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Date: 01-09-2018

Case Style:

State of Missouri vs. Robert E. Stewart

Case Number: ED105110

Judge: Lisa P. Page

Court: MISSOURI COURT OF APPEALS EASTERN DISTRICT

Plaintiff's Attorney: Samuel Buffaloe

Defendant's Attorney: Garrick Aplin

Description: Defendant and T.S. were married in March 2005 and divorced in January 2014. After
divorcing, they attempted to reconcile. Defendant testified they started living together again in
November 2014. T.S. testified she and Defendant both contributed money to put $5,000 down in
a rent-to-own arrangement on the residence at issue in this case. She also testified they lived there
together until about a week before the January 23, 2015 incident. T.S. stated when Defendant failed
to return home one night, she told him “not to come back.” T.S. testified that during the interim
week, he stayed in a camper they “had . . . at the house.”
On cross-examination, T.S. agreed with defense counsel that Defendant “had all of his stuff
in [the] house because he was living there[.]” She confirmed that even after he started sleeping in
the camper, “all of his stuff,” including his clothes, toiletries, and other personal items, remained
in the residence; that he continued to eat meals and take showers in the residence; and that he was
“just sleeping in the trailer”—“[t]he rest of the time he was in the house with [her] and [they] were
actually working on [the house].” T.S. also testified she did not seek a protective order prior to the
January 23, 2015 incident.
Defendant testified he and T.S. had a “lease with option to buy” the residence and were
living in and working on it while they waited for a contract to be drawn up. He testified that around
January 20, 2015, T.S. “caught [him] red-handed” in some way regarding his relationship with


2 Defendant does not appeal his conviction of unlawful use of a weapon.
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another woman and told him to “get out” of the residence. He responded he would stay in the
camper but she said he could get the camper off the property, too. He testified the camper was
“parked right in the driveway.” He stated T.S. left a message on his phone not to come back and
that “all [his] stuff would be out in the yard and she’d burn it.”
However, she did not follow through and on January 23, 2015, “everything” remained in
the residence. Defendant further stated that during the two days prior to January 23, 2015, he
“wasn’t even on the property . . . because [he] did not want to argue with [T.S.],” and he would
come home late at night when he knew she was in bed and he “didn’t have to worry about her
coming out there and arguing and fighting.”
On the morning of January 23, 2015, Defendant was in the residence delivering firewood.
Both Defendant and T.S. testified he did so at T.S.’s request. But T.S. did not greet Defendant
when he arrived—only her grandmother and uncle did. Defendant inquired about T.S., then walked
upstairs to knock on her bedroom door. T.S. testified she was awakened by Defendant’s knocking.
When she exited the bedroom with another man, who was her overnight guest, she spotted
Defendant standing by the back door of the house holding a black handgun. T.S. said she
immediately told Defendant to get out of the house. In response, Defendant fired the handgun into
the ceiling. T.S. testified she was “startled” by the shot. When she more forcefully told Defendant
to leave, he threatened to kill both her and her guest, then left the house.
T.S. testified that when she walked toward the door to close it, she heard another gunshot
and the sound of glass breaking. After T.S. shut the door, Defendant started his car and left the
property. When her overnight guest called the police, T.S. told him to hang up. Police arrived later
that day and found bullet holes and .32-caliber shell casings matching T.S.’s description of the
incident.
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Despite her admission, under oath, acknowledging the danger of gunfire, T.S. testified she
was not afraid of Defendant and did not think he was trying to hurt her during the incident.
Additionally, she stated she was not afraid when Defendant threatened her and her guest and agreed
Defendant was “just blowing steam.” She stated she was never in apprehension of serious physical
injury, though she recognized the seriousness of the injury she might suffer with Defendant firing
from such close range. Moreover, she testified she continued to visit Defendant at the jail after he
was arrested.
Defendant’s account of the incident differed as to only a few details: He testified T.S. told
him to get out of the residence before she opened the door to the bedroom. He denied threatening
to kill anyone. Additionally, he claimed he fired the second shot accidentally as a result of T.S.
slamming the back door behind him and knocking him down the stairs.
Defendant was convicted of first-degree burglary based on the charge he “knowingly
remained unlawfully in an inhabitable structure . . . possessed by [T.S.], for the purpose of
committing the offense of domestic assault in the third degree therein,” while T.S. was present in
the residence. (emphasis added). He was convicted of armed criminal action on the charge he
committed first-degree burglary as just described, by, with, and through the knowing use,
assistance, and aid of a deadly weapon. And he was convicted of third-degree domestic assault on
the charge he “purposely placed [T.S.] in apprehension of immediate physical injury by threatening
to kill her and firing a gun into her home, and [T.S.] and [Defendant] were family or household
members in that [T.S.] was the former spouse of [Defendant].”
This appeal follows.

