           IN THE MISSOURI COURT OF APPEALS
                    WESTERN DISTRICT
STATE OF MISSOURI,                      )
                                        )
             Respondent,                )
                                        )
      v.                                )     WD76520
                                        )
GARY LELAND COLEMAN,                    )     Opinion filed: September 30, 2014
                                        )
             Appellant.                 )

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

               Before Division One: Joseph M. Ellis, Presiding Judge,
             Karen King Mitchell, Judge and Anthony Rex Gabbert, Judge

      Gary Coleman appeals from his conviction of one count of second degree

robbery, § 569.030. For the following reasons, we vacate Appellant's conviction for

robbery in the second degree; enter a conviction for the lesser offense of stealing, §

570.030; and remand the cause to the trial court for re-sentencing consistent with our

opinion.

      At 9:18 a.m. on October 6, 2012, Appellant walked into a branch office of Bank

Star One in New Bloomfield, Missouri wearing sunglasses. He walked straight up to

teller Marla Rothove, rested his forearm on the counter, leaned slightly forward, handed

Rothove a plastic grocery sack, and said, "I need you to do me a favor. Put the money

in this bag." He spoke in a low, serious tone. Rothove took the bag, opened her
drawer, and put $1,472.00 in the bag. While this was going on, the assistant branch

manager, Sharon Holland, approached.        When she was a few feet from Rothove,

Appellant told her, "Ma'am, stop where you are and don't move any farther." Holland

complied with those instructions. Rothove handed Appellant the bag of money, and he

ran out of the bank. The entire encounter lasted approximately forty-five seconds.

        Appellant was eventually arrested in Texas and extradited to Missouri. When

interviewed by the police and shown the surveillance photos of the encounter, Appellant

admitted that he was the man in the pictures and that he had taken the money from the

bank.

        Appellant was subsequently charged as a persistent offender with one count of

second-degree robbery, § 569.030.1. After waiving his right to jury trial, Appellant was

tried by the court and found guilty as charged. The court sentenced Appellant as a

persistent offender to a term of ten years imprisonment.

        In his sole point on appeal, Appellant challenges the sufficiency of the evidence

to support his conviction for second-degree robbery. "In reviewing the sufficiency of the

evidence in a court-tried criminal case, the same standard of review is applied as in a

jury tried case." State v. Beam, 334 S.W.3d 699, 707 (Mo. App. E.D. 2011). "When a

criminal defendant challenges the sufficiency of the evidence to support his conviction,

our review is limited to determining whether sufficient evidence was admitted at trial

from which a reasonable trier of fact could have found each element of the offense to

have been established beyond a reasonable doubt." State v. Whites, 402 S.W.3d 140,

142 (Mo. App. W.D. 2013) (internal quotation omitted). In making that determination,

this Court "accepts as true all of the evidence favorable to the state, including all




                                            2
favorable inferences drawn from the evidence and disregards all evidence and

inferences to the contrary." State v. Oliver, 293 S.W.3d 437, 444 (Mo. banc 2009)

(internal quotation omitted). However, "[t]he Court may not supply missing evidence, or

give the State the benefit of unreasonable, speculative, or forced inferences." State v.

Buford, 309 S.W.3d 350, 354 (Mo. App. S.D. 2010) (internal quotation omitted).

         "A person commits the crime of stealing if he or she appropriates property or

services 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. "Under Missouri law, the

offense of stealing is transformed into the greater offense of second degree robbery

when the stealing is accomplished 'forcibly.'" Patterson v. State, 110 S.W.3d 896, 904

(Mo. App. W.D. 2003); see also § 569.030.1 ("A person commits the crime of robbery in

the second degree when he forcibly steals property.").        "A person 'forcibly steals,'

thereby committing second degree robbery, if, 'in the course of stealing [as defined in

section 570.030]' the person 'uses or threatens the immediate use of physical force

upon another person for the purpose of . . . [p]reventing or overcoming resistance to the

taking of the property or . . . compelling the owner of such property or another person to

deliver up the property." Patterson, 110 S.W.3d at 904 (quoting § 569.010(1)). Thus,

in order 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 in order to accomplish the

theft.

