# In the Missouri Court of Appeals Eastern District DIVISON FOUR STATE OF MISSOURI, ) No. ED 101106 ) Respondent, ) Appeal from the Circuit Court of ) the City of St. Louis vs. ) ) MARKUS STEED, ) Honorable Joan L. Moriarty ) Appellant. ) Filed: February 24, 2015 Introduction Marcus Steed (Defendant) appeals the judgment of conviction entered after a jury found him guilty of unlawful possession of a firearm and unlawful use of a weapon. Defendant claims
the tri a l court erred in denying: (1) his request for a mistrial when the trial court instructed the jury to continue deliberation s ; and (2) his motion for judgment of acquittal because the State produced insufficient evidence to support his conviction. We affir m. Factual and Procedural Background Viewed in the light most favorable to the verdict, the evidence at trial revealed the following: On May 29, 2012, Defendant and another man were walking along a sidewalk , when
Officer Barone , who was on patrol with Of ficers Jenkins and Henry, recognized D efendant from a previous arrest and asked to speak to him. While Officer Barone spoke to Defendant, Officer Henry conducted a computer inquiry and learned that Defendant had active warrants. Officer
Barone handcuffed Defendant, informed him he was under arrest, and performed a pat

- down2

search incident to arrest. In his search, Officer Barone discovered a loaded, nine

- mil limeter semiautomatic pistol in Defendant’s waistband beneath his untucked shirt

. The State charg ed Defendant with unlawful possession of a firearm and unlawful use of a weapon. The trial court held a jury trial in December 2013. At trial, the State called to testify Officer Katherine Castillo, a firearms examiner, and Officers Jenkins and Barone. Officer Jenkins stated that he observed Officer Barone remove from Defendant’s waistband “a rusted, brown semiautomatic handgun.” Officer Jenkins identified the gun in court (“State’s Exhibit 1”) and again described it as “rusty, brown.” Officer Barone a lso identified the gun. On cross

examination, he affirmed that, in the police report, he wrote that the gun had a “nickel finish,” but agreed with defense counsel that the gun, in fact, had a “blue finish.” On redirect examination, Officer Barone describ ed the gun as “rusty brown.” Officer Castillo, the firearm s examiner who examined the gun seized from Defendant, testified that the gun had a “blue

- steel finish” and appeared “slightly” rusted. The parties stipulated to Defendant’s prior felony convictions, 1 and Defendant rested at the close of the State’s case without presenting evidence. Defense counsel moved for a judgment of acquittal at the close of the State’s evidence and at the close of all evidence, and the trial court
denied the motion s. The jury retired to begin deliberations at 4:40 p.m. At 5:50 p.m., the jury sent the trial court the following inquiry : “ We cannot come up with a decision today. Is it possible to come back tomorrow to deliberate tomorrow?” After consulting the parties, the trial court released the jury for the evening.

1 After the jury left the courtroom, the State presented evidence of Defendant’s prior convictions and the trial cou rt found that Defendant was a prior offender under Section 558.016.3

The following day, the jury resumed deliberations at 9:13 a.m. At 10:19 a.m., the jury sent the trial court the following question: “What do we do when we can not [sic] come to a
unanimous de cision[?]” The prosecutor requested that the trial court urge the jury to “continue deliberating” as they had “only deliberated for a total of around two hours.” She explained, “I think given more time, there’s a possibility they could reach a unanimous verdict.” Defense counsel disagreed and moved for a mistrial, arguing that the jury had already deliberated over two hours and “their question to the [c]ourt indicated absolutely no possibility of coming to an unanimous decision whatsoever, making further deliberation a pointless exercise.” After hearing arguments, the trial court sent the jury the following response : “The court advises that the jury is to continue deliberations.” At 12:00 p.m., the jury returned its verdict finding Defendant guilty o f both counts. The trial court sentenced Defendant as a prior offender to concurrent terms of seven years’ imprisonment for unlawful possession of a firearm and two years’ imprisonment for unlawful use of a weapon . Defendant appeals. Standard of Review
A ppellate courts review the denial of a request for a mistrial only for abuse of discretion.
State v. Salazar , 414 S.W.3d 606, 620 (Mo.App.S.D. 2013). “ An abuse of discretion occurs
when the trial court's ruling is clearly against the logic of the existing circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” State v. Bracken , 333 S.W.3d 48, 55 (Mo.App.E.D. 2010) (internal quotation omitted). Our review of a challenge to t he sufficiency of the evidence supporting a criminal conviction is limited to a determination of whether the trier of fact reasonably could have found the defendant guilty. State v. Blankenship , 415 S.W.3d 116, 121 (Mo. banc 2013). “Appellate4

courts do n ot weigh the evidence but accept as true all evidence tending to prove guilt together with all reasonable inferences that support the verdict and ignore all contrary evidence and inferences.” Id. (quotation omitted).
Discussion In his first point, Defen dant claims the trial court erred in denying his request for a mistrial after it “twice advised the court that it could not arrive at a decision . . . .” Defendant further contends that the trial court’s action was coercive and prejudicial because “it com pelled the jury to return guilty verdicts against [Defendant].” The State counters that the court’s instruction to the jury to continue deliberation s was not coercive

