STATE of Missouri, Respondent, v. Barbara A. BARKER, Appellant.
No. WD 76764
Missouri Court of Appeals, Western District.
Sept. 16, 2014.
442 S.W.3d 165
R. Todd Wilhelmus, Butler, MO, for appellant.
Before Division Four: ALOK AHUJA, Chief Judge, Presiding, CYNTHIA L. MARTIN, Judge and RANDALL R. JACKSON, Special Judge.
CYNTHIA L. MARTIN, Judge.
Barbara Barker (“Barbara“) appeals her conviction following a jury trial of promoting child pornography in the second degree on a theory of accomplice liability. She raises five points on appeal, asserting the trial court erred in: (1) overruling her motion to suppress evidence seized from her home and overruling her objections to the admission of such evidence at trial; (2) overruling her objection to the admission of photographs seized from her home; (3) allowing a witness to testify that Barbara invoked her right to an attorney; (4) allowing testimony concerning out-of-court statements, including a guilty plea, made by James Barker (“James“)1; and (5) overruling her motion for judgment of acquittal because there was not sufficient evidence from which the jury could find her guilty beyond a reasonable doubt.
Because we conclude that there was not sufficient evidence from which the jury could find Barbara guilty beyond a reasonable doubt, we reverse and vacate Barbara‘s conviction and sentence.
Factual and Procedural History2
James was arrested. Barbara went to the police station to drop off medical supplies for James. Detective Paul Mangano (“Detective Mangano“) took advantage of the opportunity to take a statement from Barbara. Barbara was advised of her Miranda3 rights, ultimately signed a waiver, and gave a statement. Barbara told Detective Mangano that she caught James looking at pictures of naked young boys on his computer about six months before his arrest, and that she was disgusted and removed the files from his computer and installed parental controls. Barbara told Detective Mangano that James‘s computer had frozen up on several occasions in the three to four weeks immediately preceding James‘s arrest, and that she had, at
Barbara was charged by Information with violation of
Barbara appeals.
Analysis
As previously noted, Barbara raises five points on appeal. Her fifth point on appeal is dispositive, rendering it unnecessary for us to address Barbara‘s remaining points.
In her fifth point on appeal, Barbara argues that the trial court erred in overruling her motion for judgment of acquittal at the close of the State‘s evidence because there was insufficient evidence to permit the jury to conclude beyond a reasonable doubt that she was guilty of the crime charged in the Information on a theory of accomplice liability. Specifically, Barbara argues that the evidence did not support a reasonable inference that she engaged in conduct for the purpose of aiding or en-
We review the denial of a motion for judgment of acquittal the same as we review a challenge to the sufficiency of the evidence. State v. McQuary, 173 S.W.3d 663, 666-67 (Mo.App.W.D.2005). “We must determine ‘whether sufficient evidence was presented from which a reasonable juror could find the defendant guilty beyond a reasonable doubt, not whether the verdict was against the weight of the evidence.‘” Id. at 667 (quoting State v. Botts, 151 S.W.3d 372, 375 (Mo.App.W.D.2004)). On review, “we accept[] as true all evidence and its reasonable inferences in a light most favorable to the verdict and reject[] all contrary evidence and inferences.” Id. (quoting Botts, 151 S.W.3d at 375). However, we “may not supply missing evidence, or give the [State] the benefit of unreasonable, speculative or forced inference.” State v. Loyd, 326 S.W.3d 908, 916 (Mo.App.W.D.2010).
“The law of accessory liability emanates from statute, as construed by the courts.” State v. Barnum, 14 S.W.3d 587, 590 (Mo. banc 2000). In pertinent part,
“The doctrine of accomplice liability embodied in
“Any evidence, either direct or circumstantial, that shows affirmative participation in aiding the principal to commit the crime is sufficient to support a conviction.” State v. Smith, 108 S.W.3d 714, 719 (Mo.App.W.D.2003). “Affirmative participation may be proven by inference.” State v. Williams, 409 S.W.3d 460, 468 (Mo.App.W.D.2013). “Circumstances that may support the inference of an accomplice‘s affirmative participation include ‘presence at the crime scene; flight therefrom; association or companionship with others involved before, during, and after the crime; conduct before and after the offense; knowledge; motive; and a defendant‘s attempt to cover up his involvement.‘” Id. (quoting Smith, 108 S.W.3d at 719) (emphasis added).6 The accomplice must embark “‘upon a course of criminal conduct with others,’ making him ‘responsible for those crimes which he could reasonably anticipate would be a part of that conduct.‘” State v. Robinson, 196 S.W.3d 567, 570 (Mo.App.S.D.2006) (quoting State v. Workes, 689 S.W.2d 782, 785 (Mo.App.E.D.1985) (emphasis added)). However, “[n]o particular physical act is necessary in order to [support accomplice liability].” State v. Richardson, 923 S.W.2d 301, 317 (Mo. banc 1996).
