State v. Brown

• Decision Date: 12 November 1969
• Docket Number: No. 53046,53046
• Citation: 172 N.W.2d 152
• Parties: STATE of Iowa, Appellee, v. Theresa Rosalee BROWN, Appellant.
• Court: Iowa Supreme Court

Page 152

172 N.W.2d 152

STATE of Iowa, Appellee, v. Theresa Rosalee BROWN, Appellant.

No. 53046.

Supreme Court of Iowa.

Nov. 12, 1969.

Morris & Morris, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Larry Seckington, Asst. Atty. Gen., and Ray A. Fenton, County Atty., Des Moines, for appellee.

MASON, Justice.

A Polk County grand jury returned an indictment charging Theresa Rosalee Brown with larceny of property valued in excess of $20 contrary to section 709.1, Code, 1966. Trial to a jury resulted in a verdict of guilty. Her motions in arrest of judgment, exceptions to instructions and for new trial were overruled and defendant was sentenced to the women's reformatory for a term not to exceed five years. Code section 709.2.

Defendant seeks reversal of her conviction challenging sufficiency of the evidence to sustain the verdict and correctness of the court's instruction bearing on aiding and abetting.

On defendant's appeal from criminal conviction based on jury verdict challenging sufficiency of evidence to sustain the verdict we view the evidence in the light most favorable to the State and accept as established all reasonable inferences tending to support action of the jury. It is necessary to consider only the supporting evidence whether contradicted or not. State v. DeRaad, Iowa, 164 N.W.2d 108, 109--110, and citations; State v. Medina, Iowa, 165 N.W.2d 777, 781--782; State v. Cornelius, Iowa, 165 N.W.2d 810, 811; State v. Hunley, Iowa, 167 N.W.2d 645, 649; and State v. Badgett, Iowa, 167 N.W.2d 680, 684.

I. Friday morning December 8, 1967, defendant and her 13-year-old son Clifford were distributing new directories for the telephone company in the 3000 block of 78th Street in Des Moines. The books were carried in defendant's automobile while she and her son each delivered directories to residences from a list of subscribers furnished by the company, returning to the car for additional books as needed or to move to a new spot from which they both worked.

About 8 a.m. defendant made her first stop of the day at the Weston home, 3000 78th Street. Mrs. Weston was just getting ready to leave for work when she saw defendant and a young man in a car parked in front of the house. Defendant called from the car, 'Is this the Westons?' or 'Is this 78th?' Mrs. Weston answered, 'Yes.' Clifford got out of the car and delivered three telephone books to her, coming 10 to 20 feet from the front door as defendant backed her car into the Weston driveway, turned and parked on the opposite side of the street. Mrs. Weston said she was not aware of having seen defendant or Clifford before. She took the books into her home, placed them on a coffee table in the living room area. On a chair in this same area were six boxes of wearing apparel valued at $70 which Mrs. Weston had purchased the Sunday before as Christmas presents. The gift boxes bearing identifying marks were visible from her front door.

After placing the books Mrs. Weston returned outside, saw Clifford taking more directories from the rear seat of his mother's car. Mrs. Weston went to work leaving the front door unlocked as she was expecting a lady friend to pick up a uniform.

Mrs. Richard Bond of 3004 78th testified that about 9 a.m. December 8 she saw a lady and boy pull up in a light-colored car and stop in front of the Weston home. The boy got out of the car, entered the home through the front door as defendant backed the car into the Weston driveway. Mrs. Bond saw the boy come from the Weston home carrying six Christmas packages, start to get into the car. She went to another part of the house to call Mrs. Weston and report the incident. When Mrs. Bond returned to her front window they were gone.

After Mrs. Bond's telephone call Mrs. Weston reported the theft to the Urbandale police. In response to a return call from the police about 11 a.m. she went to 92nd and Boston, saw defendant and her son in the car which the police had stopped, described her Christmas packages to the police, showed the sales slips and identified the gift boxes on the back floor of defendant's automobile as her property.

After some pictures of the boxes were taken at the Urbandale police station they were returned to Mrs. Weston.

Mrs. Bond testified the boy she saw leaving the Weston home at 9 a.m. with the packages was the one she had seen around 8 a.m. bringing telephone books to her door from a car and she recognized the lady driving at 9 a.m. as the one she had seen around 8 a.m.

The arresting officers and an Urbandale dispatching officer were the other State witnesses.

Defendant and her son both testified in defense. They do not dispute Clifford took the six Christmas boxes from the Weston home which were found in defendant's car when the two were arrested.

