State v. Mower

• Decision Date: 08 April 1974
• Citation: 317 A.2d 807
• Court: Maine Supreme Court
• Parties: STATE of Maine v. Robert MOWER.

Page 807

317 A.2d 807

STATE of Maine v. Robert MOWER.

Supreme Judicial Court of Maine.

April 8, 1974.

John H. Fallon, County Atty., Belfast, George Bowden, Student, for plaintiff.

Daviau, Geller & Daviau by Robert J. Daviau, Waterville, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ.

DELAHANTY, Justice.

The Appellant, Robert Mower, was indicted for assault with intent to rob one Dr. Harrison Aldrich, and was tried jointly with two other defendants, Halle and Clapperton, who were indicted for assault and battery of a high and aggravated nature. The trial was held before a single Justice of the Superir Court (Waldo County).

At the trial, defendants Halle and Clapperton pled guilty to assault and left the determination of aggravation to the trial Justice. Appellant Mower pled not guilty. Halle was found guilty of simple assault; Clapperton was found guilty of high and aggravated assault; Mower was found guilty of simple assault and sentenced to the county jail for a term of six months, the last three months suspended for two years. It is from this judgment that the Defendant now appeals.

The presiding Justice could reasonably find from the evidence that on the afternoon of September 20, 1972 in Waterville, Mower met a long time acquaintance named Kenneth Whitten. Mower asked Whitten if the would give him and his companion a ride to Unity and Whitten agreed. This group met James Clapperton, and Mower told Clapperton that they had arrived to, unity. Chapperton then got in the car, and they all went to an apartment on Gove Street where Mower and Clapperton went inside to pick up some liquor, which they drank after returning to the car. Before leaving Waterville for Unity, Whitten was asked to pick up Gregory Halle, who had spoken to Mower earlier in the day about going to Unity. Halle was picked up, and the group then proceeded to Unity. Mower claimed that the purpose of the trip was to get a prescription for drugs from Dr. Aldrich for a stomach ailment from which Mower was suffering.

When the group arrived in Unity, they went to the office of Dr. Harrison Aldrich. Whitten remained in the car, and the other four occupants of the automobile entered the office.

Upon entering Mower asked the receptionist, Jean Ross, if the doctor was in. Mrs. Ross told him that the doctor was not in and inquired as to the reason for the visit. Mower told her of his stomach pain, and she suggested that he see a doctor in China who was holding office hours. Halle then requested to use the bathroom and went to the back of the office. Mower accompanied him. Upon hearing Dr. Aldrich approach the office through the back entrance from the garage, Mrs. Ross opened the door for him and silently motioned the doctor to his back office.

Mrs. Ross returned to the reception area and then went to the bathroom door to order the two men out. She ordered the two other men out of the office as well. At this point, a knife was directed at Mrs. Ross by one of the men and placed against her stomach. Another man grabbed her shoulder from behind. Mrs. Ross, and later Dr. Aldrich, identified the Appellant, Mower, as the person with the knife. Defendant Clapperton, however, admitted to being the individual who brandished the knife. The trial Justice accepted this version of the story and found that Clapperton was, in fact, the only person holding and using a knife during the events in Dr. Aldrich's office.

When confronted by the knife, Mrs. Ross yelled. Dr. Aldrich rushed out and was warned by Mrs. Ross that her assailants had a knife. She then ran out to the phone in the back office and called the State Police, leaving Dr. Aldrich with the men.

Dr. Aldrich testified that when he entered the office all the men were around Mrs. Ross, and the knife-wielder was holding her up against the wall with the knife to her abdomen. Clapperton turned around and pointed the knife at Dr. Aldrich, who quickly lifted up the arm of the individual holding the knife and told him to leave. Two of the men in the office then assisted in escorting Clapperton out of the building.

Following the jury-waived trial, the presiding Justice concluded that the evidence did not support that portion of the indictment alleging 'intent to rob.' The Court did find Mower guilty of the lesser included offense of simple assault. In reaching this conclusion the Justice stated:

(T)he fact that the doctor came in, and was himself, in the presence of this knife, and in the presence of that inflammable situation, indicates an element of assault, which unquestionably involves all that was before him, or before this Court.