         On appeal, Appellant contends that the evidence did not support a finding that he

used physical force or threatened anyone in the bank with the immediate use of




                                             3
physical force during the incident and that the evidence, therefore, does not support his

conviction for second-degree robbery.              The State concedes that Appellant did not

actually use any physical force during the incident but maintains that the evidence

supports a finding that Appellant threatened Rothove and/or Holland with the immediate

use of physical force. Accordingly, the sole question on appeal is whether the evidence

was sufficient to establish beyond a reasonable doubt that Appellant threatened the

immediate use of physical force against one or both of the two ladies in order to compel

Rothove to give him the money in her drawer and/or to prevent resistance to his taking

of the money.

        To support a conviction for second-degree robbery based upon the threatened

use of physical force, there must be evidence of some affirmative conduct on the part of

the defendant, beyond the mere act of stealing, which communicates that he will

"immediately" employ "physical force" if the victim fails to deliver up the property or

otherwise resists his taking of the property.1            "[T]he threat of physical harm need not

be explicit; it can be implied by words, physical behavior or both." Id. (internal quotation

omitted).

        Appellant made only two statements while in the bank. While handing Rothove a

plastic bag, he stated, "I need you to do me a favor. Put the money in this bag." And
1
  The dissent maintains that the statute does not require any intent on the part of the defendant to
threaten anyone. A "threat" is defined as "[a] communicated intent to inflict physical or other harm on
any person or property" or "[a] declaration of an intention to injure another or his property by some
                                                     th
unlawful act." Black's Law Dictionary 1480 (6 ed. 1990) (emphasis added). Thus to threaten
someone, an individual must affirmatively communicate their intent to do harm to the victim. Moreover,
for purposes of "forcibly stealing property," the communication of the intent to do harm must be made for
the purpose of obtaining property against the victim's will. Accordingly, the statutory definition requires
proof that a defendant affirmatively communicated his or her intent to use physical force against the victim
and that the defendant's purpose in communicating such intent was to prevent or overcome resistance to
the taking of the property. See State v. Tivis, 884 S.W.2d 28, 30 (Mo. App. E.D. 1994) (rejecting the
State's argument that evidence that the victim was placed in fear of injury was sufficient to support a
conviction for second degree robbery, noting that § 569.030.1 required evidence of the use or threatened
use of immediate physical force).


                                                     4
when Holland approached, he told her, "Ma'am, stop where you are and don't move any

farther." Both statements were made in a low, serious tone.

        The State argues in conclusive fashion, without further explanation, that the

statements made by Appellant are indistinguishable from handing a teller a note saying,

"This is a holdup." See State v. Clark, 790 S.W.2d 495, 497 (Mo. App. E.D. 1990);

Patterson, 110 S.W.3d at 904 (noting that a threat of physical force may be implied

from the use of phrases like, "This is a holdup," or "This is a stickup."). Contrary to the

State's contention, however, these comments are readily distinguishable.                               "The

expression 'holdup,' in its ordinary significance, means a forcible detention of the person

held with the intent to commit robbery and implies the necessary force to carry out that

purpose."2 Clark, 790 S.W.2d at 497 (internal quotation omitted). Thus, the use of the

term itself implies possession of a weapon and the willingness to use force.                            The

ordinary meaning of the terms and phrases used by Appellant do not convey a similar

message.

        The State also attempts to argue that the statements made by Appellant, when

viewed in the context of the situation and considering his demeanor, are sufficient to

support a finding that Appellant intended for Rothove and Holland to feel threatened and

to believe that he would use physical force against them if they failed to comply with his

demands. In support of that assertion, the State cites United States v. Gilmore, 282

F.3d 398, 402 (6th Cir. 2002), wherein the 6th Circuit stated that "[d]emands for money

[from a bank employee] amount to intimidation because they carry with them an implicit

threat: if the money is not produced, harm to the teller or other bank employee may


2
 Similarly, "stick up" is defined as "to hold up (as at the point of a gun) in order to rob." Webster's Third
New International Dictionary 2242 (1961).


                                                     5
result."   Id.   Gilmore, however, involved the application of a federal bank robbery

statute, 18 U.S.C. § 2113(a), which criminalizes the taking of money or property from a

federally insured financial institution "by force and violence, or by intimidation."