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Point I—The Record at Trial Contained Sufficient Evidence to Sustain the Judgment as to
Defendant’s Third-Degree Domestic Assault Conviction
In his first point on appeal, Defendant contends the record at trial did not contain sufficient
evidence to sustain the judgment as to his conviction of third-degree domestic assault.
Standard of Review
Our review of this claim is limited to determining whether sufficient evidence was
presented at trial from which a reasonable juror might have found the defendant guilty beyond a
reasonable doubt of all the essential elements of the crime. State v. Hill, 408 S.W.3d 820, 822 (Mo.
App. E.D. 2013) (citing State v. Thomas, 387 S.W.3d 432, 436 (Mo. App. W.D. 2013)). All
evidence favorable to the verdict, is accepted as true, while contrary evidence and inferences are
disregarded. Id. That is, unless a contrary inference is such a natural and logical extension of the
evidence that a reasonable juror would be unable to disregard it. State v. Grimm, 854 S.W.2d 403,
411 (Mo. banc 1993). Reasonable inferences can be drawn from both direct and circumstantial
evidence, and circumstantial evidence alone can be enough to support a jury’s verdict. Hill, 408
S.W.3d at 822. The jury determines the reliability, credibility, and weight of witness testimony.
Id.
Analysis
A person commits the crime of third-degree domestic assault if the person purposely places
a family or household member in apprehension of immediate physical injury by any means.
Section 565.074. The State must show both that the defendant intended to place the victim in
apprehension of immediate physical injury, and that the victim was actually placed in such
apprehension. J.D.B. v. Juvenile Officer, 2 S.W.3d 150, 152 (Mo. App. W.D. 1999). “To
apprehend something means to ‘conceive, believe, fear, or dread’ it.” J.D.B., 2 S.W.3d at 153
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(quoting State v. McGuire, 924 S.W.2d 38, 39 (Mo. App. E.D. 1996)). “Physical injury” is defined
as “physical pain, illness, or any impairment of physical condition.” Section 556.061(20).
Defendant asserts the State failed to present sufficient evidence of T.S.’s actual
apprehension of immediate physical injury because T.S. testified specifically that Defendant did
not place her in apprehension of immediate physical injury, she was not afraid of him, and she did
not think he was trying to hurt her. Defendant’s argument is without merit. Even considering the
testimony referred to by Defendant above, we find when considering the circumstances
surrounding the interaction and the record as a whole, there was sufficient evidence from which
the jury could have convicted Defendant of third-degree domestic-assault.
Here, both T.S. and Defendant testified T.S. told Defendant to leave the residence, and
Defendant responded by firing his gun into the ceiling. T.S. repeatedly and more insistently
pleaded for Defendant to leave the house. T.S. testified she was startled by the shot and she
recognized the seriousness of the injury she might suffer with Defendant firing from such close
range. She also stated that after the first shot, she more forcefully told Defendant to leave.
Thereafter, Defendant threatened to kill T.S. and her guest. Finally, there was substantial evidence,
including the testimony of both T.S. and Defendant, to support the conclusion that when Defendant
ultimately left the residence and T.S. moved to shut the door behind him, he fired another shot into
the house through a window next to the door. When asked whether she was concerned, when she
heard the second gunshot, that she might be hit by it, T.S. said she could not remember but guessed
so.
T.S.’s repeated, increasingly insistent pleas for Defendant to leave the house; her testimony
she found herself “startled” after Defendant discharged a firearm inside the house; her
understanding of the danger she was in when Defendant fired the handgun at close range; as well
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as Defendant’s firing of a second shot into the house and her supposed concern of being hit by the
second shot, all support Defendant’s conviction for third-degree domestic assault. Based upon the
foregoing evidence, a reasonable juror could have inferred T.S. was in actual apprehension of
immediate physical injury, despite her testimony to the contrary. See State v. Jackson, 433 S.W.3d
390, 392, 399 (Mo. banc 2014) (jurors need not believe any particular testimony and have the right
to disbelieve any or all evidence).
We reject Defendant’s argument that in convicting him of third-degree domestic assault,
the jury discarded a subjective standard of apprehension for an objective one. Rather, it seems that
in light of all the evidence, the jury simply did not believe T.S.’s testimony that she was not placed
in apprehension of immediate physical injury. Indeed, based on the testimony and facts referenced
above, we find the jury reasonably concluded T.S. was in actual apprehension of immediate
physical injury, and therefore, there was sufficient evidence to support Defendant’s conviction of
third-degree domestic assault.
Point I is denied.
Point II—The Record at Trial Contained Sufficient Evidence to Sustain the Judgment as to
Defendant’s First-Degree Burglary Conviction
In his second point on appeal, Defendant contends that the record at trial did not contain
sufficient evidence to sustain the judgment as to his conviction of first-degree burglary. We agree.
Standard of Review
As in Point I, our review is limited to a determination of whether, when viewing the
evidence in the light most favorable to the State, there is sufficient evidence from which a
reasonable juror could have found Defendant guilty beyond a reasonable doubt of all the essential
elements of the charged offense. State v. Myles, 479 S.W.3d 649, 660 (Mo. App. E.D. 2015). All
8

