State v. Friend, s. 20088

• Decision Date: 19 December 1996
• Docket Number: Nos. 20088,20786,s. 20088
• Citation: 936 S.W.2d 824
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Charles FRIEND, Defendant-Appellant. Charles FRIEND, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 824

936 S.W.2d 824

STATE of Missouri, Plaintiff-Respondent, v. Charles FRIEND, Defendant-Appellant.

Charles FRIEND, Movant-Appellant, v. STATE of Missouri, Respondent.

Nos. 20088, 20786.

Missouri Court of Appeals,

Southern District,

Division One.

Dec. 19, 1996.

David Simpson, Asst. Public Defender, Columbia, for defendant-appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Cheryl A. Caponegro, Asst. Attorney General, Jefferson City, for plaintiff-respondent.

GARRISON, Judge.

A jury convicted Charles Friend (Appellant) of attempting to steal property worth over $150, and he was sentenced, as a prior and persistent offender, to five years' imprisonment. He appeals that conviction in Case No. 20088.

Appellant's motion for postconviction relief pursuant to Rule 29.15, ¹ which was later amended, was denied following an evidentiary hearing. His appeal from that denial, Case No. 20786, was consolidated with Case No. 20088. Appellant, however, raises no issue in his brief relating to the denial of his 29.15 motion. Accordingly, his appeal from that denial is deemed abandoned and Case No. 20786 is dismissed. See State v. Walls, 911 S.W.2d 645, 646 (Mo.App.S.D.1995).

Appellant's sole allegation of error in Case No. 20088 relates to the trial court's denial of his motions for judgment of acquittal. ² In that regard, he contends that the State presented insufficient evidence to support a conviction for the offense charged.

On January 31, 1994, Ava, Missouri police officer Al Baker was on patrol at approximately 6:00 A.M. when he pulled into the parking lot of the Trading Post Realty. It was then "dusky dark," and "just breaking day." He noticed a Ford pickup backed up to a utility trailer. Officer Baker did not recognize the truck, but he knew that the trailer belonged to B.J. Evans, the owner of the lot, and that it had been displayed for sale there for some time. According to Baker, the truck's lights and engine were off, and its doors were closed. He admitted that he never saw anyone back the truck up to the trailer.

At first Baker saw two people; Appellant was in the cab of the truck behind the steering wheel, and the other (Rodney Guerin) was standing by the rear of the truck. As Baker drove to the truck, he saw that it was hooked to the trailer, and that a third person (Delbert Loftis) was between the truck and the trailer, cranking the trailer's jack at a pace he described as "pretty good." Apparently, however, the trailer's hitch had not been released before Loftis began cranking the jack to lift the tongue of the trailer, because the truck's rear wheels were almost off the ground.

As Baker approached the truck in his patrol car, Guerin walked away. Baker asked Loftis if they had bought the trailer, to which Loftis replied, "No, I'm trying to cut loose from it." The officer then told Loftis of his oversight in not releasing the mechanism on the trailer hitch.

Baker then noticed Appellant move from behind the steering wheel of the truck to the center of the seat and start "fumbling" around the dash or reaching in the glove box like he was looking for something. At some point, Appellant got out of the truck through the driver's door, came to the rear of the truck using a crutch, and, according to Baker, said something to Loftis about needing "those boards or what happened to those boards."

Loftis let the trailer jack down, tripped the latch on the hitch, cranked the jack up, and unhooked the trailer from the truck. Baker then drove off, but as he did so he radioed for a registration check on the truck, and asked the dispatcher to contact Mr. Evans to see if he had authorized anyone to use the trailer. The response he received one and one-half to two minutes later indicated that the license checked to a GMC rather than a Ford truck, and that Evans had not given permission for anyone to use the trailer. Baker then looked back in the direction of the trailer and saw that the truck and men were gone. According to Officer Baker, he never received any information indicating that Appellant was the owner of the truck.

The State's evidence against Appellant was circumstantial. Our review to determine the sufficiency of circumstantial evidence to support a conviction, however, is based on the same standard as in cases involving direct evidence. State v. Grim, 854 S.W.2d 403, 405-408 (Mo. banc), cert. denied, 510 U.S. 997, 114 S.Ct. 562, 126 L.Ed.2d 462 (1993). In Grim, the Missouri Supreme Court held that the test described in State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989), was applicable. In Dulany, the court said:

On review, the Court accepts as true all of the evidence favorable to the state, including all favorable inferences drawn from the evidence, and disregards all evidence and inferences to the contrary. [Citation omitted.] In reviewing a challenge to the sufficiency of the evidence, appellate review is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt.

Id.

Appellant notes that, by an amended information, the State charged that he "drove a Ford pickup into the Trading Post parking lot and backed up to a trailer owned by B.J. Evans and began hooking said trailer to the said pickup, and such conduct was a substantial step toward the commission of the crime of stealing a trailer valued over $150...." ³ He argues that the State's evidence did not prove that he committed the acts alleged in the amended information. The apparent thrust of his argument seems to be that, by reason of the amended information, the State was required to prove that he personally committed the acts charged in order to convict him, i.e., that he acted as a principal.

The State, however, was entitled to prosecute Appellant for aiding criminal acts even if he did not personally commit all of the elements of the crime. § 562.041.1(2). An information may charge a defendant either as a principal or as an aider and encourager with the same legal effect. State v. Isa, 850 S.W.2d 876, 898 (Mo. banc 1993). The State may submit the case on the theory of accomplice liability despite charging the defendant as a principal. Id.

Accomplices are criminally liable if they affirmatively participate in the crime. State v. Nance, 880 S.W.2d 578, 580 (Mo.App.E.D.1994). Affirmative participation may be proved by circumstantial evidence, including presence at the scene of the crime, flight therefrom, and association with others involved before, during and after the commission of the crime. Id. Guilt under § 562.041.1(2) for aiding and abetting also encompasses acts of encouragement. State v. Richardson, 923 S.W.2d 301, 317 (Mo. banc 1996). "Encouragement," for this purpose, is the equivalent of conduct that by any means countenances or approves the criminal actions of another. Id. at 318.

We are unable to conclude that the trial court erred in denying Appellant's motion for judgment of acquittal made at the close of the State's case. At that point, the State still had the option of submitting the case against Appellant on the theory of his guilt as an accomplice pursuant to § 562.041.1(2). It had presented evidence that none of the three p...