State v. Clark, 40628

• Decision Date: 18 March 1980
• Docket Number: No. 40628,40628
• Citation: 596 S.W.2d 747
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Tommy CLARK, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 747

596 S.W.2d 747

STATE of Missouri, Plaintiff-Respondent, v. Tommy CLARK, Defendant-Appellant.

No. 40628.

Missouri Court of Appeals, Eastern District, Division Two.

March 18, 1980.

David V. Bear, Bear, Hines & Thomas, Columbia, for defendant-appellant.

John Ashcroft, Atty. Gen., Paul Robert Otto, Steven D. Steinhilber, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.

KELLY, Chief Judge.

Appellant, Tommy Clark, was convicted in the Circuit Court of Audrain County of aiding and abetting Viola Clark, his former wife, between December 1, 1976, and May 1, 1977, in the concealment of an event required to be reported by law and regulation of the State of Missouri and the United States relating to public assistance, to-wit, the return of a parent to the home, § 205.967(2) RSMo. (1975 Supp.), and was sentenced to a term of three months imprisonment in the Audrain County Jail and fined a sum of $1,000.00 in accord with the jury verdict. He has appealed this conviction and seeks a reversal thereof and discharge from said charge or, in the alternative, a new trial. For reasons hereinafter set out we reverse the conviction and remand the cause to the trial court with instructions.

On appeal the appellant presents five Points Relied On which he contends entitles him to the relief prayed for. Because of the decision we have reached we find it necessary to consider only one of these, i. e. whether the trial court erred in denying his motion for a judgment of acquittal at the close of all of the evidence because there was no evidence adduced by the state to prove beyond a reasonable doubt that (1) he knew the principal in the first degree was concealing or failing to report his presence, (2) he knew her failure to report his presence in the home was unlawful, and (3) he committed any physical or verbal affirmative act which aided or abetted her in any manner in her failure to report to the welfare authorities his return to the home.

In reviewing the evidence in light of general principles applicable to courts of appeal we are not unmindful of the rule that in determining whether there is sufficient evidence to support a criminal conviction, a reviewing court considers as true the evidence most favorable to the state and that all favorable inferences reasonably to be drawn from the evidence must be indulged in to support the conviction. Our review of the evidence is limited to a determination whether substantial evidence supports the verdict of the jury and our function is not to substitute our judgment for that of the jury. We determine only whether the evidence is sufficiently substantial to make a submissible case. Substantial evidence means evidence from which the trier of facts could find the issue in harmony therewith. We do not weigh the evidence. State v. Longmeyer, 566 S.W.2d 496, 499(1-4) (Mo.App.1978).

The evidence, viewed in this light, ¹ is that appellant and Viola Clark (hereinafter Viola) were married in June, 1969. Appellant had a minor son by a former marriage and two children, both sons, were born of his marriage with Viola. When the boys were born was not developed in the transcript of the record, other than Viola's testimony that they were born during the time she was on welfare. Sometime in 1973 Viola went on welfare, ADC. The expenses of the birth of both of the children were paid for by Medicaid. At all times relevant to the charge involved in this case Viola and the three children resided in "urban renewal public housing" at 915 Garfield, Mexico, Missouri. She alone signed the lease for these premises and paid the $26.00 monthly rent to occupy them.

Viola continued drawing welfare, ADC, based upon appellant's continued absence from the home, until sometime in February, 1976, when she went to the prosecuting attorney's office to seek a non-support warrant against appellant. When she told the prosecuting attorney that appellant "was in and out" of the house the prosecuting attorney advised her that she had discovered that appellant was living in the home and for Viola to avoid felony proceedings she should divorce the appellant and "go off welfare."

Viola divorced appellant on April 6, 1976, and went off welfare between February, 1976, and June, 1976. Appellant left the home on Garfield following the divorce but returned there sometime in August or September of 1976. Between December 1, 1976, and May 1, 1977, appellant "resided" with Viola at 915 Garfield with his three sons. He wasn't there every evening, but often. He would have dinner there three or four nights a week, and on occasion stayed all night and slept with Viola. He kept some of his clothing and personal belongings, including "guns and things like that," in the home. She washed his clothes and cooked his meals. She told him why he couldn't live there in February, 1976, after she had talked with the prosecuting attorney, and also told him at that time why she was divorcing him, but he ignored her and came and went as he wanted.

Viola admitted that appellant never told her not to report his presence in the home nor did he tell her to keep it a secret. According to her testimony appellant wasn't willing to put enough money into the home for her to sustain the children and because he did not give her enough money to take care of his children she had to get it somewhere so she turned to ADC. This is how he encouraged her not to report his presence in the home.

There was other evidence by an investigator of the prosecuting attorney's office that he observed appellant entering and leaving the home at least three times during the period covered by the Information and that appellant kept two automobiles he owned, a 1973 Chrysler and a 1968 Dodge, near the 915 Garfield address between March 24, 1977, and April 4, 1977. At noon on the 23rd of March, 1977, appellant drove up in front of the house, got out of his car, and went inside the house without knocking on the door. This same investigator testified that on September 26, 1977, appellant stated to him that he had been living with Viola "more off than on" since the time of the divorce and, on a second occasion appellant told him that he had observed Viola and her sister carrying all of his meat out of the house. Later, in November of 1977, while interviewing the appellant in the presence of his counsel, appellant told him that he had lived with Viola at 915 Garfield all but a couple of weeks since the divorce.

Susan Lee Lowery, an income maintenance case worker of the Division of Family Services of Audrain County, testified that it was her responsibility to determine the eligibility of different clients and the eligibility of the different applicants for different assistance programs offered by the state. Viola was one of her clients. According to Ms. Lowery, she must reinvestigate every case at five to six month intervals by contacting the client and have the client fill out a set of forms concerning her eligibility to receive or to continue to receive welfare payments. Among the questions which must be answered are whether there has been a change of residence, whether anyone has come in or left the home, whether her income has changed, and whether her resources have changed. She identified three documents as forms filled out by Viola on November 11, 1976, January 27, 1977 and May 4, 1977, respectively. Ms. Lowery also testified that she explains the form to the applicant and explains the penalties involved in receiving assistance if a person should make false statements and conceal information, and then she has the applicant sign the form after going over it with her. Each of these forms was signed by Viola. The three documents ² were admitted into evidence as State's Exhibits 1, 2 and 3. Between December, 1976, and May, 1977, Viola was receiving $208.00 per month ADC, and between February and April, 1977, she received food stamps and Medicaid authorized under Missouri law. Viola did not report the return of appellant to the home during this period to Ms. Lowery.

Ms. Lowery further testified that during the period of December 1, 1976, and May 1, 1977, we "sent two letters to him (appellant) but he did not respond."

The appellant testified in his own behalf, and denied that he lived at 915 Garfield during the times charged in the Information. According to his testimony, he lived in Montgomery City, Missouri, during that time, in a house owned by his father and with another woman. He explained his presence in the home on Garfield by categorizing the times he was there as "visits" to his children and his former wife. He explained the presence of his Chrysler at the home on Garfield, testifying that...