State v. Gonzales

• Decision Date: 05 February 1976
• Docket Number: No. 9903,9903
• Citation: 533 S.W.2d 268
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Joseph E. GONZALES, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 268

533 S.W.2d 268

STATE of Missouri, Plaintiff-Respondent, v. Joseph E. GONZALES, Defendant-Appellant.

No. 9903.

Missouri Court of Appeals, Springfield District.

Feb. 5, 1976.

John C. Danforth, Atty. Gen., K. Preston Dean, II, Sheila K. Hyatt, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.

Wayne C. Smith, Jr., Springfield, for defendant-appellant.

Before BILLINGS, C.J., and TITUS and FLANIGAN, JJ.

TITUS, Judge.

Defendant and his brother, Benny Gonzales, were jointly charged with the November 1, 1973, first degree robbery of a service station attendant in Springfield. § 560.120. ¹ Defendant was separately tried (Rule 25.07), jury-convicted on circumstantial evidence, and sentenced to imprisonment for 15 years. § 560.135.

In substance, defendant's first point challenges the sufficiency of the evidence to support the conviction. We are reminded that in circumstantial evidence cases, the test for determining the sufficiency of the evidence to sustain a conviction is more stringent than in cases where direct evidence is adduced. Nonetheless, upon review after conviction in such a case, we must accept as true the state's evidence, together with all reasonable inferences deducible therefrom, and disregard all contrary evidence and inferences. State v. Stapleton, 518 S.W.2d 292, 296(1) (Mo. banc 1975). We proceed, therefore, to recast the evidence in light of the foregoing admonitions.

Defendant, according to the record, was older and taller than Benny. Both were described as Mexican-Americans.

Some three months before the robbery, Policeman Dan Wilson loaned his loaded chrome or nickel-plated pearl-handled revolver (State's Exhibit 1) and black leather holster (State's Exhibit 1--A) to his brother John Wilson. The gun was variously described as being a '.38 caliber special' or a '.357 magnum combat masterpiece.' The borrower's 15 or 16-year-old son, John, Jr., had shown the revolver to defendant, Benny and Pat Boggs prior to the robbery. Early on the day of the robbery, defendant, Benny and Pat went to the John Wilson home where defendant said something 'about finding a pistol.' Subsequent to the trio's empty-handed return to a girl friend's home, defendant departed alone and soon returned displaying to Pat and Benny a gun in a holster which was stuck in the waistband of his trousers beneath his shirttail. Pat was adamant that Exhibit 1--A was the same holster shown to him by defendant; he said the displayed gun 'looks like . . . it's the same kind of revolver, the same looks' as Exhibit 1.

Charley Day, a numismatist of sorts, owned and operated the service station in question, and employed Floyd Tindle as the afternoon and evening attendant. Because 'they are rare now,' Charley had saved three $1 silver certificates. He had also collected ten $1 bills signed by Secretary of the Treasury 'Joseph E. Barr' because Mr. Barr had served in that capacity 'for only 30 days, in 1963.' ² The collected bills were kept under a glass covering Charley's desk at the service station.

As Tindle was preparing to close the station near 7 p.m. on the day of the robbery, he approached two male Mexican-Americans who were afoot outside the station building and 'asked them what they wanted.' He described the males: 'One was short and one was tall'; neither wore masks or anything to conceal his appearance. In response to Tindle's inquiry, the short male produced a 'large caliber . . . chrome plated' gun with 'pearl handles on it' and said, '(W)e want your money.' Tindle testified 'it was a gun like' Exhibit 1 and that the exhibit 'looks like the gun,' although there was no way he could 'be absolutely positive (Exhibit 1) is the gun' that was used in the robbery. Inside the station building the short male with the gun stood alongside Tindle while he extracted 'bills and change' from the cash register. The taller robber stood 'on the other side of the showcase,' about 12 feet from Tindle, and demanded the register be lifted 'so he'd be sure there was nothing under there.' After Tindle complied, the three went into the office where Tindle, as directed, infted the desk glass and removed the Barr and silver certificates. The money taken from the register and off the desk was given to the short robber. Before the two robbers departed, Tindle was instructed to lie on the office floor. He complied until 'I heard (footsteps) go ground the corner of the building (and then) I got up and called Mr. Day.' The police also were notified. Following a check of the premises, Mr. Day allowed he 'was approximately $80.00 short.'

Tindle at no time identified defendant or Benny as being one or both of the robbers. No witness appeared at trial who claimed to have seen defendant or Benny at, near or in the service station at the time of the robbery or at any other time.

