State v. Connor, WD

• Decision Date: 22 March 1983
• Docket Number: No. WD,WD
• Citation: 651 S.W.2d 550
• Parties: STATE of Missouri, Respondent, v. Whitney CONNOR, Appellant. 33896.
• Court: Missouri Court of Appeals

Page 550

651 S.W.2d 550

STATE of Missouri, Respondent, v. Whitney CONNOR, Appellant.

No. WD 33896.

Missouri Court of Appeals Western District.

March 22, 1983.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

May 3, 1983.

Application to Transfer Denied

June 30, 1983.

Linda Murphy, Nangle & Nangle, P.C., Clayton, for appellant.

John Ashcroft, Atty. Gen. and Kristie Green, Asst. Atty. Gen., Jefferson City, for respondent.

Before SOMERVILLE, C.J., and TURNAGE and LOWENSTEIN, JJ.

LOWENSTEIN, Judge.

In a court-tried case, the appellant Whitney Connor was found guilty as an accomplice under § 565.050, RSMo 1978 ¹ of first degree assault where a deadly weapon was used. He was sentenced to ten years in prison for this Class A felony.

On October 14, 1981, Danny Julian committed an armed robbery of a jewelry store in Kirksville, Missouri. Julian was the perpetrator of the assault for which Connor was charged. At the time Connor was engaged to Julian's sister. A sizeable quantity of jewelry which was contained in display trays was taken in the robbery. The robbery occurred at 10:00 o'clock in the morning. The testimony of the victim was that Julian alone committed the robbery.

Early that afternoon, Trooper Romanus of the Highway Patrol stopped a car being driven by Connor on Highway 63 in the area of the Randolph-Macon County line. The automobile was a green Oldsmobile matching the description of the automobile involved in the jewelry store robbery. After the trooper flashed his lights, Connor pulled the car over on the shoulder of the road. The trooper parked his car some three or four feet behind the Oldsmobile. The Oldsmobile belonged to a Mr. McSpadden who was one of two roommates of Connor in Kirksville where Connor attended Northeast Missouri State University. Romanus initially noticed one person in the car, that being Connor. Connor came back to the patrol car and asked if he had been speeding. The trooper said "no". Connor voluntarily gave Romanus his driver's license. Romanus then noticed Danny Julian curled up on the floor of the passenger side of the Oldsmobile. After then ordering Julian out, Romanus ordered Connor and Julian to stand by the right front fender of the Oldsmobile with their hands on the hood. The trooper was unable to find any identification for Julian in a duffle bag in the back of the car. The trooper then had Julian get the keys and open the trunk. Julian and Connor were then placed back at the right front of the Oldsmobile while Romanus searched the trunk. Romanus started on the right side of the trunk and worked his way over to the left side while trying to keep an eye on the two. While he was searching the trunk, the two were talking while sitting on the right side of the hood of the Oldsmobile. Just as Romanus discovered a green trash bag on the left side of the trunk, Julian suddenly appeared, grabbed his hand and jerked his service revolver out of his holster. The trooper grabbed the barrel of the gun with his left hand and forced Julian back toward the patrol car. Although Julian still had the gun, the trooper pushed him back onto the hood while still trying to watch Connor. Just as the trooper was about to win the struggle for the pistol, Julian's expression changed from being confident to scared and then he yelled, "Whitney, come back here, you know what needs to be done, let's get this over with." As the struggle continued, the trooper noticed Connor coming around the right rear corner of the Oldsmobile. At that point Romanus decided he could not fight the two of them and he ran across the highway. Several shots were fired by Julian with the service revolver. Romanus was shot several times, causing him severe injury. From the other side of the road, Romanus, who was then on the ground, saw Julian, standing next to Connor, put the gun in his waistband and heard him say to Connor something to the effect, "let's go", and then he ran directly to the patrol car, got in and drove away. Connor stayed at the scene. Romanus did not remember Connor speaking to him or helping him. At no time during the struggle with Julian did Connor make any threatening gesture toward the officer.

A later search of the Oldsmobile netted two trash bags in the trunk filled with jewelry and property taken in the morning robbery. That same afternoon, law enforcement personnel went to the house where Connor was living and discovered in the driveway several items of jewelry taken in the robbery. Also found were boxes and display trays from the robbery, which had a treadmark on them, apparently caused by a car having been driven over them.

