                In the Missouri Court of Appeals
                        Eastern District
                                   DIVISION FOUR

STATE OF MISSOURI,                           )      No. ED99427
                                             )
       Plaintiff/Respondent,                 )      Appeal from the Circuit Court of
                                             )      St. Charles County
vs.                                          )
                                             )      Honorable Jon A. Cunningham
CLAUDE DALE BROOKS,                          )
                                             )
       Defendant/Appellant.                  )      Filed: February 18, 2014


                                   INTRODUCTION

       Defendant Claude D. Brooks was convicted in a court-tried case in the Circuit

Court of St. Charles County of robbery in the second degree, section 569.030, R.S.Mo.

(2000). On appeal, Brooks argues that the trial court erred by overruling his motion for

judgment of acquittal at the close of evidence and imposing judgment and sentence

against him for robbery in the second degree, because the State did not prove that he used

or threatened to immediately use physical force against the bank teller, as required by

section 569.010, R.S.Mo. (2000).

       We vacate Brooks’s conviction for robbery in the second degree and enter a

conviction for stealing, section 570.030, pursuant to State v. O’Brien, 857 S.W.2d 212,

220 (Mo. banc 1993). We remand this matter to the trial court for re-sentencing

consistent with this opinion. See State v. Whalen, 49 S.W.3d 181, 189 (Mo. banc 2001).
                               STANDARD OF REVIEW

       Appellate review in a court-tried criminal case is the same as in a jury-tried

criminal case. Mo. Sup. Ct. R. 27.01(b); State v. Cooper, 108 S.W.3d 101, 103 (Mo. App.

E.D. 2003). “In reviewing the sufficiency of the evidence, the appellate court’s role is

limited to a determination of whether the state presented sufficient evidence from which a

trier of fact could have reasonably found the defendant guilty.” State v. Vandevere, 175

S.W.3d 107, 108 (Mo. banc 2005). “The evidence and all reasonable inferences

therefrom are viewed in the light most favorable to the verdict, disregarding any evidence

and inferences contrary to the verdict.” State v. Belton, 153 S.W.3d 307, 309 (Mo. banc

2005). However, this “Court may ‘not supply missing evidence, or give the [State] the

benefit of unreasonable, speculative, or forced inferences.’” State v. Whalen, 49 S.W.3d

181, 184 (Mo. banc 2001) (quoting Bauby v. Lake, 995 S.W.2d 10, 13 n.1 (Mo. App.

E.D. 1999)).

                                      FACTS

       On August 25, 2011, Brooks entered a Regions Bank in St. Charles County

wearing bulky clothing, a long-haired wig, baseball cap, and sunglasses. He approached

teller A.E. and handed her a note which read: “Fifties, hundreds, no bait money, and

bottom drawer.” When A.E. began to walk away from her station to retrieve the money,

Brooks slammed his hand down hard on the counter, telling her to “get back here.” After

explaining to Brooks that the money was elsewhere, A.E. retrieved the money and placed

it on the counter in front of Brooks. He then put the money into a bag and left the bank.

Soon thereafter, police arrested Brooks on a nearby street. Officers found the stolen

money in a bag on Brooks’s person, and the wig and cap in a storm drain not far away.




                                             2
        The State charged Brooks with robbery in the second degree. At his bench trial,

Brooks admitted he stole money from the bank, but argued that he did not commit

robbery in the second degree by using or threatening to immediately use physical force.

At the close of evidence, Brooks moved for judgment of acquittal, arguing there was

insufficient evidence to convict him of second-degree robbery, because he did not use or

threaten the use of physical force. The trial court denied the motion, stating Brooks’s

unusual knowledge of bank procedure and gesture of slamming his hand down on the

bank counter “show[ed] an actual, immediate threat of physical force.” The trial court

found Brooks guilty of robbery in the second degree and sentenced him to 25 years’

imprisonment. This appeal follows.

                                        DISCUSSION

        In his sole point, Brooks argues the trial court erred by overruling his motion for

judgment of acquittal at the close of evidence, because there was insufficient evidence to

prove that he used or threatened to immediately use physical force in the act of stealing as

required by section 569.010. The State claims there was sufficient evidence in the trial

record to prove that Brooks threatened the immediate use of physical force.

