State v. Skelton, s. 18671

• Decision Date: 17 October 1994
• Docket Number: 19213,Nos. 18671,s. 18671
• Citation: 887 S.W.2d 699
• Parties: STATE of Missouri, Respondent, v. Gary SKELTON, Appellant. Gary SKELTON, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 699

887 S.W.2d 699

STATE of Missouri, Respondent, v. Gary SKELTON, Appellant.

Gary SKELTON, Appellant, v. STATE of Missouri, Respondent.

Nos. 18671, 19213.

Missouri Court of Appeals,

Southern District,

Division Two.

Oct. 17, 1994.

Motion for Rehearing and Transfer to

Supreme Court Denied Nov. 7, 1994.

Rebecca L. Kurz, Asst. Appellate Defender, Kansas City, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Cheryl A. Caponegro, Asst. Atty. Gen., Jefferson City, for respondent.

CROW, Judge.

A jury found Appellant, Gary Skelton, guilty of robbery in the first degree. § 569.020, RSMo 1986. The trial court, having found Appellant a prior offender, § 558.016.2, RSMo Cum.Supp.1992, a persistent offender, § 558.016.3, RSMo Cum.Supp.1992, and a class X offender, § 558.019.4(3), RSMo Cum.Supp.1992, ¹ sentenced him to twenty years' imprisonment. Appellant brings appeal 18671 from that judgment and sentence.

After delivery to the Department of Corrections, Appellant attacked the conviction in an action per Rule 29.15. ² Following an evidentiary hearing, the motion court entered judgment denying relief. Appellant brings appeal 19213 from that judgment.

We consolidated the appeals, Rule 29.15(l ), but address them separately in this opinion.

Appeal 18671

Two of Appellant's three points relied on pertain to this appeal. Appellant has numbered them II and III. We begin with point III, which asserts the evidence was insufficient to support the verdict.

In adjudicating that issue we (a) view the evidence in the light most favorable to the State and grant the State all reasonable inferences from the evidence, (b) disregard contrary inferences unless they are such a natural and logical extension of the evidence that a reasonable juror would be unable to disregard them, and (c) consider whether a reasonable juror, viewing the evidence that way, could find each element of the crime beyond a reasonable doubt. State v. Grim, 854 S.W.2d 403, 411 (Mo. banc 1993), cert denied, 510 U.S. 997, 114 S.Ct. 562, 126 L.Ed.2d 462 (1993).

So viewed, the evidence establishes that on the afternoon of December 3, 1991, David Pardue went to an apartment (from which he had recently moved) to pick up his $643 Social Security check. He found it in the mailbox.

Pardue then went to the apartment of Greg Killingsworth, a former neighbor, arriving about 3:30 p.m. There, Pardue found Killingsworth, Joey Rains and Appellant.

Appellant asked Pardue if he had any money. Pardue replied, "No," but mentioned his Social Security check. Appellant said he wanted to borrow five dollars to buy beer, and asked Pardue to cash the check. Pardue stated he "didn't want to."

Appellant announced he thought he knew where he could get some money. The quartet left Killingsworth's apartment and "went on a ride" in an automobile driven by Appellant.

During the ride, Appellant told Pardue, "I know where you could cash your check if ... you just go get it." Appellant repeated the request, and Pardue acquiesced.

Appellant drove to Pardue's former apartment. Pardue got the check, and Appellant drove the quartet to "Cadwell's." Appellant accompanied Pardue inside, where Pardue received $643 for the check. Pardue handed Appellant five dollars, then put the remaining cash in his wallet.

They then returned to the automobile, and Appellant drove to a liquor store where they "picked up a 12-pack of Olympia beer."

The quartet then "drove around," eventually stopping at a mobile home. Rains entered the mobile home, remaining inside some 15 minutes. He returned to the automobile, and the quartet "took off and drove around."

When it began "getting dark," Appellant "pulled off into a gravel turnoff road" by a "low water bridge," stopped the automobile, and said, "We're going to rob you."

Rains told Pardue to get out of the automobile. Pardue obeyed. Rains also got out, grabbed Pardue's left arm, and pushed him forward. Pardue landed "on all fours," fracturing his left elbow and cutting his right hand. Pardue's testimony:

"Q. Now, you're down on the ground on all fours. What did Rains do?

A. He pulled a knife on me, held it to my throat, and said, 'I want your money.'

Q. What did you do?

A. So I reached into my back right pocket, took out my wallet, handed it to Rains, and he took my money and threw my wallet back down on the ground. I didn't look up or nothing. All I heard was the car doors close and the car take off."

Pardue walked to a "little gas station," where he obtained transportation by taxicab to the residence of his "girlfriend." After reporting the incident to police, Pardue went to a hospital, where his left arm was placed in a cast.

