State v. Gonzalez-Gongora, GONZALEZ-GONGOR

• Decision Date: 29 June 1984
• Docket Number: GONZALEZ-GONGOR,No. 13297,A,13297
• Citation: 673 S.W.2d 811
• Parties: STATE of Missouri, Respondent, v. Rubenppellant.
• Court: Missouri Court of Appeals

Page 811

673 S.W.2d 811

STATE of Missouri, Respondent, v. Ruben GONZALEZ-GONGORA, Appellant.

No. 13297.

Missouri Court of Appeals,

Southern District,

Division One.

June 29, 1984.

Donald R. Duncan, Springfield, for appellant.

John Ashcroft, Atty. Gen., Janet E. Papageorge and John M. Morris, Asst. Attys. Gen., Jefferson City, for respondent.

FLANIGAN, Presiding Judge.

A jury found defendant guilty of robbery in the first degree, § 569.020, ¹ and he was sentenced to 12 years' imprisonment. Defendant appeals.

Defendant's first point is that the evidence was insufficient to support the verdict. In ruling this point this court must view the evidence in the light most favorable to the state and accept all substantial evidence and all legitimate inferences fairly deducible therefrom which support the verdict. All evidence unfavorable to the state must be disregarded and the submissibility of the case will be determined upon the basis of all the evidence, including those portions of defendant's evidence which favor the state. State v. Stith, 660 S.W.2d 419, 420-421 (Mo.App.1983).

On Monday, April 26, 1982, at 1:30 a.m., Christopher Royal, a store clerk employed at a Git'N'Go store located at 2963 East Division in Springfield, was held up at gunpoint and $130 was taken from his cash register by the gunman, a black man whose name is not disclosed in the record and who will be referred to as "R." Defendant was present at the time R committed the robbery and the decisive issue is whether or not the state proved that the defendant was criminally responsible, as an aider, for R's conduct.

"A person is criminally responsible for the conduct of another when ... (2) [e]ither 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." § 562.041.1.

One who, before or during the commission of a crime, intentionally and knowingly aids or encourages the commission thereof is guilty of that offense. Aiders and abettors, who act with common purpose with active participants in the crime, incur criminal liability by any form of affirmative advancement of the enterprise. The evidence need not show that defendant personally committed every element of the crime. Among other things, indicia of aiding and abetting are presence at the scene of the crime, flight therefrom and association with others involved before, during and after commission of the crime. Proof of any form of participation by defendant in the crime is enough to support a conviction and his presence at the scene, his companionship and conduct before and after the offense, are circumstances from which one's participation in the crime may be inferred. ²

However, the mere presence of the accused at the scene of the crime, coupled with an opportunity on his part to have committed it, will not suffice to support a conviction. State v. Allen, 420 S.W.2d 330, 333 (Mo.1967). Also insufficient is the combination of presence at the scene and flight therefrom. State v. Castaldi, 386 S.W.2d 392, 395 (Mo.1965); State v. Minor, 531 S.W.2d 101, 102 (Mo.App.1975).

Defendant is a Cuban who, at time of trial, had been in this country approximately three years and was 31 years old. During the course of the robbery, R, in reaching into the cash register drawer, activated a surveillance camera. As a result, 19 photographs, covering a span of 19 seconds, were obtained during the commission of the robbery. Defendant, who was admittedly present, is shown in several of those photographs and so are clerk Royal and R. No other person was present during the happenings at the store.

After the robbery was reported to the police, and the surveillance films were developed, Richard Phillips, a Springfield police officer, recognized R and defendant as being the two men whom he saw at 5:30 p.m. on Sunday, April 25, approximately seven hours prior to the robbery, while the officer was on routine patrol at the intersection of Campbell and Walnut in Springfield. That intersection is several miles from the scene of the robbery. Officer Phillips testified that he had not seen the two men before, that they were standing on the west side of Campbell waiting to cross the street, and that he noticed them because it was odd that "an Indian or Mexican or whatever was with a black man." Phillips testified that R and the defendant were conversing but the witness did not hear what was said.