        Section 569.030 provides in pertinent part that “[a] person commits the crime of

robbery in the second degree when he forcibly steals property.”            The term “forcibly

steals” is defined under section 569.010(1), in pertinent part, as follows: “[A] person

‘forcibly steals’ . . . when, in the course of stealing . . . he uses or threatens the immediate

use of physical force upon another person” either to defeat resistance to the theft or to

compel the surrender of the property.” (emphasis added).




                                               3
         As authority for his argument that the evidence in the record does not support a

conviction of second-degree robbery, Brooks directs this Court to Patterson v. State, 110

S.W.3d 896 (Mo. App. W.D. 2003), for a discussion of the meaning of the term “forcibly

steals.” There, the Western District granted the defendant’s motion for post-conviction

relief and reversed his conviction for forcible stealing, because the defendant’s attorney

was ineffective in submitting to the jury an improperly worded lesser offense instruction

for stealing. Id. at 900-01. The court noted the lesser offense of “stealing is transformed

into the greater offense of second degree robbery when the stealing is accomplished

‘forcibly.’” Id at 901 (quoting State v. Ide, 933 S.W.2d 849, 853 (Mo. App. W.D. 1996)).

The court then summarized the type of factual scenarios in which Missouri courts have

found that the defendant threatened the immediate use of physical force:

          [t]he requisite threat of physical force may be implied from the fact that
         the defendant displayed a weapon, engaged in behavior that gave the
         appearance that he was armed, or used of phrases like, “This is a holdup,”
         or that it is a “stickup.” Furthermore, it does not matter whether the
         defendant is capable of inflicting the physical harm threatened upon the
         victim. For example, it is enough that the robber flourishes a harmless
         imitation pistol or falsely pretends to be pointing a pistol supposedly
         concealed in his pocket.1

Id. at 904-905 (internal citations omitted). Brooks argues that none of these scenarios is

present in the instant case.

         Brooks also cites State v. Tivis, 884 S.W.2d 28, 30 (Mo. App. W.D. 1994), and

State v Carter, 967 S.W.2d 308 (Mo App. E.D. 1998) in support of his argument. In

Tivis, 884 S.W.2d at 30, the Western District found that the defendant did not forcibly

steal by yanking a purse from the victim’s shoulder, because the defendant did not make


         1
           Contrary to the dissent’s contention, the court in Patterson does not suggest—nor do we suggest
infra—that this list is exclusive or exhaustive of all fact scenarios in which courts could reasonably find
that the defendant made an implied threat of immediate physical force.


                                                     4
explicit threats or physically struggle with the victim. The State argued the fact that the

defendant put the victim in fear was sufficient evidence to prove that the defendant

committed robbery. Id. The Court rejected this argument, noting that the statute “requires

the use or threatened use of physical force,” and evidence of the defendant’s purse

snatching alone did not meet that standard. Id.

        Similarly, in Carter, 967 S.W.2d at 309, this Court reversed and remanded the

defendant’s conviction for second degree robbery where the defendant demanded that the

victim give him her purse and then reached into her pocket to take it. Carter held that

there was insufficient evidence to find that the defendant used or threatened the

immediate use of physical force, because the “evidence presented at trial showed that

Defendant never threatened or hit Victim and Defendant did not display a weapon.” Id.

        In response to Brooks’s argument that there is insufficient evidence to support a

finding that he threatened the immediate use of physical force, the State cites State v.

Rounds, 796 S.W.2d 84, 86 (Mo. App. E.D. 1990), and State v. Duggar, 710 S.W.2d 921,

922 (Mo. App. S.D. 1986). In Rounds, 796 S.W.2d at 86, this Court held there was

sufficient evidence to convict the defendant of using or threatening the immediate use of

physical force, because the “defendant had his hand in his pocket, implying he was armed

with a weapon . . . . warned victim ‘not to be a hero . . . or [defendant] was going to blow

[victim’s] head off’’ . . . . [and v]ictim felt ‘pretty nervous.’” (third and fourth alterations

in original). In Duggar, 710 S.W.2d at 922, the Southern District held that there was

sufficient evidence of threatening physical force, because the defendant “had a firm

purpose, an unusual knowledge of the internal security system in the cash register, and a

hand concealed in his jacket,” giving the appearance that he had a gun.




