State v. Barnum

• Decision Date: 21 March 2000
• Citation: 14 S.W.3d 587
• Parties: (Mo.banc 2000) . State of Missouri, Respondent, v. Norma Barnum, Appellant. Case Number: SC81962 Supreme Court of Missouri Handdown Date: 0
• Court: Missouri Supreme Court

14 S.W.3d 587 (Mo.banc 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

State of Missouri, Respondent, v. Norma Barnum, Appellant.

Case Number: SC81962

Supreme Court of Missouri

Handdown Date: 03/21/2000

Appeal From: Circuit Court of Pettis County, Hon. Donald Lloyd Barnes

Counsel for Appellant: Nancy Vincent

Counsel for Respondent: Daniel W. Follett

Opinion Summary:

Norma Barnum accompanied others who attacked a fourteen-year-old girl. She was convicted of first degree assault as an accomplice and appeals.

AFFIRMED.

Court en banc holds:

(1) The evidence sufficed to convict Barnum. Missouri eliminated the distinction between principals and accessories. All persons who act in concert are equally guilty. Mere presence at a crime scene, alone or with a refusal to interfere, will not support a conviction, but encouragement will. Barnum was present during the planning of the attack, accompanied the attackers to and from the attack, watched and laughed and yelled to kill the girl during the attack, and left the girl beaten, naked, and alone.

(2) Statute and Supreme Court rule forbid comments concerning the defendant's exercise of the right not to testify. The prosecutor's remarks during voir dire did not pertain to Barnum's failure to testify but were merely restatements of the law and general comments concerning the rights of any defendant in a criminal trial. No manifest injustice resulted. The prosecutor's use of phrases in closing argument such as "uncontradicted" evidence did not violate Barnum's rights.

(3) The evidence of the victim's residence, nightmares, and fear resulting from the attack was relevant to establish an element of the crime, "serious physical injury," and was mentioned only briefly.

Opinion Author: William Ray Price, Jr., Chief Justice

Opinion Vote: AFFIRMED. All concur.

Opinion:

Opinion modified by Court's own motion on April 25, 2000. This substitution does not constitute a new opinion.

Norma Barnum ("Appellant") was convicted of assault in the first degree, in violation of section 565.050, RSMo 1994, as an accomplice in the beating of Candis West. She appeals raising the following three issues: (1) whether the evidence was sufficient to support the conviction; (2) whether statements concerning a defendant's right not to testify made during voir dire resulted in plain error; and (3) whether victim impact testimony presented by Candis resulted in plain error. We affirm.

I.

At about 1:00 a.m. on August 11, 1997, fourteen-year-old Candis West snuck out of her home and went to visit her boyfriend, Brandon Srader. When she arrived at the Srader residence, Brandon was not home but Appellant, his nineteen-year-old sister, was. Candis and Appellant decided to go for a walk. When they returned at approximately 2:00 a.m., Brandon and Christina Cassidy, Jessica Griffin, Heather Belt, Travis Laster, and Michael Jackson were at the Srader home. Candis did not know Christina, Jessica, or Heather, but quickly discovered that Brandon had begun a relationship with Jessica. Candis told Christina and Heather she was upset with Brandon's involvement with Jessica.

Christina and Heather told Jessica what Candis had said. The three girls concocted a plan to take Candis somewhere and beat her up. Everyone at the house, except for Candis and Michael, was aware of the girls' intention to attack Candis. The original plan was to carry out the beating at Wal-Mart. Travis drove Brandon, Candis, Jessica, Christina, Heather, and Appellant to the Wal-Mart store where the girls used the bathroom. The attack did not begin, however, because Travis secretly told the other girls that he knew of a better spot for the beating. Travis then drove the entire group to a low-water bridge in Pettis County, Missouri.

As everyone got out of the vehicle, Christina hit Candis in the face and began pulling her hair. Candis did not fight back but instead fell to the ground. As Christina began to kick Candis, Jessica and Heather joined in. Over the course of one hour, the three girls dragged Candis by her hair over the concrete, attempted to burn her hair with a lighter, forced her to remove all her clothing, spanked her with her shoes, threw her into the water, and tossed her clothes in after her. Brandon, Travis, and Appellant stood and watched the entire assault on Candis.

At some point, Appellant, who was laughing during the beating, yelled, "yeah, yeah, let's kill her, kill her . . . run her over with the van." Eventually, Travis told Christina, Jessica, and Heather that it was time to stop. The group returned to the vehicle, leaving Candis in the water, and Christina warned Candis that if she moved, they would come back and kill her. Appellant accompanied the group as they left, making no attempt to assist Candis or get medical assistance for her.

