State v. Carter

849 S.W.2d 624, 1993 Mo. App. LEXIS 329, 1993 WL 58899
Missouri Court of Appeals·Decided March 9, 1993·No. Nos. WD 45235, WD 46384·Published·Cited by 10 cases

Opinion

FENNER, Judge.

Appellant, Thomas Carter, appeals his conviction of robbery in the first degree in violation of section 569.020, RSMo 1986.1 Carter also appeals the court’s denial of his motion for postconviction relief after an evidentiary hearing. The appeals have been consolidated pursuant to Rule 29.15.

A jury trial took place in the Circuit Court of Boone County on June 20, 1991. The jury found appellant guilty of the Class A felony of robbery in the first degree. Specifically, appellant was found to have acted in concert with David Hickem, who robbed a convenience store at knife-point, by driving the getaway car in which Hickem made his escape. On August 13, 1991, the trial court sentenced appellant as a prior and persistent offender to a term of ten years imprisonment in the Missouri Department of Corrections, to be served consecutively to a sentence previously imposed in the Circuit Court of Boone County.

The evidence adduced at trial includes the following: On December 28, 1990 at approximately 3:15 a.m., David Hickem committed the armed robbery of the Ultra Mart convenience store at the corner of Green Meadows and Providence Road in Columbia, Missouri. Hickem, who was wearing a ski mask, threatened the store clerk, Christopher Francis, with a knife and told him to put money in a paper bag. Hickem then took Francis out to the parking lot and told him to lie down in Francis’ car which was parked in front of the store. Francis testified that he sat up after a few seconds and saw Hickem pacing around near the store. When Francis looked up [626] again several seconds later, Hickem was gone.

The police found a trail of footprints in the snow from the Ultra Mart parking lot where Hickem had been pacing to a nearby carwash. The footprints led into a bay of the carwash and tire tracks led away from this bay to Providence Road. Sergeant Mike McFarland of the Columbia Police Department testified that he drove south on Providence Road after being informed about the robbery at the Ultra Mart. According to his testimony, he saw a car driving northbound on Providence Road which resembled a vehicle seen leaving an earlier incident. He first noticed this car at the intersection of Providence and Stadium Road. McFarland testified that it took him only about two minutes to get to this intersection from the police department.

McFarland followed the car and saw three black men in the car, including a passenger in the back seat who matched the description of the Ultra Mart robber. After the car ran a red light, McFarland pulled it over. Upon looking into the car, McFarland saw the ski mask and bag of money on the seat between appellant and the front passenger, Daryl Sheley. He did not order the men out of the car until other officers arrived. After the men got out of the car, appellant, who was driving the car, gave McFarland permission to search the car. In addition to the ski mask and paper bag containing the money, McFarland found a knife partially hidden under the right front passenger seat. Francis later identified the ski mask as that worn by the robber. Furthermore, the footprints in the snow and on the floor of the Ultra Mart matched the tennis shoes worn by Hickem.

Hickem admitted at trial that he had committed the robbery, but denied that appellant or Sheley had assisted him in any way. Hickem claimed that another man had driven the getaway car and that this man had dropped him off on Providence Road, at which point he was picked up by Carter and Sheley.

After being found guilty of robbery in the first degree, appellant filed a motion for judgment of acquittal notwithstanding the jury’s verdict, or in the alternative for a new trial, on July 12, 1991. On December 18,1991, appellant filed a pro se motion for postconviction relief under Rule 29.15. Appellant’s counsel filed an amended motion for postconviction relief on March 10, 1992. After an evidentiary hearing, appellant’s Rule 29.15 motion was denied on April 27, 1992.

In his first point on appeal, appellant argues that the trial court erred in overruling appellant’s motion for judgment of acquittal at the close of the evidence and motion for a new trial in that the state failed to prove, beyond a reasonable doubt, every element of the offense charged by not producing sufficient evidence to convince a rational trier of fact that appellant knowingly acted in concert with David Hickem to forcibly steal currency in the possession of Ultra Mart. Appellant argues further that the only evidence presented by the state was circumstantial and consistent with a reasonable hypothesis of appellant’s innocence of the charged offense, namely that appellant had no knowledge that Hickem had robbed Ultra Mart.

In determining the sufficiency of the evidence, we accept all evidence, circumstantial or direct, tending to support the conviction, together with all favorable inferences reasonably to be drawn therefrom, and we disregard all evidence to the contrary. State v. Coons, 743 S.W.2d 112, 114 (Mo.App.1988) (citations omitted). The information charged appellant with committing the Class A felony of robbery in the first degree, in violation of section 569.020.2 Hickem pled guilty to committing the robbery and the evidence clearly shows that [627] Hickem actually committed the robbery. Thus, appellant's liability was based on section 562.041.1(2) which provides:

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

According to the court in State v. Lager, 744 S.W.2d 458, 456 (Mo.App.1987), the factors to be considered in accomplice liability situations are as follows:

The evidence need not show that defendant personally committed every element of the crime. Among other things, indi-cia of aiding and abetting are presence at the scene of the crime, flight therefrom and association with others involved before, during, and after the 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 before and after the offense are circumstances from which one’s participation in the crime may be inferred.

In Lager, the court stated that the joint possession of recently stolen property will support an inference of guilt when coupled with other evidence. Id. The court further stated that presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in a crime may be inferred. Id. In other words, the requirement of affirmative participation may be satisfied by inference and the evidence need not directly place the appellant in the act of committing the crime for which he is charged. Coons, 743 S.W.2d at 114.

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State v. Carter, 849 S.W.2d 624, 1993 Mo. App. LEXIS 329, 1993 WL 58899 (Mo. Ct. App. 1993).

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