. “Coercion of a guilty verdict constitutes error.” State v. Manley , 414 S.W.3d 561, 57 0 (Mo.App.E.D. 2013). “A verdict is considered coerced when it appears, under all the circumstances, that the trial court was virtually directing that a verdict be reached and implying that it would hold the jury until that happened.” State v. Griffith , 312 S.W.3d 413, 421 (Mo.App.S.D. 2010). “Urging the jury to reach a verdict by a certain time or telling the jury that it is required to reach a verdict is also deemed coercive.” Manley , 414 S.W.3d at 570. “A reversal is required if it is conceivable th at a challenged instruction coerced the jury into returning a verdict, and nothing in the record is available to find otherwise.” Id. (quoting State v.
Greenlee , 327 S.W.3d 602, 616 (Mo.App.E.D. 2010) )

. As an initial matter, we address Defendant’s claim that the jury “ twice advised the court that it could not arrive at a decision.” (emphasis added). The jury submitted two questions to the trial court, the first of which asked: “We cannot come up with a decision today. Is it possible to
come back tomor row to deliberate tomorrow?” Nothing in this question suggests that the jury5

deemed itself unable to reach a verdict. The question simply reveals that that, at 5:50 p.m., the jury concluded that it could not reach a decision that day. Nor does the jur y’s second question

– “What do we do when we can not [sic] come to a unanimous decision[?]”

– communicate an inability to reach a unanimous decision. The question, asked in the future tense, presents a hypothetical question. The jury was contemplating the possibility of a hung jury, but it was not declaring deadlock. Assuming arguendo that the jury was hung when the trial court instructed it to continue deliberations, Defendant has not alleged, much less demonstrated, that the trial court “stated or impli ed that the jury would not be released until it returned a verdict, that it must reach a verdict by a certain time, or that it was required to reach a verdict . . . .” Manley , 414 S.W.3d at 570 (quoting Greenlee , 327 S.W.3d at 617). Indeed, Defendant ack nowledges in his brief: “[Defendant] does not allege that the trial court ‘positively misdirected’ the jury by telling it that it must continue to deliberate.” The trial court’s instruction did not require the jury to reach a verdict, but merely to conti nue deliberations. See id. Furthermore, the circumstances surrounding the jury’s deliberations and verdict do not suggest that the verdict was coerced. The jury deliberated over two hours before it asked the trial

court , “What do we do when we can not [sic] come to a unanimous decision[?],” and it
deliberated another one and one half hours after the trial court advised the jury to continue deliberating. “Missouri courts have found that a time period as short as approximately one

- half
hour was not a si gn that the verdict was coerced.” Manley , 414 S.W.3d at 571. Additionally, Defendant does not allege , and the record does not suggest , that the trial court knew the jury’s numerical split or the majority’s position, a factor which may, in certain circums tances, evidence
coercion. See State v. Saunders , 318 S.W.3d 745, 749 (Mo.App.W.D. 2010). Because6

Defendant fails to identify an y evidence that the trial court’s instruction to the jury to continue deliberations coerced a guilty verdict, we conclude that the trial court did not abuse its discretion
when it denied Defendant’s request for a mistrial. Point denied. In his second point, Defendant claims the trial court erred in denying his request for judgment of acquittal because the State presented insuf ficient evidence to prove he committed
the crimes of unlawful possession of a firearm and unlawful use of a weapon . Specifically, Defendant contends that the State “failed to prove every element of each offense beyond a
reasonable doubt in that the contra dictory descriptions of the gun given by Officers Jenkins, Castillo, and Barone cast doubt on whether the gun which was admitted as State’s Exhibit 1 was in fact the gun allegedly seized from [Defendant].” In response, the State asserts that it presented
sufficient evidence at trial “from which a reasonable juror might have found [Defendant] guilty of all the essential elements of the crime.” “To convict a defendant of a criminal offense, the State is required, as a matter of due process, to prove beyond a reasonable doubt each and every element of the offense charged.”
State v. Slocum , 420 S.W.3d 685, 687 (Mo.App.E.D. 2014). As charged here, a person commits the crime of unlawful possession of a firearm “if such person knowingly has any firearm in his or her possession and . . . [s]uch person has been convicted of a felony under the laws of this state . . . .” Mo. Rev. Stat. § 571.070.1(1). 2 A person commits the crime of unlawful use of a weapon
when he or she knowingly “[c]arries concealed upon or about his or her per son . . . a firearm . . .
.” Mo . Rev. Stat. § 571.030.1(1). To prove Defendant guilty of both offenses, the State was requi red to prove that Defendant knowingly possessed a firearm.

2 All statutory references are to RSMo 2000 as supplemented unless otherwise indicated7

Here, the State presented two police officers who testified that, at the time of his arrest,
Defendant carried a nine

- millimeter semiautomatic handgun in his waistband under his shirt.
This evide nce was sufficient to support the jury’s finding that on May 29, 2012, Defendant was carrying a gun. Discrepancies in the witnesses’ descriptions of the gun relate to matters of witness credibility, which are beyond our scope of review. See State v. Dvor ak , 295 S.W.3d 493, 504 (Mo.App.E.D. 2009). “[T]he credibility and the effects of conflicts or inconsistencies in testimony are questions for the jury.” Id. (quotation omitted). Based on our review of the record, we hold that the State adduced sufficien t evidence to prove the element of each crime beyond a reasonable doubt. Point denied. Conclusion The judgment of the trial court is affirmed.

Patricia L. Cohen, Presiding Judge Roy L. Richter, J., and Robert M. Clayton III, J., concur.