State v. Evans, 49004
| Decision Date | 25 June 1985 |
| Docket Number | No. 49004,49004 |
| Citation | 694 S.W.2d 860 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Carl EVANS, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
David C. Hemingway, Asst. Public Defender, St. Louis, for defendant-appellant.
Thomas Chad Farris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Appellant appeals a jury conviction for robbery and assault. He was sentenced to serve concurrent 10 year sentences. He raises two points on appeal: (1) that there was insufficient evidence to prove that he had the necessary criminal intent for the conviction of assault, § 565.050, RSMo.Supp.1984, and robbery, § 569.020, RSMo.1978, when he was not involved in the actual assault or robbery; and (2) that it was error to use the phrase "natural and probable consequence" in the verdict director for assault as that language is not sanctioned by the MAI instruction or the Notes on Use.
The testimony given at trial indicated the following:
On August 19, 1983, appellant was driving around, saw Byron Jones and Lavel Nylon and picked them up. He had known Jones for a couple of months and Nylon for several days. Jones and Nylon discussed snatching a purse as a way to make money. They sighted a young couple walking down the street and directed appellant to drop them off so that they could go snatch the purse and to wait until they returned. The defendant complied with the request. Nylon and Jones approached the couple and attempted to snatch the purse. The woman resisted and her companion turned to see the incident. The woman's companion attempted to prevent the snatching and Jones shot him. Nylon and Jones then fled but were apprehended by the police. After hearing the gun shot defendant drove away from the area. He returned later and saw police officers talking to Nylon and Jones. As he drove by Jones called out to him. The police officers then stopped him and asked him if he knew Nylon and Jones and he said he did not. Defendant left the area. He was arrested in Carthage, Missouri one month later in connection with this incident. Defendant was charged with assault and robbery for acting with others in taking the purse and shooting the man.
On appeal we review the evidence in the light most favorable to the state disregarding all evidence and inferences to the contrary. State v. Williams, 652 S.W.2d 226, 227 (Mo.App.1983). The evidence clearly indicates that the actual assault and robbery were committed by Nylon and Jones. In order to find defendant guilty of these charges, the state must show that he had the culpable mental state for the offenses and was criminally responsible for the acts of the other two men. State v. Logan, 645 S.W.2d 60, 64 (Mo.App.1982). Assuming that defendant had the culpable mental state for the crime of purse snatching (as shown by the active participation in snatching i.e. providing the get away car 1) did he also have the culpable mental state for the robbery? Finding that he did, we affirm the robbery conviction.
Culpable mental state may be inferred from the circumstances. State v. Turner, 623 S.W.2d 4 (Mo. banc 1981), cert. denied, 456 U.S. 931, 102 S.Ct. 1982, 72 L.Ed.2d 448 (1982). An individual who promotes one crime and knows that other crimes may occur has the culpable mental state for the other crimes. State v. Logan, 645 S.W.2d at 65-66.
Section 569.020 RSMo 1978, defines robbery first degree as the forcible stealing of property accompanied by serious physical injury to any person or the use of a deadly weapon or dangerous instrument. Serious physical injury can be caused by the use of a weapon or by mere physical force. Defendant argues that he does not have the culpable mental state for the robbery because he did not know that Jones had a weapon. We note first that it is the serious physical injury or a weapon that makes the purse snatching a robbery. The fact that serious physical injury is possible when an individual resists a purse snatching indicates that defendant could have reasonably anticipated that an injury would be a part of the purse snatching.
The court in State v. Logan, 645 S.W.2d 60 (Mo.App.1982) said: 645 S.W.2d at 64. However the court also said: 645 S.W.2d at 65-66.
Defendant may not have planned the robbery but he must have known that a serious physical injury could be inflicted on the victim of a purse snatching. In addition, the state proved that defendant knew that Byron Jones owned a gun since defendant had recently tried to purchase one from him. The state made a submissible case on the issue of culpable mental state for the robbery.
Defendant's second point on appeal concerns the jury instruction in the assault charge involving the companion of the owner of the purse. The instruction was patterned after MAI 2.12 but deviated from it because that instruction does not apply when the charged crimes are not the same as the crimes initially contemplated by defendant. The instruction read:
A person is responsible for his own conduct and he is responsible for the conduct of other persons in committing an offense if he acts with them for the purpose of committing that offense [or any other offense committed by the other persons in pursuance of the common purpose or as a natural and probable consequence thereof,] or if, for the purpose of committing that offense [or any other offense committed by the other persons in pursuance of the common purpose or as a natural and probable consequence thereof, ] he aids or encourages the other persons in committing it.
As to Count II, if you find and believe from the evidence beyond a reasonable doubt:
First, that on August 19, 1983, in the City St. Louis, Byron Jones attempted to kill or cause serious physical injury to Joseph Crawford by shooting him,
then you are instructed that the offense of assault in the first degree had occurred, and if you further find and believe from the evidence beyond a reasonable doubt:
Second, that with the purpose of promoting of [sic] furthering the commission of robbery in the first degree, the defendant acted together with or aided Byron Jones and Lavelle Nylon in committing that offense, [and the offense of assault in the first degree submitted to you in the foregoing paragraph was committed in the pursuance of the common purpose of robbery in the first degree as a natural and probable consequence thereof,] 2
then you will find the defendant guilty under Count II of assault in the first degree.
However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the propositions submitted in this instruction, you must find the defendant not guilty of that offense.
If you do find the defendant guilty under Count II of assault in the first degree, you...
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