dissenting.
I concur in Judge Hoffs opinion as to Points I, II, and IV. I respectfully dissent from Judge Hoffs opinion as to Point III. I believe Defendant has failed to meet his burden under plain error review that the evidence was insufficient to prove Defendant, acting through his accomplice, had the purpose to commit robbery in the first degree or took a substantial step in the commission of robbery in the first degree. I would therefore affirm Defendant’s conviction for attempted robbery in the first degree.
The facts as found by the jury are as follows: At about 6:00 p.m. on December 4, 2000, Officer Michael Youngblood of the St. Louis County Police Department began observing the Bank of America ATM at 1200 Fern Ridge Parkway. Officers knew that customers had been victims of armed robberies at that ATM, and the officers had been provided with descriptions from the victims and photographs made from ATM surveillance tapes of potential suspects. Officers Youngblood and Koeller watched the area from an unmarked car, and they communicated by radio with other officers who also surveyed the scene.
At about 7:15 p.m., Officer Thomas Taylor radioed Officer Youngblood and said that he saw a silver Tahoe pass him several times, drive southbound, then drive northbound and onto a dead-end street. The Tahoe was missing a front license plate and appeared to have two occupants. Several seconds later, the Tahoe parked in the lot across the street from Officer Youngblood. Then, the Tahoe drove out of the lot and pulled in front of the bank building. The Tahoe’s passenger, William Tabb, got out of the vehicle and walked around the side of the building. The driver, Defendant, exited onto Fern Ridge Parkway, then pulled into a parking lot off a dead-end section of Capistrano Street near Town & Four Parkway. From this location the ATM was plainly visible.
Officer Youngblood momentarily lost sight of Tabb as Tabb walked around the building. Soon thereafter, however, he saw Tabb walk from the back of the building, cross the Bank of America parking lot, and approach a car at the ATM. As Officer Youngblood was watching him, Tabb appeared to be talking on a cellular telephone. Officer Youngblood testified, ‘When the vehicle started to drive away, [Tabb] started walking across Fern Ridge. When the vehicle was out of sight, he began running back to the building here.” Officers Youngblood and Koeller thought that Tabb might have spotted them, so they informed police that Tabb was fleeing the scene.
Meanwhile, Officer Brad Kelling, who was also conducting surveillance at the ATM, received a radio dispatch regarding two suspects on either side of Olive Street. Officer Kelling planned to arrest the suspect who had been in some bushes observing the ATM and who matched the description of a previous robbery suspect. Thereafter, Officer Kelling found Tabb by some bushes and arrested him. Tabb had a pellet gun in the sleeve of his coat, which to Officer Kelling looked and felt like a real pistol.
As officers arrested Tabb, Officer Taylor turned onto the dead end of Capistrano Street in an attempt to catch the Tahoe, driven by defendant. The Tahoe backed out of a parking space and drove towards the officer; Officer Taylor stopped his car, and Defendant also stopped. Officer Tay*101lor saw Defendant talking on a cellular phone. The officer ordered Defendant out of his car, and as Defendant exited, the cellular phone fell to the ground. Officer Thomas looked inside the Tahoe and saw a pair of binoculars. He also took the number from the rear license plate.
Officer Youngblood seized Tabb’s cellular phone. After police had obtained the phones from both Defendant and Tabb, Officer Youngblood determined the last number called from Tabb’s phone and called that number. Defendant’s phone rang.
Defendant cites State v. Ballenger, 72 S.W.3d 154 (Mo.App. W.D.2002) to support his argument that there was insufficient evidence to prove attempted robbery in the first degree. Ballenger involved the attempted stealing of anhydrous ammonia, a liquid used as a source of nitrogen to grow crops, from a farm tank. It is also used as an ingredient in the manufacture of methamphetamine. In finding insufficient evidence to uphold Defendant’s conviction for attempted stealing, the court in Ballenger concluded “the only conduct which occurred in this case was one individual leaving the truck momentarily, shining a flashlight on the anhydrous ammonia tank, and then getting back in the truck and driving away.” Id. at 158. The court held this conduct by itself did not constitute a “substantial step.” Id.
Unlike the facts in Ballenger where the suspect voluntarily withdrew from the tank after shining a flashlight on it, here Defendant (through his accomplice, Tabb) withdrew from the commission of the robbery only after the car with the intended victim drove away. Further, in our case Tabb fled from the scene and was later found hiding in the bushes, behavior consistent with guilt. In our case, there was evidence of planning including, the discovery of cell phones and binoculars, the presence of a getaway driver, surveillance of the crime scene, flight from the crime scene, hiding to evade police, and discovery of a gun in Tabb’s sleeve.
