State v. Whittaker
State v. Whittaker
Opinion of the Court
Introduction *500Robert Whittaker appeals from the judgment of convictions of first-degree robbery and armed criminal action arising out of an incident in which Whittaker used a knife when confronted while stealing a lawn mower. Whittaker waived his right to a jury trial, and after a bench trial, the court found Whittaker guilty on both counts. Specifically, the court found the knife was used to overcome or prevent resistance to the taking or keeping of the lawn mower. The court sentenced Whittaker to concurrent terms of imprisonment totaling fifteen years. The judgment also found Whittaker a prior and persistent offender. Whittaker raises two points on appeal, arguing the trial court erred in entering judgment against him because: 1) there was insufficient evidence as a matter of law to prove he forcibly stole the lawn mower and used a dangerous instrument in the course thereof; and 2) no prior and persistent offender finding was made at trial so the case must be remanded so the clerical error in the judgment and sentence finding him a prior and persistent offender can be removed. We correct the judgment and sentence to delete the prior and persistent offender finding and affirm as modified.
Facts
On August 1, 2015, after cutting grass at a property on North Broadway in the City of St. Louis, A.M. ("Victim") put his lawn mower in the bed of his pickup truck and used a bungee cord to secure it inside the bed. Victim and his girlfriend then went to the store across the street. While inside, the store clerk saw someone tampering with Victim's truck. The clerk alerted Victim and he went outside and found Whittaker had removed the lawn mower from the bed of the truck to the ground. Victim confronted Whittaker and moved towards him, and Whittaker went around the truck but came back towards Victim with a knife in his hand. Whittaker slashed the knife at Victim with one hand and grabbed at him with the other. Whittaker told Victim to get back or he would cut him. Victim moved back to avoid the knife, but Whittaker scratched him with his fingernail while grabbing at him. Victim warned Whittaker he would defend himself if Whittaker kept coming at him.
By this point, Victim's girlfriend, the store clerk, and two other patrons had come out of the store. Whittaker was informed the police had been called. Whittaker came at the store clerk and other patrons with his knife, but Victim got between them. Whittaker then fled on foot and the police found him a few blocks away.
A grand jury charged Whittaker by indictment, as a prior and persistent offender, with two counts: 1) first-degree robbery, a class A felony, and 2) armed criminal action, an unclassified felony. The indictment pled facts warranting a finding that Whittaker was a prior offender, but did not plead facts warranting a finding that Whittaker was a persistent offender. Whittaker waived his right to a jury trial. At the bench trial, Whittaker admitted to having been found guilty of multiple felonies committed at different times prior to these charges, but the court never made findings of fact that Whittaker was a prior and persistent offender. The court found Whittaker guilty on both charges, and sentenced Whittaker to concurrent terms of imprisonment totaling fifteen years. While the court never made findings on the record at trial or *501during sentencing that Whittaker was a prior and persistent offender, the judgment found Whittaker a prior and persistent offender. This appeal follows.
Standard of Review
On direct appeal, we review for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial. State v. Morrow ,
We review the sufficiency of the evidence in a bench trial of a criminal case to determine whether the State presented sufficient evidence from which the trier of fact could have reasonably found the defendant guilty. State v. Allen ,
I. Sufficiency of the Evidence
In point I, Whittaker argues the trial court erred in entering judgment against him because there was insufficient evidence as a matter of law to prove he forcibly stole the lawn mower and used a dangerous instrument in the course thereof. Specifically, Whittaker contends the State failed to produce sufficient evidence showing he appropriated the lawn mower, and used or threatened force to prevent or overcome resistance to his taking the lawn mower or for retaining it. On the appropriation, Whittaker asserts he never had possession, power, or control over the lawn mower because it was always attached to Victim's truck via a bungee cord. Regarding his argument related to using force, Whittaker argues he did not use or threaten force until after he had given up on stealing the lawn mower. Whittaker argues State v. Kelly ,
A person commits first-degree robbery "when he forcibly steals property and in the course thereof he ... [i]s armed with a deadly weapon[,] or ... [u]ses or threatens the immediate use of a dangerous instrument against any person[.]" § 569.020.1.
"The rule in Missouri has traditionally been that the force, violence or intimidation necessary to prove robbery must precede or be contemporaneous with the taking of the property."
In Kelly , the defendant was charged with first-degree robbery and armed criminal action arising out of an incident at a department store. The defendant and another man went into the store and took clothes off the racks. As the men were leaving the store, the store security guard tried to stop them. The defendant dropped his pile of clothes and ran. The security guard ran outside to the defendant's car in an attempt to keep the men from getting away. The defendant pointed a gun in her face. The security guard backed away and the men ran. A jury found the defendant guilty as charged.
On appeal, the defendant argued the evidence was insufficient to support his convictions because it did not establish he used force or a weapon against the security guard while taking property. The defendant claimed the State's evidence only showed that force or a weapon was used after he had dropped the property and no longer had control of it. The defendant argued the evidence only established that by the time he pulled out the gun, the taking was over and he had abandoned his attempt at carrying the clothes away. The defendant asserted the evidence at most showed him to be guilty of stealing. The Kelly court agreed. Id. at 348.
