State v. Logan

• Decision Date: 16 November 1982
• Docket Number: No. WD,WD
• Citation: 645 S.W.2d 60
• Parties: STATE of Missouri, Respondent, v. Squire LOGAN, III, Appellant. 31719.
• Court: Missouri Court of Appeals

Page 60

645 S.W.2d 60

STATE of Missouri, Respondent, v. Squire LOGAN, III, Appellant.

No. WD 31719.

Missouri Court of Appeals Western District.

Nov. 16, 1982.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied Jan. 4, 1983.

Application to Transfer Denied

Feb. 23, 1983.

James W. Fletcher, Gary L. Gardner, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before NUGENT, P.J., and TURNAGE and LOWENSTEIN, JJ.

LOWENSTEIN, Judge.

Squire Logan was convicted of two counts of second degree robbery, § 569.030, RSMo 1978 ¹ and sentenced to fifteen years on each count for a total of thirty years. He charges error to the aider liability instructions (MAI-CR2d 2.10 and 2.12); the correctness of the trial court's "Judgment/Sentence" order; and the admissibility of a weapon not used in the robberies but related to those crimes.

Affirmed.

Defendant does not question the sufficiency of the evidence to support his convictions, however, the specific facts of the crimes must be stated in order to clarify the role each participant played in the activities surrounding the robberies. On January 7, 1979, Vicki Hill, Michael Mitchell, Donald Mitchell and defendant met and planned the robbery of a Vickers service station near the intersection of 87th Street and I-435 in Kansas City, Missouri. Defendant then drove the group in his van to pick up Lonnie Frazier, who was solicited to join in the robbery.

Both Hill and defendant were employees of the Vickers Company at the time of the robbery; Hill had previously worked at the 87th Street station and defendant was an assistant manager of another Vickers. Hill knew the attendant on duty the evening in question and she and defendant explained to the others where they could find the keys to the cash register and safe. Aware that Hill and defendant would be recognized by the service station attendant, the parties agreed that those two would remain behind in defendant's van. Because defendant's van was also recognizable to the attendant, the group drove around the area for more than one-half hour searching for an automobile to steal to use in the robbery. When they found that endeavor unsuccessful, the five decided that the Mitchell brothers and Frazier should go on foot to the station, complain they were out of gas and then rob the attendant. If possible, the plan then called for the three men to steal the attendant's car and meet with Hill and defendant later on the I-435 access ramp.

The Mitchells and Frazier proceeded to the Vickers station armed with a .38 caliber handgun and a gas pistol. The parties had discussed taking along a sawed-off shotgun, and although defendant urged that this weapon be used in the robbery, it was decided to leave it in the van. When the three reached the station they noticed the attendant's car was snow covered and, according to Michael Mitchell, "didn't look like it was running." The three then held up the attendant at gunpoint and stole some $2,400 from the cash register and safe at the station. While the robbery was in progress, a customer, Francis Eimer, drove into the Vickers lot. Donald Mitchell and Frazier forced Eimer, at gunpoint, to relinquish his automobile, and the three men made their escape in this vehicle. Shortly thereafter, the three met with defendant and Hill on the I-435 overpass, abandoned Eimer's vehicle, drove to defendant's house and divided the money.

I.

Defendant does not contest his liability for the robbery of the Vickers station (Count I). He contests only his liability for the automobile robbery, contending that §§ 562.036 and 562.041, of the 1979 Criminal Code do not authorize a defendant to be convicted of an offense committed by other persons when he did not initially contemplate that offense.

The state submitted both robberies using instructions patterned after MAI-CR2d 2.12, (verdict directors) and MAI-CR2d 2.10 (general accountability for aiders). Instruction No. 6, was a modification of MAI-CR2d 2.10, and read:

A person is guilty of an offense if it was committed by conduct for which he is criminally responsible, whether that conduct was his own or that of other persons or both his own conduct and that of others.

A person is criminally responsible for the conduct of others in committing a particular offense when, either before or during the commission of an offense, with the purpose of promoting the commission of that offense he aids such other persons in planning that offense.

A person is also criminally responsible for any other offense which he knew that such other persons were practically certain to commit in the course and furtherance of the particular offense initially contemplated.

