State v. Stewart
State v. Stewart
Opinion of the Court
Robert Stewart appeals a judgment convicting him of unlawful use of a weapon, § 571.030, third-degree domestic assault, § 565.074, first-degree burglary, § 569.160, and armed criminal action, § 572.015.
Factual and Procedural Background
Viewed in the light most favorable to the verdict, the record shows Stewart and T.S. divorced in early 2014 but attempted to reconcile and began living together in November 2014. Stewart and T.S. made a $5,000 down payment on a rent-to-own arrangement for the residence at issue. When Stewart failed to return home one *533night, T.S. told him to leave and "not to come back." Stewart agreed and began sleeping in a camper on the property.
On January 23, 2015, a few days after Stewart agreed to move out of the residence, T.S. asked Stewart to deliver firewood to the residence. Stewart and T.S.'s uncle moved the firewood into the basement. After delivering the firewood, Stewart went upstairs and knocked on T.S.'s bedroom door. T.S. exited the bedroom with another man. T.S. observed Stewart holding a gun and told him to leave. Stewart responded by firing the gun into the ceiling. T.S. testified she was "startled" by the shot and more forcefully told Stewart to leave. Stewart threatened to kill T.S. and her guest. Stewart then left the residence and, as T.S. went to close the door behind him, Stewart fired a shot through a window near the door.
Following a jury trial, the circuit court entered a judgment convicting Stewart of third-degree domestic assault, first-degree burglary, armed criminal action, and unlawful use of a weapon. The circuit court overruled Stewart's motion for judgment of acquittal. Stewart appeals.
Standard of Review
"When considering the sufficiency of the evidence on appeal, this Court must determine whether sufficient evidence permits a reasonable juror to find guilt beyond a reasonable doubt." State v. Wright ,
Domestic Assault
The state charged Stewart with third-degree domestic assault in violation of § 565.074.1(3).
Stewart's argument fails because it requires this Court to credit T.S.'s testimony when the jury declined to do so. The jury, as the finder of fact, is under no obligation to believe any particular evidence, including T.S.'s testimony. State v. Jackson ,
*534There is no statutory definition of the word "apprehension" as used in § 565.074.1(3). "In the absence of a statutory definition, words will be given their plain and ordinary meaning as derived from the dictionary." State v. Oliver ,
Viewing the evidence in the light most favorable to the verdict, the record shows Stewart knocked on T.S.'s bedroom door while holding a gun. When she told him to leave, Stewart discharged the gun into the ceiling. T.S. testified she was "startled" by the shot and more forcefully told Stewart to leave. T.S. testified, if the bullet had hit her at close range it would "do some damage." Finally, T.S. moved to shut the door behind Stewart, at which time Stewart fired a second shot back into the house. T.S.'s testimony that she was startled by the gunshot, forcefully told Stewart to leave, was aware she could have been injured by the gunfire, and moved to shut the door behind Stewart as he left constitutes sufficient evidence for a reasonable juror to find T.S. subjectively perceived, comprehended, or conceived immediate physical injury due to Stewart's actions. The circuit court did not err in overruling Stewart's motion for judgment of acquittal on his conviction for third-degree domestic assault.
The dissent relies heavily on J.D.B. v. Juvenile Officer ,
Burglary
The state charged Stewart with first-degree burglary pursuant to § 569.160.1(3) for knowingly remaining unlawfully in the residence possessed by T.S. for the purpose of committing a domestic assault.
Stewart's alleged property interest in the residence does not foreclose his burglary conviction. Section 569.160 defines the circumstances in which "a person" commits the crime of burglary. Similarly, § 569.010(8) provides "a person ... knowingly remains unlawfully when he is not licensed or privileged to do so." Both statutes apply, without limitation, to "a person," and neither statute immunizes those with a property interest in the premises from criminal liability for burglary.
Section 569.010 does not define the terms "licensed" or "privileged." "In the absence of a statutory definition, words will be given their plain and ordinary meaning as derived from the dictionary." State v. Oliver ,
A "license" is defined generally as "permission to act." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1304 (2002). A "privilege" is defined generally as "a right or immunity granted as a peculiar benefit, advantage or favor." Id. at 1805. Consistent *536with these definitions, the common law provides a "license is a privilege to enter certain premises for a stated purpose" and "may be revoked at the will of licensor." Riverside-Quindaro Bend Levee Dist., Platte Cty., Mo. v. Mo. Am. Water Co. ,
Viewed in the light most favorable to verdict, the evidence shows T.S. and Stewart agreed he would move out of the residence. Consistent with that agreement, Stewart stayed away from the residence and surrounding property, returning only at night to sleep in the camper. Stewart testified he and T.S. "were not living together on January 23, 2015." Under these circumstances, a reasonable juror could find T.S. was in sole possession of the residence and Stewart relinquished his license or privilege to remain there. Further, a reasonable juror could find Stewart exceeded the scope of any limited license and privilege to remain in the residence when, after delivering firewood to the basement, he went upstairs, twice ignored T.S.'s demands that he leave and, instead, fired a gun and threatened to kill her. Stewart's assertion he was licensed or privileged to remain in the residence because he continued to use the residence fails because it is based on evidence and inferences contrary to the verdict. Consequently, there was sufficient evidence from which a reasonable juror could find Stewart committed a burglary by knowingly remaining unlawfully in the residence for the purpose of assaulting T.S.