I believe the case of State v. Stewart, 587 S.W.2d 579 (Mo.App.1976) is more factually similar to our case. In Stewart a defendant and three accomplices planned to rob a courier as he left a bank with payroll money. The suspects armed themselves, took their assigned positions approximately sixty feet from the bank, and as the courier left the bank the police, who were conducting a surveillance of the bank based on information of a possible robbery attempt, intervened and arrested the four men. On appeal, defendant argued that despite evidence of prolonged planning and preparation, there was no overt act sufficient to constitute attempted robbery. The court held that,
[W]hen the four men drove to the bank, alit and took up their assigned positions, then being armed, ready, willing and able to intercept, assault and rob the courier, they had then gone beyond mere preparation. This conduct, under the principles announced in [State v. Thomas, 438 S.W.2d 441 (Mo.1969) ] was ‘an act towards the doing, sufficient, both in magnitude and in proximity to the fact intended, to be taken cognizance of by the law....’
The court further held the evidence was sufficient for attempted robbery in the first degree despite the fact there was neither confrontation with the victim nor the threatened use or display of a deadly weapon.
Instructive also is the section on attempt in LaFave and Scott’s treatise Criminal Law. LaFave and Scott argue that the Model Penal Code approach to attempt places the emphasis on what the defendant has already done rather on what remains to be done.
*102The Comment to Section 564.011.1, RSMo 2000 (Inchoate Offense; Attempt), echoes the arguments made by LaFave and Scott when they discuss acts potentially constituting a “substantial step”:
These criteria are a matter of degree, but the basis for the indicative nature of the “substantial step” shifts the emphasis from what has yet to be done to what has already been done. The fact that further major steps must be taken by the actor to complete the offense attempted does not render an act insubstantial. However, the “substantial step” is merely part of the evidence required to go to the jury on the question of purposive conduct.
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The policy reason underlying the shift in emphasis from what has yet to be done to what has been done, as stated in the Model Penal Code, is that the law is not interested merely in punishing dangerous acts, but also in neutralizing dangerous individuals. Thus subsection 1 represents a shift in the emphasis of Missouri law to the extent that conduct may suffice for an attempt though not coming as close to the actual commission of the offense as present Missouri law often requires.1 [Emphasis added.]
In contrast to the approaches to attempt articulated above in Criminal Law and in the Comment to Section 564.011.1, Defendant’s argument is consistent with the “physical proximity approach.” Defendant argues that through the actions of Tabb he “did not do anything or touch anybody. The act of walking towards the vehicle and then retreating is not strongly corroborative of Tabb’s purpose to complete the offense and forcibly steal property from an occupant of the vehicle.” This position is contrary to both the Model Penal Code and to the “substantial step” approach Missouri has adopted. As we have held in Stewart, neither a confrontation with a victim nor a last proximate act is necessary to prove attempted robbery. Defendant’s approach would have police officers in similar situations wait until the victim is in physical peril before a valid arrest for attempted robbery could be made. Such a result would be both legally and practically unacceptable.
As it may apply to Point III, I would also find no merit to Point V. In Point V, Defendant alleges the trial court plainly erred in allowing the State to elicit testimony from Officer Taylor that, when arrested, Defendant did not ask why he was under arrest. Relying on State v. Graves, 27 S.W.3d 806, 810 (Mo.App. W.D.2000), Defendant argues the testimony was an improper use of post-arrest silence as affirmative proof of his guilt. In Graves, the state referenced defendant’s post-arrest silence in its opening statement, on direct examination during its case in chief, and in closing argument. Id. at 809. The court determined that these references were improper, because there had been no evidence of a defense introduced by the defendant that could be impeached by her silence. Id. at 811. The State used defendant’s post-arrest silence, therefore, not as impeachment but as affirmative proof of her guilt in violation of her Fifth Amendment rights. Id. The court, nevertheless, declined to reverse the conviction because there was overwhelming evidence of guilt. Id. at 812.
Plain error review involves a two-step process. State v. Scurlock, 998 S.W.2d 578, 586 (Mo.App. W.D.1999). First, we determine whether the claim for review *103“facially establishes substantial grounds for believing that ‘manifest injustice or miscarriage of justice has resulted.’ ” Id.; State v. Brown, 902 S.W.2d 278, 284 (Mo. banc 1995). If we find plain error on the face of the claim, we may, at our discretion, undertake the second step: determining whether the claimed error actually resulted in manifest injustice or miscarriage of justice. Scurlock, 998 S.W.2d at 586. Manifest injustice depends on the facts and circumstances of the particular case. State v. Zindel, 918 S.W.2d 239, 241 (Mo. banc 1996). “When guilt is established by overwhelming evidence no injustice or miscarriage of justice will result from the refusal to invoke the rule.” State v. Jordan, 627 S.W.2d 290, 293 (Mo. banc 1982).
Even if, as Defendant argues, error exists, there was overwhelming evidence of guilt established by police eyewitness testimony relating the crime as it unfolded. Thus Officer Taylor’s testimony did not cause Defendant to suffer manifest injustice and any error in the State’s use of Defendant’s silence was not plain error.
. We note that Stewart was decided prior to the 1973 Proposed Code where the standard for proving attempt was significantly higher than that in the post-code change. The 1973 Proposed Code became effective on January 1, 1979.