With these principles in mind, we must determine whether the evidence in this case, viewed in the light most favorable to the verdict, established beyond a reason-
Barbara‘s trial was not lengthy. The State first admitted numerous exhibits containing hundreds of images purporting to represent child pornography. Though hundreds of images were admitted into evidence, only one exhibit, State‘s Exhibit 5, depicted the image described in the Information. Consistent with the Information, the verdict director at Barbara‘s trial required the jury to find beyond a reasonable doubt, in pertinent part, that:
First, that on or about March 8, 2012, in the County of Bates, State of Missouri, that James Barker possessed a visual depiction consisting of a still image stored by electronic means, which is capable of conversion into a visual image, represented by State‘s Exhibit # 5, and
Second, that the visual depiction was a person, under the age of eighteen years engaging in sexually explicit conduct, namely:-a young naked, prepubescent female lying on her back with her legs spread exposing her vagina, and
Third, that with regard to the facts and circumstances submitted in this instruction that James Barker acted knowingly,
then you are instructed that the offense of Possession of Child Pornography has occurred, and if you further find and believe from the evidence beyond a reasonable doubt:
Fourth, that with the purpose of promoting or furthering the commission of Possession of Child Pornography, the defendant acted together with or aided James Barker in committing the offense,
then you will find the defendant guilty of Possession of Child Pornography
....
As used in this instruction, a person acts purposefully, or with purpose, with respect to the person‘s conduct or to a result thereof when it is his or her conscious object to engage in that conduct or to cause that result.
Thus, to convict Barbara, the jury had to find beyond a reasonable doubt that she purposefully promoted James‘s knowing possession on March 8, 2012 of the pornographic image depicted in Exhibit 5.
The sum and substance of the State‘s evidence offered to establish that Barbara “affirmatively participated” in James‘s commission of the principal crime was limited to the testimony from three witnesses: (i) Detective Mangano; (ii) Haus; and (iii) Sheriff Chad Anderson (“Sheriff Anderson“). Detective Mangano testified that:
Barbara came by the sheriff‘s department after James was arrested “because she had some medication that her husband needed,” and he “decided to talk to her while she was there.”
Barbara ended up “telling [him] she wanted to make a statement.”
Barbara at first said she had no idea what was on James‘s computer, then later said “there was pictures of naked children on that computer.” Barbara said she believed the ages of the children were “[a]pproximately 12 or 13 years old.”
Barbara said “the computer would get locked up and that she would have to take a start-up disk to clean the computer and restart the computer. And that approximately six months before our arrival there, she had seen pictures of young children on there standing nude, and then she then went and put parental locks on there.”
Barbara said that she had ”walked from the kitchen into the living room—[James] has a glass display case of, like, old ships—model ships, and she said she thought she had seen a reflection of two young boys standing nude from the reflection on the glass.”
Barbara said she ”walked in there and she had told [James] that she thought that was nasty and he needed to get that shit off his computer.”
Barbara reported that she worked to fix James‘s locked up computer ”four or five times approximately three or four weeks before our arrival.”
Finally, when asked ”if we were to find child pornography on the computer, would she believe [James] had put it there,” Barbara responded that ”she would believe that he would have” put it there.
(Emphasis added.) A written version of Barbara‘s narrative statement was not introduced into evidence.7
The State then called Haus who testified that:
She had seen screen savers on James‘s computer from time to time showing naked young girls.
James “always had the door shut” and she would “knock on the door to serve” him meals, “and he would be looking at this child pornography.” James would spend “[p]retty much all day” at the computer, coming out “to get a cup of coffee, go to the bathroom, things like that.” James ate most of his meals “in front of the computer.”
Barbara did not take James‘s his meals in the computer room, and would make him “go and get it himself” if Haus did not take the meal to him.
Haus was asked if she ever witnessed Barbara “confront [James] about [the] alleged pictures on his computer.” She testified that she had, and that Barbara “would just say that that wasn‘t right and it needed to be cleaned up. And she would go and clean up everything on his computer and take it all off.”