The verdict directors were modifications of MAI-CR2d 2.12. Instruction No. 7 submitted Count I, the service station robbery:

As to Count I, if you find and believe from the evidence beyond a reasonable doubt:

First, that on January 8, 1979, Michael Mitchell, Donald Mitchell and Lonnie Frazier committed the offense of robbery in the second degree of the Vicker's Gas Station located on East 87th Street, Kansas City, Jackson County, Missouri, and

Second, that the defendant, either before or during the commission of the offense of robbery in the second degree with the purpose of promoting its commission, aided such other persons in planning that offense, and

Third, that on January 7, 1979 in the County of Jackson, State of Missouri, Michael Mitchell, Donald Mitchell and Lonnie Frazier stole approximately $2,000 in the charge of Glen Gerred, and

Fourth, that Michael Mitchell, Donald Mitchell and Lonnie Frazier in doing so threatened the immediate use of physical force on or against Glen Gerred for the purpose of forcing Glen Gerred to deliver up the property.

then you will find the defendant guilty under Count I of robbery in the second degree. [Tail omitted.]

Instruction No. 9 submitted Count II, the automobile robbery. The first two paragraphs of this instruction were the same as Instruction No. 7, after which it stated:

Third, that on January 7, 1979, in the County of Jackson, State of Missouri, Michael Mitchell, Donald Mitchell and Lonnie Frazier stole a 1970 Chrysler Newport owned by Francis Eimer, and

Fourth, that Michael Mit[ch]ell, Donald Mitchell and Lonnie Frazier in doing so threatened the immediate use of physical force on or against Francis Eimer for the purpose of forcing Francis Eimer to deliver up the property, and

Fifth, that such offense was committed by such other persons in the course and furtherance of the offense of robbery in the second degree of the Vicker's Gas Station on East 87th Street, Kansas City, Jackson County, Missouri, and

Sixth, that the defendant knew such other persons were practically certain to commit such additional offense then you will find the defendant guilty under Count II of robbery in the second degree. [Tail omitted].

MAI-CR2d 2.12 "must be given, whether requested or not, when there is any evidence that the defendant acted with others, either as an active participant or one who aided, agreed to aid or attempted to aid another in planning, committing or attempting to commit an offense." MAI-CR2d 2.10, Notes on Use 3. MAI-CR 2.12, Notes on Use 5 provides: "If MAI-CR 2.12 is used, the court must give a separate instruction defining the offense initially contemplated ...." (See Instruction No. 7). Notes on Use 6 to this same MAI-CR provides: "The Third, Fourth and Fifth paragraphs must all be included if the defendant is being charged with an offense committed by another person but other than the original offense contemplated by defendant that he and the other person would commit." (See paragraphs four through six in Instruction No. 9). Thus, the trial court correctly followed the MAI-CR2d Notes on Use in submitting Instructions No.'s 6, 7, and 9 as offered by the state. ²

There has not been occasion for a Missouri court to consider the provisions of the 1979 Criminal Code nor the applicable MAI-CR2d as regards a crime not initially contemplated by the defendant. (The crimes here were committed seven days after the effective date of the code.) In a word, defendant claims that under the new code, no instructions should have been proffered on the secondary robbery, i.e., that the last paragraph of Instruction No. 6 (MAI-CR2d 2.10) and paragraphs four through six of Instruction No. 9 (MAI-CR2d 2.12) were erroneously submitted. These instructions address the liability of an accomplice for an offense not initially contemplated, even though the new code does not specifically address that same issue. The question for this court is whether those instructions on a crime not initially contemplated, based on MAI-CR2d, are cognizable under §§ 562.016, 562.036 and 562.041 of the new code. ³

Section 562.016 provides in part:

1. Except as provided in section 562.026, a person is not guilty of an offense unless he acts with a culpable mental state, that is, unless he acts purposely or knowingly or recklessly or with criminal negligence, as the statute defining the offense may require with respect to the conduct .... [Emphasis added.]

Section 562.036 provides:

A person with the required culpable mental state is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is criminally responsible, or both. [Emphasis added.]

Section 562.041 provides:

1. A person is criminally responsible for the conduct of another when

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(2) Either 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. [Emphasis added.]

Sections 562.036 and 562.041 combine to require the trier of fact to make two separate findings before an accomplice may be held liable for...