                                               5
       In addition, the State argues that Brooks’s conduct raised the inference of a threat

of immediate harm because he put the victim in fear. The State cites to State v. Jolly, 820

S.W.2d 734, 736 (Mo. App. E.D. 1991), State v. Lybarger, 165 S.W.3d 180, 186-87 (Mo.

App. W.D. 2005), and State v. Applewhite, 771 S.W.2d 865, 868 (Mo. App., E.D. 1989),

in support of this proposition. In Jolly, 820 S.W.2d at 736, this Court found that no

substantial evidence existed to support a jury instruction for stealing rather than second-

degree robbery, because the evidence showed that the defendant struggled with the

victim, causing the victim’s fingernail to be ripped off. In Lybarger, 165 S.W.3d at 186-

87, the Western District held that there was sufficient evidence to support a conviction

for second-degree robbery, because the defendant told the victim, “This is a holdup,” and

kept his hand in his pocket as if he had a gun. In Applewhite, 771 S.W.2d at 868, this

Court held that there was sufficient force to support the charge of second-degree robbery,

where the defendant pushed a store manager, knocking him up against the exit as he fled.

       We believe that each of the cases cited by the State is factually distinguishable

from the instant case. In Duggar, 710 S.W.2d at 922, the defendant had his hand in his

pocket while demanding money, presumably suggesting the presence of a weapon. In

Rounds, 796 S.W.2d at 86, the “defendant had his hand in his pocket, implying he was

armed with a weapon . . . . [and threatened] to blow [victim’s] head off.’” (third alteration

in original). Similarly, in Lybarger, 165 S.W.3d at 186-87, the defendant held his hand in

his pocket as if he had a gun, and explicitly told the victim, “This is a holdup.” Here, we

have no evidence of a hand in a pocket or explicit threats of physical force. Finally, in

Jolly, 820 S.W.2d at 736, the defendant physically struggled with the victim, and in




                                             6
Applewhite, 771 S.W.2d at 868, the defendant knocked the victim aside as he fled. Here,

in contrast, Brooks did not touch or struggle with the victim.

        We believe that the Western District in Patterson best summarized the

circumstances in which we may find an implicit threat of force. Though not an exhaustive

list, Patterson, 110 S.W.3d at 904, explained that a threat of force “may be implied from

the fact that the defendant displayed a weapon, engaged in behavior that gave the

appearance that he was armed, or used [a] phrase[] like, ‘This is a holdup.’”

        With these guidelines in mind, we now move to the facts of the instant case. Here,

the record shows that Brooks spoke to A.E. in a low tone throughout the encounter, never

raised his voice, and did not verbally threaten A.E. with physical force. She testified that

Brooks never tried to touch or strike her, never indicated or implied that he had a weapon

by actions such as putting a hand in his pocket, grabbing his waistband, or reaching

inside his clothing, and that Brooks kept his hands on the counter throughout the incident.

        Based on this evidence, a trier of fact could not reasonably have found that

Brooks “use[d] or threaten[ed] the immediate use of physical force upon another person,”

as required by the statute for robbery in the second-degree, section 569.030. None of the

circumstances described in Patterson are present in the instant case. There is no evidence

that Brooks: displayed a weapon, gave the appearance that he possessed a weapon, or

used a phrase like “this is a holdup.” Moreover, our search of Missouri jurisprudence

reveals no case in which a defendant was convicted of second degree robbery because of

a disguise, a hand slap on a counter, or the fact that the incident occurred during business

hours at a bank.2 Instead, we believe that there must be some affirmative conduct on the


        2
          The dissent suggests that we should follow the reasoning of United States v. Gilmore, 282 F.3d
398, 402 (6th Cir. 2002), and hold that “a demand for money in th[e] context [of a bank robbery] is an


                                                    7
part of the Brooks, beyond the mere act of stealing, which communicates that the he will

“immediately” employ “physical force” if the victim “resist[s] . . . the taking of the

property.” § 569.010 (emphasis added). Accordingly, we vacate Brooks’s conviction for

robbery in the second degree, section 569.030, because a trier of fact could not have

reasonably found that Brooks “forcibly” stole money from the bank within the meaning

of section 569.010.