(emphasis added)       "Whether intimidation under 18 U.S.C. § 2113(a) exists in a

particular case is determined by an objective test: whether an ordinary person in the

teller's position could reasonably infer a threat of bodily harm from the defendant's acts."

Gilmore, 282 F.3d at 402.

       Missouri does not have a specialized bank robbery statute, and under § 569.010

and Missouri case law, whether a defendant has impliedly threatened the immediate

use of physical force for the purpose of overcoming resistance to the taking of property

is determined by the defendant's actions rather than the reactions and perceptions of

the putative victim. See State v. Carter, 967 S.W.2d 308, 308-09 (Mo. App. E.D. 1998)

(reversing a second degree robbery conviction based upon insufficiency of the evidence

to support a finding that the defendant used or threatened the use of force where the

defendant approached a woman and her grandson in a parking lot at night, said "Give

me your purse," and, after being told the purse was in her pocket, reached into the

pocket and removed it before running away; noting that "[t]he evidence presented at trial

showed that Defendant never threatened or hit Victim and Defendant did not display a

weapon"); Patterson, 110 S.W.3d at 904 (noting that "[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 phrases like, 'This is a

holdup,' or that it is a 'stickup'"). Indeed, in State v. Tivis, 884 S.W.2d 28, 30 (Mo. App.

W.D. 1994), this Court expressly rejected the State's argument that evidence that the




                                             6
victim was placed in fear of injury was sufficient to support a conviction for second

degree robbery. The court noted that, while the previous version of the robbery statute

allowed for a robbery conviction based upon the victim being placed in fear of

immediate injury, the current version of § 569.030.1 required the affirmative use or

threatened use of immediate physical force. Tivis, 884 S.W.2d at 30.                           Thus, a

conviction for second degree robbery under § 569.030.1 requires evidence beyond a

reasonable doubt that the defendant communicated, through affirmative conduct and/or

words, an intent to immediately use physical force if the victim fails to deliver up the

property or otherwise resists his taking of the property.                   Accordingly, Gilmore is

inapposite.3

        As his verbal statements are insufficient to support a finding of a threat of

physical force, we are left to consider whether Appellant's actions and nonverbal

communication add enough to the situation for a trier of fact to infer beyond a

reasonable doubt that he threatened Rothove and/or Holland with the use of immediate

physical force.      Multiple security cameras recorded Appellant's actions inside and

outside the bank. That footage was submitted into evidence at trial. None of it reflects

Appellant ever placed a hand in a pocket or otherwise made any type of physical

gesture that could be interpreted as intending to indicate that he had a weapon or was

poised to attack.4 He walked into the bank with his arms swaying freely at his side,


3
  This same conclusion was reached by the Eastern District of this Court in State v. Brooks, No.
ED99427, 2014 Mo. App. LEXIS 156 at *12 (Mo. App. E.D. Feb. 18, 2014), which has been accepted on
transfer by the Missouri Supreme Court.
4
  While the State attempts to make something of Rothove's testimony that she was scared because she
could not see one of his hands at times during the encounter because of the counter between them,
Rothove's sightline is not an affirmative action on the part of the defendant that could be viewed as a
threat. The simple fact that the chest-high counter obscured the teller's view of one of Appellant's hands
is simply not the functional equivalent of Appellant making a physical gesture suggestive of the
possession of a weapon.


                                                    7
walked up to the counter, placed one arm on the counter, leaned slightly on it, handed

Rothove a plastic bag, and then spoke with her. After receiving the money, Appellant

turned and walked quickly out of the bank and then ran away. In short, Appellant's body

language does not support a finding beyond a reasonable doubt that Appellant

threatened anyone with the immediate use of physical force.

        The evidence in this case is insufficient to support a finding beyond a reasonable

doubt that Appellant communicated to Rothove and/or Holland his intent to immediately

employ physical force if they failed to deliver up the money or otherwise resisted his

taking of it.

        There must be some affirmative conduct on the part of the defendant, beyond the

mere act of stealing, which communicates that he will immediately employ "physical

force" if the victim "resist[s] . . . the taking of the property." § 569.010.   In Patterson v.

State, 110 S.W.3d 896 (Mo. App. W.D. 2003), this Court listed multiple actions on the

part of the defendant from which an implicit threat of force could be inferred. While not

an exhaustive list, Patterson 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." Id. at 904

(internal citation omitted).

