “physical” as “of or relating to the body,” Webster’s Third

New International Dictionary 1706 (1993), and “force” as “power, violence, compulsion,

2
 When asked at trial where Mr. Coleman’s hands were, the bank teller stated, “The one
was above the counter and the other was below.” The majority opinion characterizes this
evidence as Mr. Coleman keeping his hand “concealed.”

                                             2
or constraint exerted upon or against a person or thing,” id. at 887. The dictionary

definition of “immediate” is “occurring, acting, or accomplished without loss of time:

made or done at once: INSTANT.” Id. at 1129. Mr. Coleman’s conduct of having his

hand below the counter, demanding money to which he has no lawful right, and directing

the branch manager not to move any farther is insufficient to prove that he threatened

immediate use of power, violence, compulsion or constraint [against the bank teller or

branch manager].     Therefore, there was insufficient evidence that he threatened the

“immediate” use of “physical force,” which was required to convict him. 3

       The effect of finding that there is insufficient evidence that Mr. Coleman forcibly

stole the money from the bank is that he would be guilty of only the lesser-included crime

of stealing. See section 570.030, RSMo Supp. 2012. While it seems unlikely that the

legislature would intend that a bank robber be guilty only of stealing, this Court must

determine the intent of the legislature from the plain and ordinary meaning of the words

the legislature used in the statute. State v. Moore, 303 S.W.3d 515, 520 (Mo. banc 2010).

In other words, this Court must enforce the laws as the legislature writes them and cannot


3
  In State v. Brooks, this Court found sufficient evidence to support a conviction of
robbery in the second degree when the defendant walked into a bank wearing a disguise,
handed the teller a note that read “50 & 100’s, No Bait Bills, Bottom Drawer,” and
slammed his hand down on the bank counter while telling the teller to “get back here.”
446 S.W.3d 673, 676-77 (Mo. banc 2014). Specifically, the Court found the defendant’s
slamming his hand forcefully on the counter “could be considered a threat of immediate
physical force to [the teller] should she refuse to comply.” Id. at 677. Unlike in Brooks,
there is no evidence supporting a finding that there was a threat of immediate physical
force. While the majority opinion states that the sufficiency of a threat depends on the
facts of a particular case, its finding of sufficient evidence in this case would essentially
lead to a finding of forcible stealing in any theft of money from a bank without requiring
evidence of a threat of the immediate use of physical force.

                                             3
rewrite a law based on the Court’s belief of the legislature’s intent that is contrary to the

plain and ordinary meaning of the law. State v. Rowe, 63 S.W.3d 647, 650 (Mo. banc

2002). Accordingly, I would find that Mr. Coleman’s conviction for the class B felony of

robbery in the second degree should be reversed for insufficient evidence. I would

further hold that Mr. Coleman is guilty of the lesser-included offense of the class B

felony of stealing and remand his case for sentencing on that crime.



                                                  _________________________________
                                                    PATRICIA BRECKENRIDGE, JUDGE




                                             4