Shortly after the robbery, Springfield police officers were notified via radio of the event. It is not known whether the information was contained in the initial report or subsequent broadcasts, but the officers were advised to be on the alert for the 'Gonzales brothers . . . two Mexican subjects . . . one taller than the other (probably in) a Dodge 330 series (automobile with) license number, XT9946.' One of the officers ascertained the vehicle was owned by a Mary Estes, who had loaned it to defendant and Benny 'for approximately an hour.' No one testified the described automobile had been seen at or near the service station at the time of the robbery or at any other time; the jury was not advised how the police came by the information which was broadcast or why the police considered defendant and Benny to be implicated in the matter. In any event, police officers stopped the vehicle at 8:55 p.m. (about an hour and 55 minutes after the robbery) and arrested defendant (the driver) and Benny (the lone passenger). When searched, Benny had $51 in bills in his left pocket and $4.52 in change in his right pocket. The bills included 3 silver and 7 Barr certificates. Defendant had on his person 7 cents which was not identified as having been taken in the robbery. After finding nothing of importance inside the car, one of the officers asked defendant and Benny 'if there was any reason I couldn't look in the trunk.' Upon being told 'they didn't care because the car didn't belong to them,' the trunk was opened. Inside reposed a 'fully loaded' revolver (Exhibit 1) inside a black leather holster (Exhibit 1--A).

Pat Boggs and John Wilson, Jr., testified that during the two or three weeks they had known defendant and Benny prior to the robbery, they had not seen either of the Gonzales brothers in the company of any other Mexican-Americans. Whether the Dodge automobile had been loaned to defendant and Benny before or after the robbery was not revealed. Defendant offered no evidence.

It is well established that when a conviction is dependent upon circumstantial evidence and evidence of a defendant's agency in connection with the crime charges is entirely circumstantial, the facts and circumstances relied on by the state must not only be consistent with each other and with the hypothesis of defendant's guilt, but must also be inconsistent and irreconcilable with his innocence, and must point so clearly and satisfactorily to his guilt as to exclude every reasonable hypothesis of innocence. Mere suspicion of guilt, however great, is not sufficient to authorize a conviction of a crime. State v. Schleicher, 438 S.W.2d 258, 260--261(2, 3) (Mo.1969); State v. Potter, 530 S.W.2d 268, 270(3) (Mo.App.1975). And while the rule is that several inferences properly may be drawn from the same proven facts if each inference is supported thereby (State v. Feger, 340 S.W.2d 716, 722(4) (Mo.1960)), an inference may not properly arise which is 'dependent for establishment of one fact upon inference to be drawn from some other fact shown only by inference.' State v. Ring, 346 Mo. 290, 304, 141 S.W.2d 57, 64--65(16) (banc 1940).

Inherent in defendant's challenge to the evidence to support the conviction is his claim that the evidence was 'not sufficient to establish possession by defendant of recently stolen property so as to permit an inference that defendant committed a robbery.' This invites inspection of the curial saw that possession by defendant of property involved in offenses for which the wrongful taking thereof is an essential element, is a circumstance from which the jury may infer that defendant was the person who committed the crime charged, whether that crime be robbery or burglary (State v. Lee, 491 S.W.2d 317, 320(3) (Mo. banc 1973)) or stealing (State v. McClanahan, 419 S.W.2d 20, 21(1) (Mo.1967)), provided that defendant's possession thereof is not too remote in point from the time of the crime and that defendant's possession is personal, exclusive, distinct, conscious and unexplained. State v. Freeman, 489 S.W.2d 749, 752(4) (Mo.App.1973). As often said, the term 'exclusive' used in describing possession under the foregoing provision does not mean that possession must be separate and apart from all others, because joint possession may give rise to the same inference. State v. Webb,432 S.W.2d 218, 222(6) (Mo.1968); State v. Ransom, 500 S.W.2d 585, 588(4) (Mo.App.1973). Yet, if the possession relied on to convict the defendant is joint with another, there must, at least, be some other evidence more than mere possession connecting the defendant with the offense. State v. Farmer, 490 S.W.2d 72, 74 (Mo.1973); State v. Webb, 382 S.W.2d 601, 604(4) (Mo.1964); State v. Mesmer, 501 S.W.2d 192, 195(3) (Mo.App.1973); 12 C.J.S. Burglary § 59 b., at p. 738.

'It is the 'possession' of recently stolen property that permits the jury to infer that the person in possession stole such property. Unless the 'possession' is established, the inference of guilt of the robbery is not permissible.' State v. Lee, supra, 491 S.W.2d at 321.

The question of 'exclusive' possession vel non presented in...