        The case at bar evidences no words or actions on the part of Appellant similar to

those noted in Patterson as supportive of an inference that the defendant threatened

someone with the immediate use of physical force.            Clearly, a substantial aspect of

why Missouri courts have required some affirmative conduct on the part of the

defendant communicating to the victim that defendant will immediately employ physical




                                               8
force is because we have two statutes and two offenses, stealing in violation of §

570.030.1, and robbery in the second degree in violation of § 569.030.1. If, as the State

argues, no affirmative conduct is required, then virtually all stealing other than by means

of deceit will be the same as robbery in the second degree.                             In other words,

appropriating the property of another with the purpose to deprive the other thereof by

means of coercion, which is criminalized in § 570.030.1, becomes essentially

meaningless if virtually all verbally coercive conduct is treated as robbery in the second

degree in violation of § 569.030.1. "When interpreting statutes, courts do not presume

that the legislature has enacted a meaningless provision." Edwards v. Gerstein, 237

S.W.3d 580, 581 (Mo. banc 2007).

        For these reasons, we hold that the evidence was insufficient to support a finding

beyond a reasonable doubt that Appellant, either explicitly or implicitly, threatened

Rothove or Holland with the immediate use of physical force.5 As his conviction for


5
   Our decision is consistent with the Eastern District's recent decision in State v. Brooks, No. ED99427,
2014 Mo. App. LEXIS 156, at *12-13 (Mo. App. E.D. Feb. 18, 2014), which has been accepted on transfer
by the Missouri Supreme Court. In Brooks, the defendant entered a bank wearing bulky clothing, a long-
haired wig, a baseball cap, and sunglasses. Id. at *2. He approached a teller and handed her a note
stating: "Fifties, hundreds, no bait money, and bottom drawer." Id. at *2-3. When the teller began to walk
away to retrieve the money, the defendant slammed his hand on the counter and told her to "get back
here." Id. at *3. After the teller explained that the money the defendant wanted was elsewhere, she
retrieved the money and placed it on the counter in front of the defendant. Id. The defendant then placed
the money in a bag and left. Id. The defendant was convicted of second degree robbery. Id. at *4. On
appeal, he challenged the sufficiency of the evidence to support a finding that he had used or threatened
to immediately use physical force against the teller. Id.
         In reversing the conviction, Brooks held that "there must be some affirmative conduct on the part
of the [defendant], beyond the mere act of stealing, which communicates that he will 'immediately' employ
'physical force' if the victim 'resist[s] . . . the taking of the property.'" Id. at *11 (quoting § 569.010).
Brooks stated that this Court's decision in Patterson v. State, 110 S.W.3d 896 (Mo. App. W.D. 2003),
"best summarized the circumstances in which we may find an implicit threat of force." Id. at *10. Brooks
continued, "Though not an exhaustive list, Patterson 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.'" Id. (quoting Patterson, 110 S.W.3d at 904).
Brooks noted that none of the circumstances described in Patterson were present in that case and that a
search of Missouri case law "reveal[ed] 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." Id. at *11. Brooks held that, based upon the evidence presented, "a trier of


                                                     9
second degree robbery is, therefore, not supported by sufficient evidence, it must be

vacated.

        "[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 [trier of fact] to find each of the elements and the [trier of

fact] was required to find those elements to enter the ill-fated conviction on the greater

offense." State v. O'Brien, 857 S.W.2d 212, 220 (Mo. banc 1993). This case presents

such circumstances. "A person commits the crime of robbery in the second degree

when he forcibly steals property." § 569.030.1. "[A] person 'forcibly steals,' and thereby

commits robbery, when in the course of stealing, as defined in section 570.030, RSMo,

he uses or threatens the immediate use of physical force upon another person." §

569.010(1). Accordingly, the elements of stealing under § 570.030 are required for a

conviction for robbery, and the trial court had to have found them to have been proven

in entering its conviction of Appellant for robbery.           Because the evidence was clearly

sufficient for the trial court to have found all of the elements of the lesser offense of

stealing under § 570.030 and the trial court was required to have found all of those

elements to have entered its conviction for robbery, we enter a conviction for that

offense. The cause is remanded to the trial court for re-sentencing consistent with this

opinion.


