State v. Evans

KAROHL, Judge.

Appellant appeals a jury conviction for robbery and assault. He was sentenced to serve concurrent 10 year sentences. He raises two points on appeal: (1) that there was insufficient evidence to prove that he had the necessary criminal intent for the conviction of assault, § 565.050, RSMo. Supp.1984, and robbery, § 569.020, RSMo. 1978, when he was not involved in the actual assault or robbery; and (2) that it was error to use the phrase “natural and probable consequence” in the verdict director for assault as that language is not sanctioned by the MAI instruction or the Notes on Use.

The testimony given at trial indicated the following:

On August 19, 1983, appellant was driving around, saw Byron Jones and Lavel Nylon and picked them up. He had known Jones for a couple of months and Nylon for several days. Jones and Nylon discussed snatching a purse as a way to make money. They sighted a young couple walking down the street and directed appellant to drop them off so that they could go snatch the purse and to wait until they returned. The defendant complied with the request. Nylon and Jones approached the couple and attempted to snatch the purse. The woman resisted and her companion turned to see the incident. The woman’s companion attempted to prevent the snatching and Jones shot him. Nylon and Jones then fled but were apprehended by the police. After hearing the gun shot defendant drove away from the area. He returned later and saw police officers talking to Nylon and Jones. As he drove by Jones called out to him. The police officers then stopped him and asked him if he knew Nylon and Jones and he said he did not. Defendant left the area. He was arrested in Carthage, Missouri one month later in connection with this incident. Defendant was charged with assault and robbery for acting with others in taking the purse and shooting the man.

On appeal we review the evidence in the light most favorable to the state disregarding all evidence and inferences to the contrary. State v. Williams, 652 S.W.2d 226, 227 (Mo.App.1983). The evidence clearly indicates that the actual assault and robbery were committed by Nylon and Jones. In order to find defendant *862guilty of these charges, the state must show that he had the culpable mental state for the offenses and was criminally responsible for the acts of the other two men. State v. Logan, 645 S.W.2d 60, 64 (Mo.App.1982). Assuming that defendant had the culpable mental state for the crime of purse snatching (as shown by the active participation in snatching i.e. providing the get away car 1) did he also have the culpable mental state for the robbery? Finding that he did, we affirm the robbery conviction.

Culpable mental state may be inferred from the circumstances. State v. Turner, 623 S.W.2d 4 (Mo. banc 1981), cert. denied, 456 U.S. 931, 102 S.Ct. 1982, 72 L.Ed.2d 448 (1982). An individual who promotes one crime and knows that other crimes may occur has the culpable mental state for the other crimes. State v. Logan, 645 S.W.2d at 65-66.

Section 569.020 RSMo 1978, defines robbery first degree as the forcible stealing of property accompanied by serious physical injury to any person or the use of a deadly weapon or dangerous instrument. Serious physical injury can be caused by the use of a weapon or by mere physical force. Defendant argues that he does not have the culpable mental state for the robbery because he did not know that Jones had a weapon. We note first that it is the serious physical injury or a weapon that makes the purse snatching a robbery. The fact that serious physical injury is possible when an individual resists a purse snatching indicates that defendant could have reasonably anticipated that an injury would be a part of the purse snatching.

The court in State v. Logan, 645 S.W.2d 60 (Mo.App.1982) said: “[i]n the multiple crime situation ... where evidence indicates the accomplice may have only purposefully promoted the initial crime, the required mental state is not necessarily implied for the subsequent crime or crimes. Additional evidence of the accomplice’s mental state for such crime is still required.” 645 S.W.2d at 64. However the court also said: “the MAI-CR2d provisions recognize that an accomplice who, when he promotes one crime, has knowledge that other crimes may occur, has a ‘culpable mental state’ with regard to those other crimes. Nothing more should be required.” 645 S.W.2d at 65-66.