evidence favorable to the verdict, is accepted as true, as well as all reasonable inferences. Hill,
408 S.W.3d at 822. We accept only those contrary inferences a reasonable juror would be unable
to disregard. Grimm, 854 S.W.2d at 411.
Analysis
A person commits the crime of first-degree burglary if the person knowingly remains
unlawfully in an inhabitable structure for the purpose of committing a crime therein, and a person
who is not a participant in the crime is present in the structure. Section 569.160.1(3) (emphasis
added). A person remains unlawfully in a premises when not licensed or privileged to do so.
Section 569.010. The mens rea “knowingly” modifies the phrase “enters unlawfully.” Section
569.160. A person acts “knowingly” with respect to his conduct or attendant circumstances when
he is “aware of the nature of his conduct or that those circumstances exist.” State v. Hunt, 451
S.W.3d 251, 257 (Mo. banc 2014) (citing Section 562.016.3(1)). Accordingly, a person
“knowingly remains unlawfully” when he is aware he has no privilege to remain. Cf. id. (citing
State v. Chandler, 635 S.W.2d 338, 342 (Mo. banc 1982)) (reaching the same conclusion with
regard to knowingly entering unlawfully). Thus, pursuant to Missouri Supreme Court precedent,
our analysis must focus on the sufficiency of the evidence of defendant’s subjective belief. Id.
In his motion for new trial, Defendant asserts only that the State failed to show that he in
fact had no license or privilege to remain inside the residence, rather than raising any argument
concerning his subjective belief. However, claims concerning the sufficiency of the evidence to
support a conviction are considered on appeal even if not raised in the motion for new trial. State
v. Claycomb, 470 S.W.3d 358, 361 (Mo. banc 2015); See also Rule 29.11(d)(3) (allegations of
error must be presented in motion for new trial following jury trial except sufficiency of the
evidence) (emphasis added). Thus, we consider whether there was sufficient evidence from which
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a reasonable juror could have found Defendant was aware he lacked any such license or privilege
to remain in the residence beyond a reasonable doubt. Id.; See also Myles, 479 S.W.3d at 660; and
State v. Voss, 488 S.W.3d 97, 109 (Mo. App. E.D. 2016).
Here, there was no direct testimony or evidence of Defendant’s subjective knowledge. The
only evidence the State presented of Defendant’s awareness he lacked any license or privilege to
remain in the residence was T.S.’s affirmative answers on redirect examination in response to the
State’s questioning (1) whether Defendant “eventually did get out” of the residence, and (2)
whether he “didn’t say, hey, I have every right to be here, you can’t tell me to get out.”
Where proof of an essential element of a crime relies solely on circumstantial evidence, “a
conviction must rest upon inferences, which inferences must be strong enough to support a finding
of guilt beyond a reasonable doubt.” State v. Allen, 2017 WL 4247998 (Mo. App. E.D. 2017)
(citing State v. Waller, 163 S.W.3d 593, 596 (Mo. App. W.D. 2005)). Speculation may not be
used to support a verdict. State v. Clark, 490 S.W.3d 704, 711 (Mo. banc 2016). To determine
whether circumstantial evidence sufficiently supports an inference of knowledge, we must look at
the totality of the circumstances. State v. Evans, 410 S.W.3d 258, 263 (Mo. App. W.D. 2013).
On this record, there is no direct evidence Defendant eventually left the residence because
he was subjectively aware he had no right to be there. Nor is there any evidence he failed to assert
such a right because he was aware he lacked any license or privilege to remain in the residence.
Rather, the record contains ample evidence suggesting Defendant was in fact not subjectively
aware he lacked such license or privilege, and to support the conclusion he had other reasons for
leaving and failing to assert his right to remain in the residence.
T.S. testified Defendant left “all of his stuff” in the house, continued to eat meals and take
showers there, and was “just sleeping” in the camper. Both T.S. and Defendant testified he was
10

delivering firewood to the house, at her request, just before he went upstairs and the domestic
incident began. This evidence and inferences therefrom support the conclusion that Defendant
lacked subjective awareness that he had no right to remain.
Defendant also testified that prior to the incident, he stayed away from the property during
the day because he did not want to argue with T.S., and he would come home late at night when
he knew she was in bed and he “didn’t have to worry about her coming out there and arguing and
fighting.” A reasonable juror could have concluded from this evidence that Defendant, believing
he had a license or privilege to remain in the residence, failed to insist on such a right before he
left, ending the dangerous situation he initiated. Regardless of why Defendant eventually left the
residence and failed to assert a right to remain, there is nothing in the record to suggest he did so
because he knew he lacked any license or privilege to stay inside.
There is no direct evidence from which a juror could conclude Defendant was aware he did
not have the privilege to remain in the residence and knowingly remained unlawfully therein.
Instead, the circumstantial evidence and inferences therefrom would require juror speculation to
conclude that Defendant must have been aware he lacked any license or privilege to remain. Such
speculation may not be used to support a verdict. Clark, 490 S.W.3d at 711. Instead, the totality
of the circumstances support the conclusion Defendant lacked awareness of the fact he had no right
to remain in the residence. Thus, even viewing the evidence in the light most favorable to the
jury’s verdict, we hold there was insufficient evidence presented to establish the “knowingly”
element of first-degree burglary.
Point II is granted.

Outcome: The judgment of the trial court is affirmed as to the conviction of third-degree domestic assault, but Defendant’s convictions of first-degree burglary and armed criminal action are vacated.

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