                                                        ________________________________
                                                        Joseph M. Ellis, Judge
Gabbert, J. concurs
Mitchell, J. dissents in separate opinion filed

fact could not reasonably have found that Brooks 'used or threaten[ed] the immediate use of physical
force upon another person,' as required by the statute for robbery in the second degree." Id. at *10-11.



                                                  10
              IN THE MISSOURI COURT OF APPEALS
                      WESTERN DISTRICT
STATE OF MISSOURI,                                      )
                                                        )
                                      Respondent,       )
                                                        )    WD76520
v.                                                      )
                                                        )    OPINION FILED:
                                                        )    September 30, 2014
GARY LELAND COLEMAN,                                    )
                                                        )
                                        Appellant.      )

                                      DISSENTING OPINION

        The majority concludes that the evidence presented was not sufficient for a rational trier

of fact to find beyond a reasonable doubt that Coleman committed the crime of second-degree

robbery. But because I believe the majority misinterprets the statutory elements and fails to

consider relevant facts that, when coupled with our deferential standard of review, demonstrate

that there was sufficient evidence that Coleman knowingly engaged in conduct that threatened

the immediate use of physical force, I respectfully dissent.

     A. The elements of second-degree robbery

        The crime of second-degree robbery is committed when a person “forcibly steals

property.” § 569.030.1.1 “Forcibly steals” is defined as the use or threatened immediate use of

physical force upon another person, in the course of stealing, “for the purpose of:                        (a)
        1
         All statutory citations are to the Missouri Revised Statutes (2000), as updated by the 2011 Cumulative
Supplement.
[p]reventing or overcoming resistance to the taking of the property or to the retention thereof

immediately after the taking; or (b) [c]ompelling 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.”

§ 569.010(1). Put simply, the elements of second-degree robbery are: (1) the use or threatened

immediate use of physical force upon a person; (2) for the purpose of obtaining property against

that person‟s will.

         There is both a conduct element and a result element. The conduct element is the use or

threatened immediate use of physical force. The result element is obtaining property against the

will of another. Of the two elements, a mental state is ascribed to only one: the result element.

And that mental state is purposely.2 § 569.010(1) (“for the purpose of”). There is no mental

state prescribed in the statute regarding the conduct element.

         Section 562.021 addresses the question of what mental state is required. Generally, “if

the definition of any offense does not expressly prescribe a culpable mental state for any

elements of the offense, a culpable mental state is nonetheless required and is established if a

person acts purposely or knowingly.”                  § 562.021.3.         Subsection 3 does not apply to

second-degree robbery, however, because there is a mental state prescribed. Subsection 1 of

§ 562.021 indicates that “[i]f the definition of any offense prescribes a culpable mental state but

does not specify the conduct, attendant circumstances or result to which it applies, the prescribed

culpable mental state applies to each such material element.” This subsection, however, also

does not apply because the mental state prescribed (purposely) applies only to the result element

of the crime (obtaining property against the will of another person). Rather, the applicable

subsection is subsection 2, which provides that


         2
             “A person ‘acts purposely’, or with purpose, with respect . . . to a result . . . when it is his conscious
object . . . to cause that result.” § 562.016.2.


                                                          2
         [i]f the definition of an offense prescribes a culpable mental state with regard to a
         particular element or elements of that offense, the prescribed culpable mental
         state shall be required only as to specified element or elements, and a culpable
         mental state shall not be required as to any other element of the offense.

§ 562.021.2 (emphasis added). Thus, there is no mental state required for the conduct element of

second-degree robbery.3

         The majority finds the evidence insufficient because, in part, it believes there is no

indication that Coleman, by his acts, purposely conveyed a threat to either the teller or branch

manager.4 I believe that the majority‟s conclusion is premised upon a misapplication of the law

insofar as it requires the State to prove that the conscious object of Coleman‟s conduct was to

convey a threat. See § 562.016.2 (“A person „acts purposely[,‟] or with purpose, with respect to

his conduct . . . when it is his conscious object to engage in that conduct.”).

