State v. Crews, 40041

• Decision Date: 19 June 1979
• Docket Number: No. 40041,40041
• Citation: 585 S.W.2d 131
• Parties: STATE of Missouri, Respondent, v. Timothy CREWS, Appellant.
• Court: Missouri Court of Appeals

Page 131

585 S.W.2d 131

STATE of Missouri, Respondent, v. Timothy CREWS, Appellant.

No. 40041.

Missouri Court of Appeals, Eastern District, Division Three.

June 19, 1979.

Motion for Rehearing and/or Transfer to Supreme Court Denied

July 13, 1979.

Application to Transfer Denied Sept. 11, 1979.

Helton Reed, Jr., Sp. Asst. Public Defender, St. Louis, for appellant.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.

GUNN, Judge.

Defendant was charged by information with attempted first degree robbery, armed criminal action and three counts of assault with intent to kill with malice. He was convicted on the charges for robbery, armed criminal action and one assault count. His appeal attacks certain instructions and the trial court's refusal to grant his motion for judgment of acquittal. We affirm.

Defendant's appeal arises out of the attempted robbery of Bogart's Tavern in St. Louis. About 11:00 p. m. two armed men, one wearing a ski mask, entered the crowded tavern. The masked bandit walked toward the bar, placed his pistol against the head of one of the customers, off-duty police officer Robert Schaefer, and demanded money from the barmaid. The other would-be robber, armed with a shotgun, stood on a radiator next to the front door and reconnoitered the patrons. As he turned his head toward his assailant, Officer Schaefer noticed through a window that a third person dressed in dark clothing was pacing outside near the entrance. When the barmaid's response to his demand for money was not sufficiently swift, the masked robber fired a shot in her direction. The report prompted riposte from another off-duty policeman, Walter Serb, who ran from the rear of the tavern to investigate. Officer Serb was immediately shot and seriously wounded by the robber posted on the radiator. The robbers and the third person outside fled with Officer Schaefer in pursuit. In an exchange of gunfire, the masked robber was wounded, but all three in flight escaped. The two weapon-bearing robbers were later identified as Ervin Haas and William Owens.

The charges against defendant stem from his alleged participation as the lookout for the robbery. Evidence in support of defendant's involvement in the crime came from two of Bogart's customers who noted Ervin and Haas speaking with a third man outside of Bogart's immediately prior to entering the tavern in their aborted robbery attempt. Edward Coleman, a resident at Magdala Foundation, the halfway house where defendant and the two armed robbers also lived, testified for the State. He related that earlier in the evening of the Bogart's robbery effort he had been approached by the defendant, Haas, and Owens and had been asked to participate in the venture. Coleman declined the invitation, but another resident offered to supply guns to defendant, Haas and Owens if they would share their malgained lucre with him, and a bargain was struck. A gun was given to Haas, and defendant and Owens left with him by the back door fire escape. Upon his arrest by police on Coleman's information and after having been given the requisite Miranda warnings, defendant related to the police that he had accompanied Haas and Owens to Bogart's and remained outside during the course of the robbery attempt. However, he insisted that he had no gun, had not been involved in the shooting, nor had he hurt anyone. Defendant's version was that his statement had been coerced; the police said otherwise. The resolution of this conflict in evidence was a matter for jury resolution, State v. Shegog, 577 S.W.2d 185 (Mo.App.1979), and the conflict was resolved in favor of the State.

Defendant's first point of error asserts that Instruction No. 16 was misleading and was inconsistent with and contradicted by Instructions Nos. 15 and 17. The instructions read as follows:

INSTRUCTION NO. 15

(MAI-CR 2.10)

All persons are guilty who knowingly act together with the common purpose of committing an offense, or who, whether present or not, knowingly and intentionally aid or encourage another in committing it or attempting to commit it, and whatever one does in furtherance of the offense or an attempt to commit it is the act of each of them.

The presence of a person at or near the scene of an offense at the time it was attempted or committed is alone not sufficient to make him responsible therefore, although his presence may be considered together with all of the evidence in determining his guilt or innocence.

INSTRUCTION NO. 16

If two or more persons join in a purpose to commit a crime, each of them if present, is not only guilty of that crime if the other or others commit that particular crime, but he is also guilty of any other crime committed by the other or others in pursuance of the common purpose, or as a natural or probable consequence thereof.