Clifford testified his mother knew nothing of his theft of the merchandise and was not aware the packages were in the car until she discovered them after leaving the Weston neighborhood. When his mother insisted he point out the house from which he had taken the boxes they returned to the Weston house about 9 a.m. He went into the house but returned with the six packages telling his mother this was not the house, although he knew differently.

Defendant as a witness declared she knew nothing of the theft until about 45 minutes after leaving the Weston house when she discovered the packages on the rear floor as she turned to get more directories. She immediately insisted Clifford tell her where he had gotten them. She also maintains that when Clifford went to the Weston house on their second trip he removed the packages from the car, carried them into the house, but brought them back claiming Weston's was not the right place.

Mrs. Brown said she was still trying to locate the house from which Clifford said he had taken the merchandise when stopped by the police.

The police officers testified defendant gave them a similar account when arrested.

The foregoing constitutes defendant's explanation of her possession of the recently stolen Weston packages.

The State tried the case on the theory defendant was guilty as an aider and abettor. Code section 688.1.

II. 'In a criminal action the cause should be submitted to the jury and the court should not direct a verdict of acquittal if there is any substantial evidence reasonably tending to support the charge. (Citing authorities).' State v. Miskell, 247 Iowa 678, 686--687, 73 N.W.2d 36, 41. See also State v. Frink, 255 Iowa 59, 64, 120 N.W.2d 432, 435; State v. Horrell, 260 Iowa 945, 948, 151 N.W.2d 526, 529; and State v. Wimbush, 260 Iowa 1262, 1264, 150 N.W.2d 653, 654.

'Either direct or circumstantial evidence, or both, on each and every essential element to conviction is sufficient to warrant a finding of guilty, if it satisfies triers of facts beyond a reasonable doubt. For this purpose circumstantial evidence may be equal in value to and sometimes more reliable than direct evidence. See State v. Manly, 211 Iowa 1043, 1050, 233 N.W. 110, 113, and State v. Heinz, 223 Iowa 1241, 1255, 275 N.W. 10, 19, 114 A.L.R. 959. However, where circumstantial evidence alone is relied on as to any one or more of essential elements the circumstance or circumstances must be entirely consistent with defendant's guilt and wholly inconsistent with any rational hypothesis of defendant's innocence and so convincing as to exclude a reasonable doubt that defendant was guilty of the offense charged. * * * (Citing authorities).' State v. DeRaad, supra, Iowa, 164 N.W.2d at 109--110.

The State must prove all essential elements of the crime charged and mere presence at the scene of a crime is not enough to prove defendant committed the offense or that she did aid and abet its commission. The proof whether by circumstantial or direct evidence must generate something more than suspicion, or speculation, or conjecture. State v. Daves, 259 Iowa 584, 585--586, 144 N.W.2d 879, 880--881, and citations.

'* * * To aid or abet means to assent to an act or to lend countenance or approval either by active participation in it or by some manner encouraging it. * * * (Citing authorities). Knowledge is an essential element of aiding and abetting. * * * (Citing authorities). Guilt of a person charged with aiding and abetting must be determined upon the facts which show his part in the crime and does not depend on another's degree of guilt. * * (Citing authorities).' State v. Daves, supra, 259 Iowa at 586, 144 N.W.2d at 881.

This is seldom capable of direct proof, but may be inferred from the proven circumstances. State v. Myers, Iowa, 158 N.W.2d 717, 720--721. Participation in criminal intent may be inferred from presence, companionship and conduct before and after the offense is committed. State v. Myers, supra, State v. McClelland, Iowa, 162 N.W.2d 457, 463.

In State v. Kittelson, Iowa, 164 N.W.2d 157, 161--162, the same principles are expressed in somewhat different language.

The finding of guilt by the trier of fact is binding on us unless we are satisfied it is without substantial support in the evidence or is clearly against the weight thereof since it is not our function to decide issuable questions of fact properly submitted to the jury. State v. Daves, 259 Iowa at 585, 144 N.W.2d at 880, State v. Horrell, 260 Iowa at 948, 151 N.W.2d at 528--529, both supra.

The trial court did not err in submitting the charge to the jury for the reason that it cannot be said the verdict is without substantial support in the evidence.

Mrs. Bond, an eyewitness, saw defendant back her car into the Weston driveway, wait while Clifford entered the home and returned to the car with six Christmas packages. From defendant's 8 a.m. visit to the Weston home the jury could properly infer she knew its occupant would be absent and the front door unlocked when she returned on the second trip at 9 a.m. She admits she then encouraged her 13-year-old son to enter the unoccupied home. The jury was not...