         While I might be persuaded to concur with the majority‟s conclusion of insufficient

evidence under the standard articulated, where the majority‟s and my analyses diverge is that I

do not believe the State is required to prove that Coleman purposely conveyed a threat to the

teller or branch manager.5 As explained above, applying a purposely standard is grafting a



         3
            As with all offenses, the conduct must still be a “voluntary act”—in other words, “[a] bodily movement
performed while conscious as a result of effort or determination.” § 562.011.2(1).
          4
            The majority characterizes the State‟s argument as suggesting “that the statements made by Appellant,
when viewed in the context of the situation and considering his demeanor, are sufficient to support a finding that
Appellant intended for Rothove and Holland to feel threatened and to believe that he would use physical force
against them if they failed to comply with his demands.” Majority op. at 5 (emphasis added). In response, the
majority concludes that “[a] conviction for second degree robbery under § 569.030.1 requires evidence beyond a
reasonable doubt that the defendant communicated, through affirmative conduct and/or words, an intent to
immediately use physical force.” Id. at 7. “The evidence in this case is insufficient to support a finding beyond a
reasonable doubt that Appellant communicated to Rothove and/or Holland his intent to immediately employ force if
they failed to deliver up the money or otherwise resisted his taking of it.” Id. at 8.
          5
            The majority disputes this interpretation based upon the definition of “threat” as a “communicated intent.”
Majority op. at 4 n.1. A “communicated intent,” however, is not the same thing as an intentional communication.
“Communication” is merely “a process by which information is exchanged between individuals.”
Merriam-Webster.com, http://www.merriam-webster.com/dictionary/communication (Last visited Sep. 5, 2014). It
consists of not only what we say but also what we do. “Nonverbal communication includes the speaker‟s body
language as well as what the speaker is not saying.” Beryl Blaustone and Carmen Huertas-Noble, LAWYERING AT
THE INTERSECTION OF MEDIATION AND COMMUNITY ECONOMIC DEVELOPMENT: INTERWEAVING INCLUSIVE LEGAL
PROBLEM SOLVING SKILLS IN THE TRAINING OF EFFECTIVE LAWYERS, 34 Wash. U. J.L. & Pol‟y 157, 180 (2010). In


                                                          3
mental state onto the conduct element that was not placed there by the legislature. Rather, I

would hold that the evidence must be sufficient to allow a rational fact finder, applying an

objective standard, to conclude that Coleman engaged in conduct that threatened the immediate

use of physical force.

    B. Relevant facts to be considered

         Although no mental state is required for the conduct element, I would nevertheless find

the evidence sufficient to meet the minimum standard of knowingly—the mental state applied

when a statute wholly lacks a culpable mental state.6 According to § 562.016.3, “[a] person „acts

knowingly[,‟] or with knowledge, . . . [w]ith respect to his conduct . . . when he is aware of the

nature of his conduct.”

         In conducting its analysis, the majority discounted the facts that the teller could not see

Coleman‟s hand, that the teller and branch manager felt afraid, that Coleman demanded money,

and that the robbery took place in a bank. I do not disagree with the notion that these facts might

carry less weight, if the standard requires Coleman to have purposely conveyed a threat. But,

under the proper standard, I believe these facts can be considered.

         Here, a rational fact finder could find that Coleman was aware that the nature of his

conduct was such that it could be perceived as threatening, even if he did not purposely convey a


requiring “affirmative conduct,” the majority is simply requiring an intentional communication where the statute
does not.
          The majority further suggests that “affirmative conduct” (i.e., an intentional communication) is required in
order to distinguish second-degree robbery from stealing by coercion. I disagree. “Stealing by coercion includes,
but is not necessarily limited to, conduct which would have constituted extortion and blackmail.” § 570.030, cmt. to
1973 proposed code. Extortion and blackmail did not necessarily entail any threats of physical harm. For example,
one could commit either extortion or blackmail by threat to reputation. See, e.g., State v. Patterson, 196 S.W. 3, 5-6
(Mo. 1917) (evidence sufficient for charge of extortion where defendant threatened to have victim unjustly
prosecuted for statutory equivalent of sodomy). It is the threat of physical harm that distinguishes second-degree
robbery from stealing by coercion.
          6
            This is not to suggest that “knowingly” is required in this context. As clearly stated in § 562.021.2, if a
culpable mental state is prescribed for one element and not others, then “the prescribed culpable mental state shall be
required only as to specified element or elements, and a culpable mental state shall not be required as to any other
element of the offense.” (Emphasis added.) My use of “knowingly” here is merely for illustration.