Barbara took “the pornography pictures off, maybe just once. Otherwise, it was—she would just—the computer would freeze, so she would go and take it and clean it up, just to make it work again.”
On cross examination, Haus testified that Barbara tried to delete the pornography off the computer “[j]ust one time ... because she realized it was on there and realized it was wrong and just tried to delete them off of there.” Haus testified that at ”[n]o other times did [Barbara] realize [the pornographic pictures] were on there,” and that ”any time she saw [the pornographic pictures] and she had any idea they were there she got rid of them.”
On redirect, Haus testified that James‘s computer would freeze up, and James
“cussed [Barbara] up one side and down the other until ... she would go in there and spend hours trying to unfreeze his computer and clean it up and just make it work, because it would freeze up completely.” Haus testified this happened approximately five times.
(Emphasis added.)
Finally, the State called Sheriff Anderson who testified that he was present in the Barkers’ home when the search warrant was executed. He testified that he “asked her if there was going to be any sexually explicit photos in the house,” to which Barbara responded that “the computer would crash when [James] was on the internet and she would reinstall the software and files on the computer.”
At the close of the State‘s evidence, Barbara moved for dismissal.8 The trial court advised:
I‘m concerned about one issue, [State‘s attorney], and I‘m truly concerned about this. The paragraph 4 of your verdict director states that, for the purpose of promoting or furthering the commission of the possession of child pornography, [Barbara] acted together with or aided [James] in committing the offense. Can you tell me what evidence the State has proffered that allows the matter to get to the jury on that issue?
(Emphasis added.) The State responded: The evidence was that after [Barbara] was aware of the contents of the computer, on several occasions she went in and cleared his computer when it froze up, further enabling [James] to view these materials.
The trial court overruled Barbara‘s motion “at this time.” Thereafter, Barbara elected not to present any evidence. The trial court was not asked to revisit its ruling about the sufficiency of the evidence prior to instructing the jury.
We believe the trial court‘s apprehension about the sufficiency of the evidence to establish that Barbara acted for the purpose of promoting James‘s knowing possession of the discrete image identified in the Information was warranted. The State argues on appeal, as it did to the trial court, that Barbara “affirmatively participated” in James‘s commission of the charged crime because she restored James‘s computer with knowledge that James had used his computer to view alleged child pornography in the past.
As we have indicated, “affirmative participation” may be inferred from any number of circumstances, including knowledge.9 Williams, 409 S.W.3d at 468. However, “knowledge” necessarily refers to a principal‘s present commission, or intended future commission, of a crime. Without knowledge that a principal is committing or intends to commit a crime, an accomplice‘s conduct cannot be inferred to
Here, the State relies exclusively on Barbara‘s conduct in restoring James‘s computer to claim “affirmative participation,” arguing the conduct enabled James to continue to view child pornography. The restoration of a computer is not, however, inherently incriminating conduct, and, standing alone, permits no inference of criminal intent to aid or encourage criminal behavior.10 Thus, the evidence had to establish, at a minimum, that Barbara‘s conduct of restoring the computer was engaged in with knowledge that James intended to use the computer to commit a crime before an inference could be drawn that she acted purposefully to aid or en-
The only evidence establishing that Barbara saw what James was viewing on his computer related to a period of time six months prior to James‘s arrest. This was long before Barbara‘s conduct of restoring the computer—conduct which occurred in the three to four week period immediately preceding James‘s arrest. There was no evidence that Barbara ever again saw suspect images on James‘s computer. There was no evidence explaining why James‘s computer crashed in the three to four weeks preceding his arrest. There was no evidence about what Barbara saw when she restored the computer in the three to four weeks prior to James‘s arrest. There was no specific evidence about what Barbara restored to the computer. There was no evidence indicating when the image identified in the Information was placed on the hard drive of James‘s computer, and thus no evidence that the image (or any other image) was accessed by James and placed on the hard drive during or after a time when Barbara restored the computer. Though hundreds of purported child pornographic images were admitted into evidence by the State, nearly all of the images were housed on external devices, and not on the computer‘s hard drive. No