The court found the elements of stealing were met because the defendant appropriated the clothes by taking them out of the building without paying for them, leading to a reasonable inference the defendant intended to deprive the owner of the clothes. Id. But the court found there was no evidence the defendant used force in taking the property. Id. Therefore, the court concluded there was insufficient evidence to convict the defendant of robbery. Id. at 348-49. The court stated:
[T]he record is devoid of any evidence that [the defendant] or his partner used any force or threatened the use thereof at the time of confrontation. Rather, it is clear they dropped the clothes and ran. They used no force nor did they threaten the use of force in order to retain the *503property. They simply left the clothes and tried to make their escape. At this point, the taking was over, and [the defendant] and his partner had abandoned their attempt to retain the property. The record is clear that, as of that time, no force or threat of force was used.
The court explained the "force was used only after the taking was over, and [the defendant] and his partner dropped the clothes and abandoned any attempt to retain possession of them." Id. at 350. The court emphasized that "[t]he use of force did not precede the taking, was not contemporaneous with the taking and was not immediately after the taking for the purpose of overcoming resistance to the retention of the property. " Id. (emphasis in original).
The court also noted that the facts were distinguishable from those in State v. Maynard ,
Kelly was distinguished in Hamilton v. State ,
*504On appeal, the movant cited Kelly to support his argument he only threatened force to avoid returning to the store to pay for the beer.
Here, we find Kelly to be distinguishable. The facts here are more similar to those in Hamilton , Maynard , and Cates . First, unlike in Kelly , there is evidence in the record that Whittaker used or threatened the use of force "at the time of confrontation" and "immediately after the taking for the purpose of overcoming resistance to the retention of the property. "
Unlike in Kelly , Whittaker did not abandon the stealing of the lawnmower and run when confronted. Kelly ,
Whittaker's action when confronted is similar to the robbers in Hamilton , Maynard , and Cates who threatened the use of force to overcome resistance to the retention of the property. Hamilton ,
While one factor the courts in Hamilton , Maynard , and Cates all relied on was that the robbers were in physical possession of the stolen items when the force was used, this is not required: "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 ... [p]reventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking[.]" See § 569.010(1) (emphasis added). "In the course of stealing" is a broad phrase that covers the whole transaction. Yancy ,
On Whittaker's argument the State failed to produce sufficient evidence showing he appropriated the lawn mower because it was attached to the truck via a bungee cord, taking the evidence most favorably to the State, the police officer testified he was told by Victim and Victim's girlfriend that Whittaker was pushing the lawnmower away from the truck when Victim approached him. This would allow the trier of fact to reasonably infer a bungee cord was no longer attached to the lawn mower. But even if a bungee cord was attached, the State still produced sufficient evidence showing Whittaker appropriated the lawn mower and he admitted as much at trial, testifying that he took the lawn mower from the truck and placed it on the ground. See State v. Escoe ,
II. Prior and Persistent Offender
In point II, Whittaker contends the trial court made a clerical error by finding him a prior and persistent offender in its judgment because the court never made that finding at trial. Whittaker acknowledges this error does not affect the length of his sentence but requests we remand the case so his written sentence and judgment can be corrected. The State argues this argument was not preserved, and that if reviewed for plain error, Whittaker cannot show a manifest injustice or a miscarriage of justice has resulted therefrom, because as Whittaker admits, it did not affect his sentence. Nonetheless, the State concedes the persistent offender finding is erroneous because the State failed to plead sufficient facts in the indictment demonstrating that status. See § 558.021.
Generally, a mistake on the written judgment and sentence form involving the marking of boxes designated for a defendant's prior and persistent offender findings is considered a clerical mistake. Warren v. State ,
The State claims Whittaker's point should be reviewed for plain error only because it was not properly preserved. Whittaker argues the point is properly preserved because the issue only arose after sentencing so it could not be objected to at trial or sentencing. While the indictment charged Whittaker as a prior and persistent offender and it alleged sufficient facts for the trier of fact to find Whittaker a prior offender, it did not allege sufficient facts for Whittaker to be found a persistent offender. At trial, the State presented sufficient evidence for the court to find Whittaker to be a prior and persistent offender, but the court never made those findings. At sentencing, the court did not sentence Whittaker as a prior and persistent offender, but rather sentenced Whittaker within the statutory guidelines to concurrent terms of fifteen years' imprisonment for each count. In its judgment, however, the court found Whittaker a prior and persistent offender. Both parties concede that Whittaker's term of imprisonment will remain the same no matter how we rule.
Under Supreme Court Rule 30.23
Conclusion
For the reasons stated above, the judgment and sentence is corrected by deleting the finding that Whittaker is a prior and persistent offender. As so modified, we affirm the judgment.
Lisa P. Page, P.J. and Roy L. Richter, J. concur.
All references to statutes are to RSMo (2016) unless otherwise indicated.
Missouri Supreme Court Rules (2016).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.