                                                          4
threat. Coleman, while wearing sunglasses, approached a teller in a bank, demanded money that

he had no lawful right to, kept one hand concealed, and directed the branch manager not to move

any farther when she approached to investigate the situation. It is not a novel idea to suggest that

the teller and branch manager in that situation would perceive Coleman‟s actions as threatening.7

         Even assuming that Coleman did not purposely convey a threat, clearly it was his purpose

to capitalize on the results of a perceived threat. As mentioned above, the statute requires that

the individual act purposely with respect to the result; in other words, the State had to prove that

it was Coleman‟s conscious object that the teller and branch manager would feel compelled to

deliver up the bank‟s property in response to his demand. I think it is beyond dispute that this is

the result Coleman intended when he walked into the bank and demanded money. While it is

unclear from the record what the actual consequences would have been (if any) had the teller not

turned over the money, there is at least a reasonable inference that Coleman‟s conscious object

was for her to feel compelled to deliver up the property. I think it unreasonable—and thus




         7
           Numerous federal cases interpreting the federal bank robbery statute, 18 U.S.C. § 2113, have concluded
that the mere demand for money from a teller in a bank meets a higher burden of establishing “conduct reasonably
calculated to produce fear.” See U.S. v. Henson, 945 F.2d 430 (1st Cir. 1991); U.S. v. Hickson, 16 F.3d 412 (4th Cir.
1994); U.S. v. Robinson, 527 F.2d 1170 (6th Cir. 1975); U.S. v. Gipson, 383 F.3d 689 (8th Cir. 2004); U.S. v.
Friedman, 860 F.2d 1090 (9th Cir. 1988); U.S. v. Cornillie, 92 F.3d 1108 (11th Cir. 1996).
         Several other states also deem such circumstances to constitute an implicit threat. See, e.g., State v.
Collinsworth, 966 P.2d 905, 908 (Wash. App. 1997) (“No matter how calmly expressed, an unequivocal demand for
the immediate surrender of the bank‟s money, unsupported by even the pretext of any lawful entitlement to the
funds, is fraught with the implicit threat to use force.”); State v. Losey, 2006 WL 3802925, *3 (Iowa App. 2006)
(“[Defendant‟s] demeanor, proximity to the bank teller, his note demanding money, as well as the teller‟s resulting
fear, when considered in total, support an inference of the requisite statutory intent.”); State v. Hernandez, 134 N.M.
510, 512-13 (N.M. App. 2003) (“Where a defendant points a note at the teller‟s cash drawer, keeps his other hand
hidden from view, states that the teller should give him everything, and directs the teller not to use the alarm, a
reasonable fact finder could conclude that this combination of actions threatened force and caused the teller to hand
over the contents of the cash drawer.”).
         The majority casts off the federal bank robbery cases for the sole reason that Missouri does not have a bank
robbery statute. I fail to see the distinction, as the only real difference between the bank robbery statute and our
second-degree robbery statute is the additional element the federal government has to prove: namely, the location of
the robbery (a bank). The courts‟ analyses in the above-cited cases, however, is not focused on the location element;
rather the analysis in each of the cases is focused on the conduct element and what surrounding circumstances can
be considered in evaluating whether the conduct establishes an implicit threat.


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contrary to our standard of review—to infer that Coleman walked into the bank solely motivated

by the hope that the bank would willingly give him money in response to his request.

       Yet, even if such an inference were a reasonable one, our standard of review dictates that

reversal would not be warranted. Under our standard of review, “[e]ven if the evidence would

support two equally valid inferences, only the inference that supports the finding of guilt can be

considered.” State v. Latall, 271 S.W.3d 561, 568 (Mo. banc 2008). Here, although this is a

close case, there is at least one reasonable inference supporting the trial court‟s finding that

Coleman implicitly threatened the immediate use of physical force, regardless of whether he did

so purposely. Thus, the evidence was sufficient to support his conviction of second-degree

robbery. Accordingly, I would affirm Coleman‟s conviction and sentence.




                                             Karen King Mitchell, Judge




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