Store clerk Royal, the state's principal witness, testified that at 1:30 a.m. on April 26 R and the defendant entered the store. As the two men came through the front door they were walking "side by side." The two men walked over behind an ice machine and stopped there, a foot or two apart. They were standing together and Royal could see their heads and shoulders. They were three or four feet from the counter. R had his back to Royal. As Royal came around to "greet the two men" defendant, holding a $20 bill, walked toward the counter and placed his hand on the counter. R still had his back to Royal and Royal "could see R's elbow sticking out like this--at a ninety degree angle." Royal asked defendant if he could help him and defendant said something which Royal did not understand. Defendant spoke again and on the third time Royal figured out that defendant wanted Salem cigarettes. During this time R was still in the same position with his back to Royal.

The cash register had a "pre-set key for cigarettes" and Royal "just punched the key" because defendant "had already displayed the money he was going to pay with." Royal "immediately tendered in $20 and hit the amount tendered." This opened the cash register drawer. Royal said, "You can punch the stuff up on the cash register and get the cigarettes and feed it all in one motion" because the cigarettes were on a shelf close to and behind the cash register. Royal said that by the time the drawer was coming out "I had already got the Salem cigarettes" and dropped them in the middle of the counter. "It's an automatic response." One to three seconds elapsed from "my hitting the key, grabbing the cigarettes and putting them on the counter." "If I had not seen the $20 bill, the cash drawer would have been closed."

Royal said, "When I turned around to put the cigarettes on the counter and make change I observed a weapon sticking in my face--a hand gun." The gun was held by R.

Significantly Royal testified that when he first turned to his left, to get the Salem cigarettes, defendant was standing at the counter. When Royal turned back, one to three seconds later, R was standing at the counter and the defendant had moved back a couple of feet.

Questioned by the prosecutor, Royal gave the following testimony:

Q. Now at the time that you turned to your left, who was standing at the counter?

A. O.K. The defendant.

Q. As you turned to get the cigarettes and turned back, which as I understand your testimony, was one to three seconds--

A. --Uh-huh.

Q. --who was then standing at the counter?

A. The black man.

Q. Now did you have occasion to see where the defendant was at that point in time when you turned back?

A. O.K. The defendant had moved back a couple of feet.

Q. Now after you turned back and saw the black man with the gun pointed at you, what, if anything, did you then do?

A. Well, my first reaction was to stare at the barrel. And when I realized that it was a real gun, I slowly brought my hands up and looked straight ahead.

....

Q. So as I understand your testimony, after you turned and obtained the Salem cigarettes and returned them to the counter,--

A. --Uh-huh.

Q. --the order of persons would have been you, the black man and then the defendant behind the black man?

A. Yeah. Uh-huh.

Royal further testified that R "just grabbed across with his left hand and started taking the bills out of the drawer." That activated the surveillance camera and set off an alarm "which is hooked up with Tulsa and they call our police department."

At no time did R point the gun at defendant. The gun was always pointed at Royal. The surveillance photographs show that while R was threatening Royal with the gun and ransacking the cash drawer, the defendant was walking around and moving his arms with apparent casualness. During the 19 seconds shown by the photographs, the defendant walked over to the front door and opened it, a movement of perhaps 10 feet.

After the photographing ended R told Royal to put the coins, part of the $130 taken, into a sack. A phone was near the cash register and R leaned over the counter, "grabbed the whole assembly, the phone, ripped it off and threw it behind him. During this time the defendant was just walking around, just meandering around." R then instructed Royal to get down on the "ground" and Royal did so. R asked Royal for a couple of packs of Kool regulars and Royal by mistake grabbed a pack of Kool lights and threw them to R. R told Royal he had thrown the wrong kind so Royal found two packs of Kool regulars and gave them to R and he lay back down.

About two minutes elapsed between the time defendant and R entered the store and the time "they left." Royal said that after he gave R the Kool regulars "I laid back on the ground and there was silence. After a few minutes, after I gained my composure, I crawled around and locked the front door. At that time both defendant and R were gone." So were the Salem cigarettes.

Defendant's testimony was that immediately prior to entering the store he had spent several hours at a nearby bar. The state introduced evidence that there were only two bars in the general vicinity and that both of them were closed on Sunday. Defendant denied that he had ever seen R before the occurrences at the store.

Defendant and R were together earlier in the evening at a point several miles from the robbery scene. At that time they were conversing. They...