INSTRUCTION NO. 17

(MAI-CR 3.20)

One of the issues under all counts is whether the defendant was present at the time and place the offense is alleged to have been committed. On that issue you are instructed as follows:

1. The state has the burden of proving beyond a reasonable doubt that the defendant was present at the time and place the offense is alleged to have been committed.

2. If the evidence in this case leaves in your mind a reasonable doubt regarding the defendant's presence at the time and place the offense is alleged to have been committed, then you must find the defendant not guilty under all counts.

Defendant submits that the evidence adduced at trial, when viewed in the light most favorable to the verdict, could only support the conclusion that, at most, he attended a planning session for the robbery. He argues that Instruction 16, through the operative language "join in a purpose" and "present," permitted the jury to find him responsible for the subsequent offenses committed by Haas and Owens solely on the basis of his presence at that planning session. Such a result is inconsistent with the strictures of Instruction 15, which he interprets as requiring an active participation in the robbery, and Instruction 17, which he interprets as requiring presence inside the tavern. Despite defendant's construction of the evidence, we believe that the testimony of the arresting officers concerning the defendant's admission that he stood outside of Bogart's Tavern during the attempted robbery provided a sufficient basis to submit the issue of presence at the scene of the crime to the jury. The ultimate test of accuracy for an instruction is whether it precisely follows substantive law and whether it will be correctly understood by a jury composed of average lay people. Arthur v. Royse, 574 S.W.2d 22 (Mo.App.1978); Kirkwood Medical Supply Co. v. Ann Patterson Enterprises, Inc., 511 S.W.2d 433 (Mo.App.1974). A fair reading of the three instructions leads us to the conclusion that they are neither " . . . confusing, misleading, inadequate nor prejudicially erroneous . . . ," Woodford v. Illinois Central Gulf R. Co., 518 S.W.2d 712, 716 (Mo.App.1974), and that they do accurately reflect the substantive law. Instruction 16, tendered by the court, is a non-MAI instruction based on State v. Minor, 556 S.W.2d 35 (Mo. banc 1977), and State v. Chernick, 278 S.W.2d 741 (Mo.1955). In Chernick, more closely analogous to this case, the defendant was convicted of assault with intent to kill with malice aforethought as the result of his participation in a bank robbery. No evidence was presented to show that Chernick was inside the bank or ever participated in the actual robbery. It was the State's contention, however, that he aided and abetted the robbers by acting as the getaway driver. Therefore, Chernick was convicted of assault, a crime committed as the natural or probable consequence of the bank robbery when a police officer confronted the escaping felons. Similarly, defendant Crews could be convicted of the assaults arising out of the attempted robbery at Bogart's if the jury found that: (1) defendant joined in the purpose to commit the robbery; (2) was present at the scene not necessarily in the tavern; and (3) the assaults arose " . . . in pursuance of the common purpose, or as a natural or probable consequence thereof." State v. Paxton, 453 S.W.2d 923 (Mo.1970); State v. Williams, 548 S.W.2d 227 (Mo.App.1977). We find no conflict with this instruction and Instruction 15, patterned after MAI-CR 2.10. ¹ MAI-CR 2.10 is the general accountability instruction designed to be used, as in this case, when there is evidence that the defendant

. . . was an active participant in the crime or its attempt, even if he was not the principal actor, or (b) that the defendant aided or encouraged other participants either before or during the crime or its attempt and was present or not . . . . Notes on Use, MAI-CR 2.10

This formulation plainly refers only to count I, attempted robbery, and count II, armed criminal action, but not to the additional crimes in pursuance or as the natural consequence of that goal: the assault charges. As stated in paragraph 6(b) of the Notes on Use for MAI-CR 2.10, the instruction was not intended to cover criminal responsibility of the defendant to crimes committed by joint participants not contemplated by the defendant. The defendant argues that the jury could have impermissibly reduced the requirement of Instruction 15 by Instruction 16 with regard to counts I and II. Emphasizing the phrase "knowingly act together" from Instruction 15, defendant submits that he played no active role in the robbery and, therefore, could not have "knowingly Acted together" with Haas and Owens. He concludes that only by applying the less stringent Instruction 16 language, "join in a purpose," could the jury have found him guilty. We disagree. To the contrary, we find the language of Instruction 15 far less restrictive than Instruction 16 since it requires neither presence nor active participation. Aid or encouragement in committing a crime...