Defendant may not have planned the robbery but he must have known that a serious physical injury could be inflicted on the victim of a purse snatching. In addition, the state proved that defendant knew that Byron Jones owned a gun since defendant had recently tried to purchase one from him. The state made a submissible case on the issue of culpable mental state for the robbery.

Defendant’s second point on appeal concerns the jury instruction in the assault charge involving the companion of the owner of the purse. The instruction was patterned after MAI 2.12 but deviated from it because that instruction does not apply when the charged crimes are not the same as the crimes initially contemplated by defendant. The instruction read:

A person is responsible for his own conduct and he is responsible for the conduct of other persons in committing an offense if he acts with them for the purpose of committing that offense [or any other offense committed by the other persons in pursuance of the common purpose or as a natural and probable consequence thereof,] or if, for the purpose of committing that offense [or any other offense committed by the other persons in pursuance of the common purpose or as a natural and probable consequence thereof, ] he aids or encourages the other persons in committing it.
As to Count II, if you find and believe from the evidence beyond a reasonable doubt:
*863First, that on August 19, 1983, in the City St. Louis, Byron Jones attempted to kill or cause serious physical injury to Joseph Crawford by shooting him,
then you are instructed that the offense of assault in the first degree had occurred, and if you further find and believe from the evidence beyond a reasonable doubt:
Second, that with the purpose of promoting of [sic] furthering the commission of robbery in the first degree, the defendant acted together with or aided Byron Jones and Lavelle Nylon in committing that offense, [and the offense of assault in the first degree submitted to you in the foregoing paragraph was committed in the pursuance of the common purpose of robbery in the first degree as a natural and probable consequence thereof ]2
then you will find the defendant guilty under Count II of assault in the first degree.
However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the propositions submitted in this instruction, you must find the defendant not guilty of that offense.
If you do find the defendant guilty under Count II of assault in the first degree, you will assess and declare the punishment at imprisonment for a term of years fixed by you, but not less than five years and not to exceed fifteen years.
But if you further find and believe from the evidence beyond a reasonable doubt that Byron Jones committed such assault by means of a deadly weapon, then you will assess and declare the punishment at:
1. Life imprisonment, or
2. Imprisonment for a term of years-fixecT by you, but not less than ten years and not to exceed thirty years, [emphasis ours].

The portions in brackets do not appear in MAI 2.12 and were added to adapt that instruction to the present facts. Under the common law a defendant was liable for the natural and probable consequences of an intended criminal offense. State v. Logan, 645 S.W.2d at 64. The instruction would be proper at the common law. The Missouri criminal code has altered this standard and now requires that the defendant have both criminal responsibility for the conduct of the third parties and the culpable mental state for all offenses. Id. at 64-65. § 562.016.1; § 562.036, RSMo 1978. Use of the natural and probable consequences standard was error as a matter of law, State v. Logan, 645 S.W.2d at 65, since the legislature did not adopt the common law standard of natural and probable consequences for accomplice liability. The proper standard for determining if defendant had a culpable mental state is knowledge that other crimes may , occur. Id. at 66. The instruction as given does not require the jury to find that defendant knew or could reasonably anticipate that the assault on a companion may occur. Here the assault charge was not an assault on the victim of the planned crime but on her companion. Appellant does not contend the state failed to make a submissible case. The natural and probable consequence instruction does not satisfy the element now in the code that defendant knew or could reasonably anticipate an assault may occur upon a companion during the planned crime. As the jury instruction on assault was incorrect we remand the case for a new trial solely on the assault charge.

The sentence and judgment of ten years for the crime of robbery is affirmed. We remand for a new trial the charge of assault due to instruction error.

PUDLOWSKI, P.J., concurs. CARL R. GAERTNER, J., concurs in part, dissents in part with separate opinion.

. See State v. Briscoe, 646 S.W.2d 424, 428 (Mo.App.1983).

. There was no error in the instruction on the robhery charge which left out the bracketed material in this paragraph and relied solely on the “acted together with or aided" language.