         As a final matter, the State asks that we enter a conviction for stealing, section

570.030, in the event that we overturn Brooks’s conviction. Pursuant to O’Brien, 857

S.W.2d at 220:

         [w]here a conviction of a greater offense has been overturned for
         insufficiency of the evidence, the reviewing court may enter a conviction
         for a lesser offense if the evidence was sufficient for the jury to find each
         of the elements and the jury was required to find those elements to enter
         the ill-fated conviction on the greater offense.

Id. Here, in order for the trial court to have found that Brooks committed the crime of

robbery in the second degree, the court must necessarily have found that Brooks also

committed the crime of stealing.3 Thus, the undisputed evidence was sufficient for a fact-



implicit threat of harm in and of itself.” But Gilmore’s reasoning is inapposite. Gilmore dealt with
application of the federal “Bank Robbery and Incidental Crimes” statute, 18 U.S.C. § 2113 (2013), which
specifically criminalizes stealing from a bank by means of intimidation. Id. § 2113(a). To determine if the
defendant used “intimidation,” federal courts ask “whether an ordinary person in the [bank] teller’s position
could reasonably infer a threat of bodily harm from the defendant’s acts.” Gilmore, 282 F.3d at 402. On the
other hand, Missouri, which has no specialized bank robbery statute, requires us to determine whether an
implied threat of immediate physical force exists based on the defendant’s actions, see section 569.010,
rather than the reaction of a putative victim, such as the teller in the instant case.
          3
            As noted supra, “[a] person commits the crime of robbery in the second degree when he forcibly
steals property.” § 569.030. “[A] person ‘forcibly steals,’ and thereby commits robbery, when in the course
of stealing, as defined in section 570.030, he uses or threatens the immediate use of physical force upon
another person . . . .” § 569.010. Thus, the elements of stealing are by definition a part of the crime of
robbery.
          Furthermore, the undisputed facts show that Brooks entered a bank, demanded money that was not
his own, received that money, and fled. In fact, Brooks counsel conceded in closing arguments that there
were very few issues in this case, not whether it was Mr. Brooks, not whether there was money taken, not
how much money was taken, was there a crime, etc. The only issue was [whether] this in fact [was] a
robbery second degree . . . due to forcible theft rather than a stealing.


                                                     8
finder to find that Brooks committed the crime of stealing by “appropriat[ing]

property . . . of another with the purpose to deprive him or her thereof, either without his

or her consent or by means of deceit or coercion.” § 570.030.1. Accordingly, we enter a

conviction for the lesser offense of stealing, section 570.030.

                                     CONCLUSION

       For the foregoing reasons, we vacate Brooks’s conviction for robbery in the

second degree, section 569.030, and enter a conviction for the lesser offense of stealing,

section 570.030, pursuant to O’Brien, 857 S.W.2d at 220. We remand this matter to the

trial court for re-sentencing consistent with this opinion. See Whalen, 49 S.W.3d at 189.



                                              ______________________________
                                              Lisa S. Van Amburg, Presiding Judge

Patricia L. Cohen, Judge, concurs
Gary M. Gaertner, Jr., Judge, dissents in separate opinion.




                                             9
                In the Missouri Court of Appeals
                        Eastern District
                                   DIVISION FOUR

STATE OF MISSOURI,                           )       No. ED99427
                                             )
       Plaintiff/Respondent,                 )       Appeal from the Circuit Court of
                                             )       St. Charles County
vs.                                          )
                                             )       Honorable Jon A. Cunningham
CLAUDE DALE BROOKS,                          )
                                             )
       Defendant/Appellant.                  )       Filed: February 18, 2014


                                        DISSENT

       I respectfully dissent. Because I believe the element of force is present when

viewing the evidence in the light most favorable to the verdict, I would affirm.

       Specifically at issue is whether there was sufficient evidence that Brooks “use[d]

or threaten[ed] the immediate use of physical force” upon the teller, as required by the

definition of forcible stealing in Section 569.010(1), RSMo. (2000). The statute goes on

to provide that such force or threat of force will qualify as forcible stealing when it is

used to: “prevent[] or overcom[e] resistance to the taking of the property . . . or [to]

compel[] the [victim] to deliver up the property.” Section 569.010(1)(a)-(b). Regarding

a threat of force, the requisite threat may be actual or implied.       E.g., Patterson v.

State,110 S.W.3d 896, 904 (Mo. App. W.D. 2003).
