State v. House , 1986 Mo. App. LEXIS 5007 ( 1986 )

CLARK, Chief Judge.

Michael House was convicted by a jury of the offense of stealing property valued at $150.00 or more. He contends on this appeal that the evidence by the state was insufficient to support the conviction and that his motion for a judgment of acquittal should have been sustained. Affirmed.

The evidence presented by the state and not contested by appellant established that appellant, Jimmy Simmons, who testified for the state, and Mike Marlow were at an apartment of a friend on the evening of March 23, 1984. Marlow and Simmons engaged in a discussion of ways to obtain money and talked about breaking into houses. At about 9:00 p.m., Simmons and Marlow accompanied by appellant left the apartment and walked about one block to the home of Homer Boyce who was not known to any of the three. Marlow went to the door and finding no one at home, he forced entry by kicking in the door. Appellant stood by without entering and Simmons remained in the street. Soon, Mar-low emerged from the house carrying a pillowcase in which were items of silverware and jewelry taken from the residence.

Appellant, Marlow and Simmons returned to the apartment from the Boyce house and obtained the loan of an automobile from a woman friend. The pillowcase with the stolen goods was placed in the car and the three drove off. At some point, Simmons who was driving let appellant and Marlow out, the apparent plan being that Marlow would commit another burglary. Later, Simmons returned, picked up appellant and Marlow and they drove to appellant’s house. The contents of the pillowcase were emptied out and according to Simmons, the silverware and jewelry taken from the Boyce home were spread out along with some other items which presumably came from another theft.

Appellant contends the evidence summarized above did not make a submissible case of stealing because the proof showed only his presence at the time the burglary was committed and no evidence that he was ever in possession of the stolen goods. He cites State v. Dudley, 617 S.W.2d 637 (Mo.App.1981) for the proposition that mere presence at the scene of a crime is not enough to make even a circumstantial case.

The facts in Dudley were quite different from those in this case. Dudley was observed by a police officer standing on the sidewalk in front of a market looking inside through broken glass in the door. He appeared to be moving his hands and mouth. As the officer approached, Dudley began to run and another man, never apprehended, jumped out through the broken window and fled. There was no evidence that Dudley had associated himself with the burglary or even knew that anyone was inside the store. The facts were entirely consistent with the hypothesis that Dudley in passing by on the sidewalk had noticed the broken door and stopped to investigate. Dudley cites State v. Castaldi, 386 S.W.2d 392 (Mo.1965) for the proposition that presence at the scene of the crime, suspicious circumstances and flight do not satisfy the state’s burden of proof.

In the present case, the evidence against appellant showed more than mere presence when the Boyce home was entered. Consistent with the verdict, the state is entitled on our review not only to the benefit of all favorable evidence, but also to inferences which would justify submissibility. State v. Story, 646 S.W.2d 68, 72 (Mo. banc 1983). Even if it be assumed, as appellant contends, that he was unaware of Marlow’s plans as the trio set out looking for unoccupied houses, he was certainly aware of the criminal enterprise when Marlow commenced to batter down the Boyce front door. Instead of dissuading Marlow or calling for help or even leaving the premises, appellant stood at the entrance awaiting completion of the burglary and then accompanied Marlow as he made off with the stolen property. Finally, when the time came to appraise the results of the expedition, appellant’s house was made available for that purpose.

Applicable to the facts of this case are the statements of law in State v. Gannaway, 649 S.W.2d 235, 239 (Mo.App.1983):

“ ‘One who, before or during the commission of a crime, intentionally and knowingly aids or encourages the commission thereof is guilty of that offense. State v. Lute, 608 S.W.2d 381, 384 (Mo. banc 1980). Aiders and abetters who act with common purpose with active participants in the crime, incur criminal liability by any form of affirmative advancement of the enterprise. The state’s proof to effect a proper conviction need not show that defendant personally committed every essential element of the crime. State v. Pierson, 610 S.W.2d 86, 91[6] (Mo.App.1980). Among other things, in-dicia of aiding and abetting are presence at the scene of the crime, flight therefrom and association with others involved before, during and after commission of the crime. State v. Kennedy, 596 S.W.2d 766, 769[5] (Mo.App.1980). Proof of any form of participation by defendant in the crime is enough to support a conviction [State v. Nickelson, 546 S.W.2d 539, 543[5] (Mo.App.1977) ] and his presence at the scene, his companionship and conduct before and after the offense are circumstances from which one’s participation in the crime may be inferred. State v. Nichelson, supra at 543[8].’ State v. Lyell, 634 S.W.2d 239, 241[1-5] (Mo.App.1982).”

The evidence in this case was sufficient to show that appellant gave his support to Marlow’s criminal activities and entitled the state to submit the charge of stealing and the offense of burglary as well.

The judgment is affirmed.

GAITAN, J., concurs.

NUGENT, J., dissents in separate opinion.