Conclusion
The judgment is affirmed.
Wilson, Russell, Powell and Breckenridge, JJ., concur; Draper, J., dissents in separate opinion filed; Stith, J. concurs in opinion of Draper, J.
DISSENTING OPINION
George W. Draper III, Judge
I respectfully dissent from the principal opinion's holding there was sufficient evidence to convict Robert E. Stewart (hereinafter, "Stewart") of third-degree domestic assault. I believe the principal opinion's holding the jury rejected all of T.S.'s testimony leaves no subjective basis upon which to base Stewart's domestic assault conviction and, therefore, it should be vacated. Further, because I believe there was insufficient evidence presented to support the domestic assault conviction, the State did not have sufficient evidence to submit the burglary charge. Instead, I would find the evidence sufficient to support a conviction for first-degree trespassing and reverse Stewart's judgment of conviction and remand for resentencing.
Standard of Review
"To determine whether the evidence presented was sufficient to support a conviction and to withstand a motion for judgment of acquittal, this Court does not weigh the evidence but rather 'accept[s] as true all evidence tending to prove guilt together with all reasonable inferences *537that support the verdict, and ignore[s] all contrary evidence and inferences.' " State v. Ess ,
Domestic Assault
Section 565.074.1(3), RSMo Supp. 2014,
The principal opinion attempts to diminish the authority of J.D.B. v. Juvenile Officer ,
In J.D.B. , a juvenile was convicted of third-degree assault after purposefully attempting to scare a woman, who was locked in her car, while the juvenile and his friends surrounded her car, waved a plastic machete, and made sexual crude gestures toward her.
Because there is no other meaningful way to distinguish J.D.B. , which has stood as precedent for nearly twenty years, the *538principal opinion criticizes the definition of "apprehend" because the court of appeals relied on Black's Law Dictionary for its definition rather than a standard dictionary. Yet this Court unanimously adopted use of Black's Law Dictionary definitions to construe statutory language as recent as Mantia v. Missouri Department of Transportation ,
In this case, T.S. testified after she saw Stewart holding the gun, she told him to get out of the house. After Stewart fired the gun into the ceiling, T.S. testified the gunshot startled her, and if the bullet had hit her at close range it would have done some damage. T.S. then more forcefully told Stewart to get out of the house. When Stewart finally left the house, the prosecutor asked T.S. what was going through her mind at the time. T.S. answered, "I don't really remember." The following exchange then occurred:
[The prosecutor]: I'm asking you were you concerned when you heard that gunshot or the glass break that you could have been hit by that bullet?
T.S. I don't know. I don't remember what I felt. I guess.
[The prosecutor]: So is your answer you don't remember?
T.S. Yeah.
This scant testimony constitutes the entirety of the evidence presented concerning T.S.'s subjective apprehension of immediate physical injury. On cross-examination, T.S. explicitly denied being in fear or afraid of Stewart despite the gunshots and threats because he was "just blowing steam."
The principal opinion rejects Stewart's argument, finding the jury was free to disregard T.S.'s testimony because the jury is under no obligation to believe any particular evidence. In disregarding T.S.'s uncontradicted testimony she had no subjective apprehension of immediate physical injury, the principal opinion relies on objective circumstantial evidence to support the conviction, such as Stewart discharging the gun twice and making threats to T.S. and her overnight guest as he left the residence. I believe the principal opinion's reliance on this evidence incorrectly applies an objective standard when reviewing the evidence despite recognizing J.D.B. requires evidence of the victim's subjective apprehension of immediate physical injury.