A statement taken from Connor was introduced by the state. In it he said that Julian was visiting him in his apartment at the time of the incident and that the visit had commenced two days prior on October 12. On October 14, Connor got up at 9:30 in the morning. Roommate McSpadden was still asleep and Julian was sleeping on the living room floor. Connor went back to his room, and at 9:45, Julian left the apartment taking the Oldsmobile and returned at 10:09. Connor asked McSpadden if he could borrow the car to take him and Julian to St. Louis to pick up their girlfriends. Before leaving, Julian opened the trunk and Connor saw in it a full green garbage bag. Julian closed the trunk and drove five miles out of town and then asked Connor to drive. The statement is generally consistent with the officer's testimony as to the struggle and shooting. Connor said he heard Julian say, "Hey, Whitney", at which point Connor hopped off the hood of the car. Connor claims to have talked to the officer following Julian's departure and to have stopped a truck for help. He denied any knowledge as to the jewelry store robbery or the stolen property.

Connor here contends his motion for judgment of acquittal at the end of the state's case should have been sustained because of insufficient evidence of Connor's affirmative participation in the assault, insufficient proof he was an aider in nor had the mental intent to commit the assault and that the evidence against him was circumstantial and not inconsistent with any theory of his innocence.

Under the new 1979 Missouri Criminal Code, the sections relevant to finding the appellant guilty as an accomplice in the instant case are:

Section 562.016 which provides in part:

1. Except as provided in section 562.026, a person is not guilty of an offense unless he acts with a culpable mental state, that is, unless he acts purposely or knowingly or recklessly or with criminal negligence, as the statute defining the offense may require with respect to the conduct .... [Emphasis added.]

Section 562.036 which provides:

A person with the required culpable mental state is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is criminally responsible, or both. [Emphasis added.]

Section 562.041 which provides in pertinent part:

1. A person is criminally responsible for the conduct of another when

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(2) Either before or during the commission of an offense with the purpose of promoting the commission of an offense, he aids or agrees to aid or attempts to aid such other person in planning, committing or attempting to commit the offense. [Emphasis added.] ²

Thus, sections 562.036 and 562.041 combine to require the trier of fact to make two separate findings before an accomplice may be held responsible for the offense of another. The trier of fact must first find that the defendant "purposefully promoted an offense ", and had the requisite "culpable mental state " for all crimes for which he is to be held liable. Upon a finding of purpose, the defendant is deemed "criminally responsible" for the conduct of the principal. The general rule is that if the alleged accomplice has the purpose to promote the offense, he necessarily will have the required culpable mental state for that offense. See State v. White, 622 S.W.2d 939 (Mo. banc 1981).

Connor's contention that the trial court erred in denying his motion for acquittal at the end of the state's case is ruled against him. The appellant is precluded from raising the claim that there was insufficient evidence to submit the case since he presented evidence on his own behalf (testimony of his wrestling coach and his fiance). He thus waived any claim of error as to his motion for acquittal at the close of the state's case. State v. Marshall, 571 S.W.2d 768, 773 (Mo.App.1978). See also, State v. Hill, 438 S.W.2d 244, 247 (Mo.1969); State v. Spraggins, 368 S.W.2d 407, 408 (Mo.1963); and State v. McDaniel, 392 S.W.2d 310, 314 (Mo.1965).

Appellant's contentions that the evidence was insufficient to prove that 1) he affirmatively participated in the offense of assault in the first degree, 2) acted with the purpose of aiding another in committing the offense, or 3) had the intent to commit the offense, are treated together and are ruled against him.

In State v. Nichelson, 546 S.W.2d 539, 543 (Mo.App.1977), the court held that affirmative participation may be shown by circumstantial evidence, and proof of any form of affirmative participation in the crime is sufficient to support a conviction. The court, in State v. Puckett, 611 S.W.2d 242, 245 (Mo.App.1980), stated that while the mere presence of an accused at the scene of a crime will not sustain a conviction, presence may be considered along with other incriminating evidence to determine if the total circumstances raise a reasonable inference that the accused was a participant in the offense charged. Presence, companionship and conduct before and after the offense are also circumstances from which one's participation in the crime may be inferred. State v. Nichelson, 546 S.W.2d 539, 543 (Mo.App.1977).

The fact that officer Romanus ordered Julian and Connor to stay at the front of the car while he searched the trunk demonstrates that he was taking charge and had a...