State v. Arnold, 59894

Decision Date13 March 1978
Docket NumberNo. 59894,59894
PartiesSTATE of Missouri, Respondent, v. Charles ARNOLD, Appellant.
CourtMissouri Supreme Court

Page 185

566 S.W.2d 185
STATE of Missouri, Respondent,
Charles ARNOLD, Appellant.
No. 59894.
Supreme Court of Missouri,En Banc.
March 13, 1978.
Rehearing Denied June 15, 1978.

John B. Newberry, Springfield, for appellant.

John D. Ashcroft, Atty. Gen., William F. Arnet, Asst. Atty. Gen., Jefferson City, for respondent.

Page 186


Appellant Charles Arnold was tried and convicted in the Circuit Court of Greene County, Missouri, of burglary and stealing. The court of appeals, Springfield district, reversed and remanded the case for a new trial. This court sustained respondent's application for transfer. Art. V, sec. 10, Mo.Const.

At 2:48 a.m. on the morning of January 13, 1975, officer Harold Wynn of the Springfield City Police Department observed a Pontiac automobile leaving the parking lot of the Glen Isle Shopping Center in Springfield, Missouri. No shops were open on the shopping center at that time. The automobile left the parking lot at a high rate of speed with its lights off. The lights were turned on about one-half block from the shopping center. Officer Wynn radioed headquarters that he was going to pursue the automobile and as he did so another police officer, Ronald Hardt, examined the stores in the shopping center. He found that the La Vogue Dress Shop had been broken into. When officer Wynn was advised of this a short time later he proceeded to stop the Pontiac. The doors of the dress shop had been checked by officer Hardt at 2:03 a.m., 45 minutes prior to Wynn's initial observation of the Pontiac and found to be secure.

Three persons were in the front seat of the Pontiac when officer Wynn stopped it. Appellant was on the right-hand side of the automobile next to the door. The occupants, including appellant, were placed under arrest. Officer Wynn observed that the entire automobile was dust covered except for the upper portion of the trunk and the portion around the locking mechanism where several handprints were outlined in the dust.

After the occupants had been taken from the scene, officer Wynn made an "inventory search" of the automobile. As he climbed in the back seat, the bottom part rotated forward allowing the back part to slide down. A gap was created between the seat and the trunk large enough to permit officer Wynn to peer into the trunk with his flashlight. Upon doing so he observed a large pile of clothing. The automobile was then taken into police custody.

A warrant was applied for based on the reports of officers Wynn and Hardt. A search of the trunk disclosed 72 items of ladies' apparel, all of which were positively identified by Leopold Marin, owner of the La Vogue Dress Shop, as items taken from the store. The stolen merchandise consisted of coats, pantsuits and slacks. The trunk also contained a box of "craftsman tools," a pry bar, and a tire tool. Prior to the search the trunk had remained locked.

Appellant raises several objections to the trial court's failure to sustain his motion to suppress. Appellant contends that evidence, i. e., the 72 items of clothing, was unlawfully seized for three reasons: (1) there was no probable cause for the arrest of appellant and therefore no lawful search of the automobile incident to the arrest; (2) at the time of the search appellant was no longer at or near the automobile; therefore, a warrantless search to protect evidence or officers from injury was not necessary; and (3) because the initial view of the evidence by officer Wynn was part of an unreasonable search, the subsequent warrant based upon what was seen in the first unreasonable search uncovered "fruit of the poisonous tree" which should have been suppressed.

It is unnecessary to consider these arguments because appellant lacks standing to raise objections to the search of the Pontiac in which he was a passenger. Possession at the time of the alleged wrongful search is not an element of the crimes for which appellant has been charged; therefore, he has no automatic standing to contest the search. Brown v. United States, 411 U.S. 223, 229, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); Jones v. United States, 362 U.S. 257, 263, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Appellant has shown neither an ownership nor proprietary interest in the automobile. State v. McCarty, 460 S.W.2d 630, 635 (Mo.1970). The law of Missouri has consistently been that a casual passenger has no standing to challenge a search of an automobile.

Page 187

State v. Thompson, 490 S.W.2d 50 (Mo.1973); State v. Heitman, 473 S.W.2d 722 (Mo.1971); State v. Browner, 514 S.W.2d 355 (Mo.App.1974). Appellant has failed to sustain his burden of proving that he has standing to raise questions as to the legality of the search of the automobile and seizure of its contents. State v. Hornbeck, 492 S.W.2d 802, 808 (Mo.1973).

Appellant's remaining point is that the trial court erred in not sustaining his motion for a directed verdict of acquittal at the close of the state's evidence. He argues that the mere fact of his presence in the automobile does not establish his possession of the stolen goods found therein nor his knowledge of their presence in the trunk.