The Appellant's sole argument on appeal is that the decision entered at his trial is completely unsupported by the evidence. ¹

At the close of the State's case, the Defendant moved for a judgment of acquittal, which was denied as it related to the offense of an assault upon the doctor. He filed no motion for acquittal, however, at the close of all the evidence (M.R.Crim.P., Rule 29(a)) or within 10 days after the verdict of guilty (M.R.Crim.P., Rule 29(b) and filed no motion for a new trial within 10 days after the verdict (M.R.Crim.P., Rule 33).

This Court has pointed out that a motion for acquittal made prior to the close of all the evidence does not present for review the sufficiency of all the evidence to support a verdict of guilty. State v. Sawyer, Me., 314 A.2d 830 (1974); State v. Cedre, Me., 314 A.2d 790 (1974); State v. Rowe, Me., 238 A.2d 217 (1968). The foundation for appellate relief not having been laid at the trial level, the sufficiency of the evidence to support the verdict is not properly before us. State v. Sawyer, supra; State v. Cedre, supra; State v. Gamage, Me., 301 A.2d 347, 348 (1973); State v. Pullen, Me., 266 A.2d 222, 229 (1970).

We review the record for obvious error, which, if present, would entitle the Defendant to a new trial in spite of his not having presented the issue before the trial court. M.R.Crim.P., Rule 52(b). Upon such review we find no obvious error.

To be found guilty as a principal in the substantive crime of assault, an accused must have either been the perpetrator of the crime himself, or, while being actually or constructively present, aided and abetted its commission.

Upon this record the Defendant was found not to be the actual and immediate perpetrator of the assault against the doctor. The Justice specifically accepted a version of the related events which placed the knife in the exclusive possession of Clapperton.

I do make a finding, however, that the knife was a spontaneous action of just one of you, and it was not a calculated fact-as a matter of fact, the evidence is quite clear that (as) it relates itself to the doctor, that as soon as the doctor entered and the knife was shown at him, that two of you at least immediately escorted that person out of the building.

Separate from the incident with the knife, there is no evidence that violent acts were directed at the doctor by this Defendant. Nor does the evidence support a conclusion that the threatening activity directed at the receptionist placed the doctor in immediate physical danger.

We find within the record, however, ample evidence to conclude that Mower, by his conduct, aided and abetted in the commission of the felony of aggravated assault by Clapperton. 15 M.R.S.A. § 341 provides for prosecution and punishment of persons who 'aid in the commission of a felony,' as well as of persons who are accessories before the fact. It is not necessary to separately indict the accused as an aider and abettor or principal in the second degree. An indictment charging a defendant as a principal in the alleged crime is sufficient. State v. Berube, 158 Me. 433, 434, 185 A.2d 900, 901 (1962); State v. Burbank, 156 Me. 269, 279, 163 A.2d 639, 644 (1960); State v. Rainey, 149 Me. 92, 97, 99 A.2d 78, 82 (1953); State v. Saba et al., 139 Me. 153, 156, 27 A.2d 813, 815 (1942); State v. Flaherty, 128 Me. 141, 145, 146 A. 7, 9 (1929); 4 Wharton's Criminal Law and Procedure § 1790 (R. A. Anderson ed. 1957).

The evidence does show that the conduct of the Defendant was sufficient to convict him as a principal in the second degree. ² This Court has described the nature of those elements which must exist to support a conviction of an accused as a principal in the second degree:

(S)omething more than mere presence must be proved in order to convict as a principal a person who is not the actual perpetrator of the crime. It is sufficient if such person aided, abetted, assisted, advised or encouraged another in the commission of the crime, or was present for such purpose to the knowledge of the perpetrator. Likewise, any concerted participation in a general felonious plan, together with actual or constructive presence, is sufficient to make a person a principal as to any crime committed in execution of the plan. State v. Berube, supra at 158 Me. 434, 185 A.2d 901, 902.

Title 15 M.R.S.A. § 341 clearly provides for punishment of an aider and abettor in the same manner as prescribed for the first degree principal felon. The principal in the second degree differs from the principal in the first degree only in that he does not do the felonious deed himself or with the aid of an innocent agent, but rather he aids, commands, counsels or encourages a culpable party to perpetrate the crime. To convict a principal in the second degree, the State must prove actual or constructive presence, ³ intent, and some form of participation in the perpetration of the crime.

By his own testimony, the Defendant placed himself in Dr. Aldrich's office along with three friends when the events in question occurred. The evidence indisputably indicates that he was in close proximity to James Clapperton during his allegedly assaultive conduct.

To determine guilt or innocence, we look to defendant's intent:

'(K)nowledge or intent is seldom capable of...