State v. James

641 S.W.2d 146, 1982 Mo. App. LEXIS 3776
CourtMissouri Court of Appeals
DecidedOctober 8, 1982
DocketNo. 12488
StatusPublished
Cited by6 cases

This text of 641 S.W.2d 146 (State v. James) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. James, 641 S.W.2d 146, 1982 Mo. App. LEXIS 3776 (Mo. Ct. App. 1982).

Opinion

BILLINGS, Judge.

Defendant Shirley D. James was tried and convicted by a Greene County jury of stealing without consent in violation of § 570.030, RSMo 1978 and sentenced to two years imprisonment. Her appeal challenges the sufficiency of the evidence to support the verdict, attacks the verdict directing instruction, and contends she should have been granted a mistrial because of a prejudicial answer given by a witness for the prosecution. We affirm.

In reviewing the sufficiency of the evidence to sustain defendant’s conviction, we accept as true all evidence, circumstantial or direct in nature, favorable to the verdict, together with all favorable inferences which can reasonably be drawn therefrom, and reject and cast aside all evidence and inferences to the contrary. State v. Nash, 621 S.W.2d 319 (Mo.App.1981). In light of the foregoing standard of review, we find no difficulty in concluding the jury could reasonably find that the defendant was an active participant in a “diamond switch” at the Diamond Shoppe in Springfield, as demonstrated by the facts which follow.

A well-dressed couple [defendant and Donald Ray James] entered the jewelry store on April 28,1980, and the man asked a female clerk to see a large diamond. The clerk went to a vault and returned with a 1.97 carat unmounted diamond which she placed in a pair of jeweler’s lock tweezers. The clerk handed the tweezers to the man, together with a jeweler’s loupe. The clerk observed the defendant kept watching the back doors of the establishment. As the man started examining the diamond, the defendant pointed at some rings in a showcase and made an inquiry of the clerk concerning them.

In the méantime, defendant’s companion had turned his back to the clerk and was facing the front of the jewelry store as he was purportedly viewing the diamond through the loupe. Defendant then directed another question to the clerk about the rings in the showcase. The clerk ignored the second question because she could see the man’s arm moving down even though he was continuing to hold the loupe to his eye with his other hand. By this time the clerk’s suspicions were aroused and she went around the counter in order to determine what the man was doing. She discovered the tweezer was empty and the man was fingering an ostensible diamond in his hand. He placed the stone on a piece of paper that the clerk had originally placed on the counter and asked if the store would accept a ring he was wearing in trade and handed her his ring. The clerk handed the man’s ring to another employee to take to the rear of the store for an appraisal.

The clerk then noticed that the stone the man had placed on the paper did not appear to be the diamond she had obtained from the vault. The man stated “we will be back in an hour.” The clerk replied they would conclude the transaction right then. The couple hurriedly started towards the front entrance of the store, followed by the clerk who again told them she wanted to complete the matter right then. As the couple departed, in a fast walk, the clerk took the stone the man had placed on the paper to the store’s jeweler who recognized it was not the diamond from the vault but was an imitation diamond.

The clerk alerted two male employees of the store that the couple had the store’s diamond and the two employees started after defendant and the man. By this time the twosome were running across the parking lot towards a Cadillac automobile which bore Texas license plates. The motor of the car was running and the driver was Ben Millican. Defendant and her companion got into the rear seat of the car. As the vehicle started moving, one of the male employees of the jewelry store positioned himself directly in its path in an effort to block its departure. His efforts were re[148]*148warded by being struck by the vehicle and knocked to the paving.

A short time later the Cadillac was observed driving onto the parking lot of a Springfield convenience store located some distance from the jewelry store. The three occupants of the car were identified as defendant, Don James and Ben Millican. About 15 minutes later this trio appeared at a house about two blocks from the convenience store. Defendant asked if she could use the telephone at the residence to call a taxicab “because their car had broken down.”

The abandoned Cadillac was searched at the convenience store parking lot. In some clothing left in the car, the officers found another large fake diamond. Defendant, Don James, and Ben Millican, known associates of each other, were thereafter arrested in Texas.

As was stated in State v. Arnold, 566 S.W.2d 185 (Mo. banc 1978), at 187:

“ ‘It is well settled that a party may be charged with the commission of the felony and be held under such charge for being present and participating in concert with the others in the commission of the crime, or for being present and aiding and assisting another in doing it. It is not necessary that he, personally, have done all the things which together make up the elements of the crime. State v. Sheard, Mo.Sup., 276 S.W.2d 196, certiorari denied, 352 U.S. 849, 77 S.Ct. 68, 1 L.Ed.2d 60; State v. Whitaker, Mo.Sup., 275 S.W.2d 316; State v. Chernick, Mo. Sup., 278 S.W.2d 741.’ ”
“... [T]he requirement of ‘affirmative participation’ may be satisfied by inference and the evidence need not directly place the defendant in the act of committing the crime for which he is charged. This principle was recognized in State v. Reed, 453 S.W.2d 946 (Mo.1970), where the court held at 948-949: ‘... [I]t has also been held that presence, companionship and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred. As stated in State v. Ramsey, Mo., 368 S.W.2d 413, 417, “Evidence fairly showing any form of affirmative participation in a crime is sufficient to support a conviction.” It is not necessary that the defendant personally did all of the things which together make up the elements of the crime. State v. Butler, Mo., 310 S.W.2d 952, 957.’ ” [citations omitted]. See: State v. Harper, 637 S.W.2d 342, (Mo.App.1982); State v. Harris, 602 S.W.2d 840 (Mo.App.1980). [Our emphasis].

Here, we have the defendant entering the jewelry store with a male companion, watching the rear entrance, and attempting to divert the clerk’s attention while her partner was in the process of switching the fake diamond for the store’s diamond. He and the defendant beat a hasty retreat from the store when the clerk became suspicious that a switch had taken place. They ran to the awaiting getaway car and fled the scene. She attempted to obtain further transportation for the trio after they abandoned the getaway car. The threesome were thereafter seen together in Texas.

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Related

State v. Swederska
802 S.W.2d 183 (Missouri Court of Appeals, 1991)
State v. Ware
770 S.W.2d 249 (Missouri Court of Appeals, 1989)
Millican v. State
733 S.W.2d 834 (Missouri Court of Appeals, 1987)
Hanson v. State
684 S.W.2d 337 (Missouri Court of Appeals, 1984)
State v. Chaney
663 S.W.2d 279 (Missouri Court of Appeals, 1983)
State v. Millican
641 S.W.2d 144 (Missouri Court of Appeals, 1982)

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Bluebook (online)
641 S.W.2d 146, 1982 Mo. App. LEXIS 3776, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-james-moctapp-1982.