Appellant argues that the evidence fails to show any form of "affirmative participation" on his part. State v. Cobb, 444 S.W.2d 408, 411-412 (Mo.banc 1969), and State v. Irby, 423 S.W.2d 800, 803 (Mo.1968), contain language to the effect that evidence of some form of affirmative participation is required. Both of those cases rely on State v. Butler, 310 S.W.2d 952 (Mo.1958). In Butler the defendant was charged with breaking out of and escaping from the Dunklin county jail. Defendant objected to the sheriff's testimony that several bars were cut on the door of the jail on the grounds that no evidence was introduced to show defendant personally participated in the bar cutting. Other evidence showed that defendant was present at the time of the cutting and that he used the opening to make his escape. The court ruled the evidence competent and relevant on the issue of whether or not there had been a breaking of the jail. The court stated at 957:

" . . . In order to sustain a conviction for breaking the county jail and escaping it is not necessary to prove that the defendant personally cut the bars of the jail door. Defendant was charged singly and in joint concert with breaking the county jail and escaping. It is well settled that a party may be charged with the commission of the felony and be held under such charge for being present and participating in concert with the others in the commission of the crime, or for being present and aiding and assisting another in doing it. It is not necessary that he, personally, have done all the things which together make up the elements of the crime. State v. Sheard, Mo.Sup., 276 S.W.2d 196, certiorari denied, 352 U.S. 849, 77 S.Ct. 68, 1 L.Ed.2d 60; State v. Whitaker, Mo.Sup., 275 S.W.2d 316; State v. Chernick, Mo.Sup., 278 S.W.2d 741."

As the Butler case illustrates, the requirement of "affirmative participation" may be satisfied by inference and the evidence need not directly place the defendant in the act of committing the crime for which he is charged. This principle was recognized in State v. Reed, 453 S.W.2d 946 (Mo.1970), where the court held at 948-949: " . . . (I)t has also been held that presence, companionship and conduct before and after the offense are circumstances from which one's participation in the criminal intent may be inferred. As stated in State v. Ramsey, Mo., 368 S.W.2d 413, 417, 'Evidence fairly showing any form of affirmative participation in a crime is sufficient to support a conviction.' It is not necessary that the defendant personally did all of the things which together make up the elements of the crime. State v. Butler, Mo., 310 S.W.2d 952, 957." See also State v. Corbin, 186 S.W.2d 469, 471 (Mo.1945); State v. Nichelson, 546 S.W.2d 539, 543 (Mo.App.1977); State v. Burks, 521 S.W.2d 11, 15 (Mo.App.1975); State v. Jackson, 519 S.W.2d 551, 557 (Mo.App.1975); State v. Johnson, 510 S.W.2d 485, 489 (Mo.App.1974).

The state's case was based on circumstantial evidence. In State v. Franco, 544 S.W.2d 533, 534-535 (Mo.banc 1976), this court considered the appropriate standard of appellate review in such a case:

" . . . First, the facts in evidence and all favorable inferences reasonably to be drawn therefrom must be considered in the light most favorable to the state and all evidence and inferences to the contrary must be disregarded. State v. McGlathery, 412 S.W.2d 445, 447 (Mo.1967); and State v. Chase, 444 S.W.2d 398 (Mo.banc 1969).

Page 188

Second, when the state's case rests upon circumstantial evidence, 'the facts and circumstances must be consistent with each other and with the hypothesis of defendant's guilt, and they must be inconsistent with his innocence and exclude every reasonable hypothesis of his innocence.' State v. Ramsey, 368 S.W.2d 413, 416 (Mo.1963). See also: State v. Thomas, 452 S.W.2d 160, 162 (Mo.1970). Third, the prevailing circumstantial evidence rule, supra, is realistically tempered in its application since '(i)n a case involving circumstantial evidence the circumstances need not be absolutely conclusive of guilty, and they need not demonstrate impossibility of innocence(;) . . . the mere existence of other possible hypothesis is not enough to remove the case from the jury.' State v. Thomas, supra, at 162."

The evidence here would support the following findings: 1. Between 2:03 a.m. and 2:48 a.m., on January 13, 1975, forcible entry into the La Vogue Dress Shop in the Glen Isle Shopping Center, Springfield, Missouri, was gained through the front door and 72 items of ladies' apparel were taken therefrom. The fact that "some" quarters were found lying on the floor after the discovery of the burglary would support the inference that the burglars (or burglar) were in haste. 2. At 2:48 a.m., a Pontiac automobile driven by one Riley and occupied by...

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