Pardue next encountered Appellant in the courthouse on the day of Appellant's preliminary hearing. Appellant approached Pardue and asked to talk "in the corner for a minute." Pardue described the confrontation:

"He said, 'I didn't do anything to you.' He says, 'I want to know how much money was taken and, I'll pay you back.' And I said, 'I want my dad to come over to listen to this.' So I had my dad come over to listen to what he was saying. And he said, 'If you just leave, I'll pay you back your money.' And I said, 'I can't leave because I've been subpoenaed to court.'

....

And then we came back from lunch. I went into the restroom, and he followed me into the restroom and he said, 'You know, I can get a lot of years for this. So, please, just don't testify.' And I said, 'Well, I was subpoenaed and I have to testify.' "

Appellant does not maintain the evidence was insufficient to establish that Pardue was the victim of robbery in the first degree. Instead, Appellant's theory that the evidence was insufficient to support a verdict of guilty against him is, in his words:

"[T]he state did not prove that [Appellant] is criminally responsible for the conduct of ... Rains. The state did not establish that [Appellant] aided or encouraged ... Rains in robbing ... Pardue. According to ... Pardue's testimony, all of the affirmative actions comprising the elements of the offense were committed by ... Rains."

Section 562.041.1, RSMo 1986, provides, in pertinent part:

"A person is criminally responsible for the conduct of another when

(1) ...

(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."

Presence during commission of a crime is, alone, insufficient to support a conviction under the above statue. State v. Daniels, 861 S.W.2d 564, 566 (Mo.App.E.D.1993); State v. Roper, 819 S.W.2d 384, 385 (Mo.App.E.D.1991). However, the statute does not require that an accused personally perform each of the acts constituting the elements of the crime. State v. Jeffries, 858 S.W.2d 821, 824 (Mo.App.E.D.1993); State v. Mills, 809 S.W.2d 1, 3 (Mo.App.E.D.1990). Any evidence fairly showing affirmative participation by an accused in aiding another to commit a crime is sufficient to support a conviction. Jeffries, 858 S.W.2d at 824; Mills, 809 S.W.2d at 3. Indicia of aiding and abetting include presence at the scene of the crime during its commission, flight therefrom, and association with others involved before, during, and after commission. State v. Forister, 823 S.W.2d 504, 508 (Mo.App.E.D.1992); State v. McGowan, 789 S.W.2d 242, 243 (Mo.App.W.D.1990).

Here, it was Appellant who, upon learning Pardue had a Social Security check, repeatedly urged him to cash it. Appellant accompanied Pardue when the check was cashed and inferably saw the amount of money. Appellant drove the quartet around until dusk, then stopped at an isolated site and said, "We're going to rob you." When Rains reentered the automobile after the robbery, Appellant drove away, leaving Pardue afoot.

When Appellant arrived at the courthouse for his preliminary hearing and saw Pardue there to testify, Appellant implored Pardue to depart without testifying, promising to reimburse him for the amount stolen if Pardue cooperated. Efforts by defendants to induce prosecution witnesses not to testify have been held admissible as manifesting a consciousness of guilt. See: State v. Marvel, 756 S.W.2d 207, 211-12 (Mo.App.S.D.1988).

We hold the evidence was sufficient for a reasonable juror to find beyond a reasonable doubt that Appellant, before and during the commission of the robbery, and with the purpose of promoting its commission, aided Rains in committing it. Indeed, Appellant's announcement, "We're going to rob you," as he stopped the automobile confirms Appellant and Rains had planned the robbery. Appellant's point III is denied.

Appellant's point II charges the trial court with error in "allowing" the prosecutor to cross-examine Appellant "as to factual details of [his] prior convictions." Appellant concedes this claim of error was not preserved for appellate review inasmuch as the lawyer who represented him at trial ("defense counsel") did not object to the questions when they were asked and did not mention the matter in the motion for new trial. State v. Blankenship, 830 S.W.2d 1, 10 (Mo. banc 1992). Nonetheless, Appellant insists we should review the point for plain error. State v. Ervin, 835 S.W.2d 905, 921 (Mo. banc 1992), cert. denied, 507 U.S. 954, 113 S.Ct. 1368, 122 L.Ed.2d 746 (1993). Under plain error review, an appellate court will not reverse a conviction unless the alleged error resulted in manifest injustice or a miscarriage of justice. State v. Simpson, 846 S.W.2d 724, 726 (Mo. banc 1993).

Defense counsel presented Appellant as a witness in the trial court. During direct examination by defense counsel, Appellant admitted he went to prison in 1979 for "robbery down in Joplin." Asked by defense counsel how many years he received, Appellant answered, "Four and three, running together." Appellant added, "I stuck my finger in my coat ... I got a robbery charge for it ......