An objective standard is a "legal standard that is based on conduct and perceptions external to a particular person." BLACK'S LAW DICTIONARY 1624 (10th ed. 2014). An objective standard contrasts with a subjective standard, which is defined as a "legal standard that is peculiar to a particular person and based on the person's individual views and experiences." Id. ; see also Mantia ,
There is little doubt an objective, reasonable juror may well feel an apprehension of immediate physical injury if placed in T.S.'s position during Stewart's confrontation or under the circumstances of J.D.B. However, the law does not require proof of what an objective person would apprehend under those circumstances. Instead, J.D.B. requires proof of the victim's subjective apprehension, which is to say T.S.'s peculiar, *539individual views and experiences. At best, as T.S. explicitly stated, she was startled and possibly concerned about Stewart's actions, but denied she was fearful or afraid of Stewart.
I am mindful domestic assault victims may be reluctant to testify or express the necessary subjective state of mind to provide sufficient evidence to support a third-degree domestic assault charge. Hence, I do not believe the victim's testimony is the only way to prove his or her subjective apprehension of immediate physical injury. In Schumer v. Lee ,
In this case, T.S.'s uncle, grandmother, and overnight guest were all present in the residence when this incident occurred. None of them testified. Further, the police were called to the residence many hours later, at which time they collected forensic evidence concerning the gunshots. The officer who testified at trial provided no evidence whatsoever regarding T.S.'s appearance, state of mind, or any other observation indicating she had a subjective apprehension of immediate physical injury. The only subjective evidence presented regarding T.S.'s subjective apprehension was her own testimony, which flatly denied any fear of Stewart. What remains is minimal objective evidence a reasonable person could find caused an apprehension of immediate physical injury, which is not what the law requires. Based on the paucity of the record, I believe the state presented insufficient evidence from which reasonable jurors could find Stewart committed third-degree domestic assault beyond a reasonable doubt. I would vacate the judgment of Stewart's conviction for third-degree domestic assault.
Burglary
Section 569.160.1(3) provides a person commits first-degree burglary:
[I]f he [or she] knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein, and when in effecting entry or while in the building or inhabitable structure ... [t]here is present in the structure another person who is not a participant in the crime.
"[A] person 'enters unlawfully or remains unlawfully' in or upon premises when he [or she] is not licensed or privileged to do so." Section 569.010(8).
Stewart was charged with knowingly remaining unlawfully after entering the residence for the purpose of committing third-degree domestic assault. Because I believe there was insufficient evidence to support the third-degree domestic assault herein, the burglary conviction cannot be supported as charged and instructed.
I agree with the principal opinion's finding the state presented sufficient evidence *540Stewart knowingly remained unlawfully within the residence after T.S. instructed him multiple times to leave. Section 569.140.1 provides a person commits first-degree trespass when "he or she knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure or upon real property." First-degree trespass is a "nested" lesser-included offense to first-degree burglary. State v. Smith ,
Conclusion
Based on the foregoing, I would vacate the judgment of Stewart's conviction for third-degree domestic assault. I would reverse Stewart's conviction for first-degree burglary and remand the cause for entry of judgment for conviction of first-degree trespass and resentencing.
All statutory citations are to RSMo Supp. 2014. Section 565.074 and § 569.160 were amended effective January 1, 2017. The statutory amendments do not apply because Stewart committed the assault and burglary at issue in 2015.
This Court has jurisdiction pursuant to Article V, section 10 of the Missouri Constitution.
Section 565.074 provides:
1. A person commits the crime of domestic assault in the third degree if the act involves a family or household member, including any child who is a member of the family or household, as defined in section 455.010 and:
* * *
(3) The person purposely places such family or household member in apprehension of immediate physical injury by any means.
The dissent argues T.S.'s subjective apprehension of immediate physical injury cannot be inferred from the "objective" circumstances of the case. T.S., however, testified she was startled, demanded that Stewart leave, and acknowledged she could have been injured by Stewart's gunfire.
When determining whether there is sufficient evidence to affirm a criminal conviction, every case turns on its own record. Drawing analogies to lower court decisions is often unhelpful because even superficially similar cases involve unique facts and credibility determinations. The dissent's reliance on J.D.B. and references to State v. M.L.S. ,
In pertinent part, § 569.160.1(3) provides:
1. A person commits the crime of burglary in the first degree if he knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein, and when in effecting entry or while in the building or inhabitable structure or in immediate flight therefrom, he or another participant in the crime:
* * *
(3) There is present in the structure another person who is not a participant in the crime.
In State v. Hill ,
Stewart's conviction for third-degree domestic assault is consistent with his burglary convictions. Stewart's assault conviction was based on a finding T.S. was a "household member." A "household member" includes a "former spouse" and persons who have "resided together in the past." Therefore, the fact T.S. was a "household member" does not mean Stewart retained a license or privilege to remain in the residence.
All statutory references are to RSMo Supp. 2014.
Reference
- Full Case Name
- STATE of Missouri v. Robert E. STEWART
- Cited By
- 55 cases
- Status
- Published