Candis, naked and severely beaten, was eventually able to stop a passing car. The driver gave her a flannel shirt and a jacket, and drove her to the police station in Sedalia. The police briefly spoke to Candis, photographed her injuries, and called for an ambulance. Before leaving to go to the hospital, Candis gave Sgt. Mike Koenig the names and addresses of the individuals involved in the attack. Sgt. Koenig's investigation uncovered Candis' clothing and jewelry under the bridge. Travis, Appellant, and "three other white female juveniles" were arrested.

At the hospital, Candis was treated for a crushed eye bone, a broken nose, and two broken ribs. Candis was later sent by ambulance to a hospital in Columbia where more X-rays and a CAT scan were performed. Eventually, she had to have reconstructive surgery on her eye socket, and was plagued by vision problems and headaches.

Appellant was charged with the first-degree assault of Candis West under an accomplice liability theory and was tried before a jury on February 25, 1998. During voir dire, the prosecutor said:

The second term that we talk about probably endlessly and to the point that you're all tired of it is the burden of proof. And that's the idea that it's up to me to prove to you that the Defendant did what we charged. It's not up to the Defendant to prove anything. The Defendant doesn't have to present any evidence, doesn't have to testify, and that's our legal system. That's the way it works in our legal system.

At no point during voir dire did defense counsel object to this statement.

Appellant chose not to testify on her own behalf at trial. The State presented six witnesses; Appellant presented none. Candis' testimony included evidence that after the attack she moved to "Girlstown" and had nightmares that "they'd come back for [her]." At the conclusion of the evidence, the court overruled Appellant's motion for judgment of acquittal. The jury found Appellant guilty of assault in the first degree and recommended a sentence of ten years imprisonment. The court sentenced Appellant in accordance with the jury's recommendation.

II.

The law of accessory liability emanates from statute, as construed by the courts. State v. Richardson, 923 S.W.2d 301, 317 (Mo. banc 1996). "A person is criminally responsible for the conduct of another when either before or during the commission of an offense, with the purpose of promoting the commission of the offense, he aids or agrees to aid or attempts to aid such other person in planning, committing or attempting to commit the offense." Section 562.041.1(2), RSMo 1994. This subsection is designed to make individuals who could not be guilty of a crime solely on the basis of their own conduct, guilty nonetheless as an accessory. Comment, section 562.041.1(2).

Appellant argues that because she did not actively participate in the planning or actual beating of Candis, and because the attackers did not act directly on the suggestions she shouted during the attack, the evidence was insufficient to support her conviction of first-degree assault. Where there is a challenge to the sufficiency of the evidence, "the evidence together with all reasonable inferences is viewed favorably to the verdict and evidence or inferences to the contrary are ignored." State v. Mallett, 732 S.W.2d 527, 534 (Mo. banc 1997). Review is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989).

Missouri eliminated the distinction between principals and accessories in 1979, and it is now the law that all persons who act in concert are equally guilty. Bass v. State, 950 S.W.2d 940, 942 (Mo. App. 1997) (citing State v. Isa, 850 S.W.2d 876 (Mo. banc 1993). The doctrine of accomplice liability embodied in section 562.041.1(2) "comprehends any of a potentially wide variety of actions intended by an individual to assist another in criminal conduct." The evidence need not show the defendant personally committed every element of the crime. State v. Burch, 939 S.W.2d 525, 529 (Mo. App. 1997). Richardson, 923 S.W.2d at 317.

While mere presence at a crime scene, considered alone or in combination with a refusal to interfere, is insufficient to support a conviction, "[t]he broad concept of 'aiding and abetting' plainly encompasses acts that could be construed as 'encouragement' or its derivation." Id. Mere encouragement is enough. Id. (citing State v. Stickdale, 415 S.W.3d 769, 772 (Mo. 1967)); Burch, 939 S.W.2d at 529. Encouragement is the equivalent of conduct that "by any means countenances or approves the criminal action of another." Richardson, 923 S.W.2d at 318 (citing State v. Stidham, 305 S.W.2d 7, 15 (Mo. banc 1957)). "Countenances or approves" includes "encouraging or exciting [a criminal act] by words, gestures, looks, or signs." Stidham, 305 S.W.2d at 15. In fact, associating with those that committed the crime before, during, or after its occurrence, acting as part of a show of...