The State argues that the circumstances in the household described by Haus permit an inference that Barbara knew that James intended to access child pornography if she restored the computer, and thus permit the inference that Barbara restored the computer for the purpose of enabling James to do so. The State thus asks us to conclude that it is reasonable to infer criminal intent not from knowledge that a crime is or will be committed, but from inferred knowledge that a crime is or will be committed. The State cites no authority for this proposition. Though it is plainly settled that criminal intent may be inferred from knowledge that a crime is or will be committed, we are aware of no authority permitting criminal intent to be inferred from inferred knowledge that a crime is or will be committed. The absence of any such authority is consistent with the principle that “[a]n ‘inference’ is a conclusion drawn by reason from facts established by proof; ‘a deduction or conclusion from facts or propositions known to be true.‘” Draper v. Louisville & N.R. Co., 348 Mo. 886, 156 S.W.2d 626, 630 (1941) (citations omitted) (emphasis in original). It is one thing, therefore, to infer a purpose to aid or encourage from the fact of knowledge that a principal is committing or will be committing a crime. It is quite another thing, however, to infer criminal intent from circumstances that could or may give rise to an inkling or suspicion that a principal is committing or will be committing a crime. The latter scenario is more akin to “[a] supposition [which] is a conjecture based on the possibility that a thing could have happened. It is an idea or notion founded on the probability that a thing may have occurred, but without proof that it did occur.” Id. (emphasis in original). “A criminal conviction cannot be based upon probabilities and speculation.” State v. Boyd, 91 S.W.3d 727, 734 (Mo.App.S.D.2002). “While reasonable inferences may be drawn from direct and circumstantial evidence, ‘the inferences must be logical, reasonable and drawn from established fact.‘” State v. Power, 281 S.W.3d 843, 845 (Mo.App.E.D.2009) (quoting State v. Presberry, 128 S.W.3d 80, 91 (Mo.App.E.D.2003) (emphasis added)). “[C]ourts will not supply missing evidence or give the state the benefit of unreasonable, speculative or forced inferences.” State v. Langdon, 110 S.W.3d 807, 811-12 (Mo. banc 2003) (citing State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001)).
We find the circumstances here to be similar to those addressed in State v. Case, 140 S.W.3d 80 (Mo.App.W.D.2004). In Case, the defendant claimed a witness at his trial, Kelly, was an accomplice to the murder he committed, and that Kelly‘s testimony was therefore not sufficient to support his conviction. Id. at 92. The evidence established that Kelly heard about the defendant‘s plan to murder the victim, and attempted to dissuade the defendant, saying “That‘s ridiculous. Why can‘t you just break up with her?” Id. at 93. The evidence also established that Kelly asked the defendant “how and why he planned on killing [the victim].” Id. Kelly thereafter made a phone call to set up a meeting between the defendant and the victim. Id. We held that Kelly‘s actions were neither assistance nor encouragement and “unless she hoped or desired that by making the phone call she was helping [defendant] achieve his diabolical goal—which was not the case—Kelly was not an accomplice.” Id. Importantly, we held that “[m]ere knowledge that one‘s actions might facilitate the commission of a crime is not enough.” Id. (emphasis added).
Although the plea court established Movant was present during the crime, fled from the scene of the crime, and briefly associated with Smith before the commission of the crime, the plea court‘s line of questioning failed to adduce an admission by Movant that he drove the vehicle knowing that the purpose of driving the vehicle was for Smith to commit the crime.
Id. at 298. Though Douglas approached the sufficiency of the evidence to support a conviction on a theory of accomplice liability from the perspective of the factual basis to support a guilty plea, and not from the perspective of evidence and reasonable inferences therefrom to support a finding of guilt at trial, the holding is nonetheless instructive. It underscores that for conduct to support an inference of the requisite criminal intent, there must be evidence that the accomplice engaged in the conduct knowing it was for the purpose of aiding the commission of a crime—and thus knowing at the time the conduct is undertaken that a crime is being or will be committed.
Here, the evidence viewed in a light most favorable to the State did not establish that Barbara knew when she restored James‘s computer that James was committing, or was intending to commit, the crime of possessing child pornography. At best, Barbara could have suspected that her conduct might facilitate James‘s possession of child pornography—an insufficient basis to convict on a theory of accomplice liability. Case, 140 S.W.3d at 93; Douglas, 410 S.W.3d at 298. Even more compelling, no evidence indicated when the image identified in the Information was placed on the hard drive, meaning the State did not establish as a matter of law that Barbara‘s conduct in restoring the computer aided or encouraged James‘s possession of the image.
An inference of knowledge that a crime might be committed is insufficient standing alone to support a reasonable inference that an accomplice purposefully aided or encouraged the commission of a crime by conduct that is not inherently incriminating. Were we to conclude otherwise, we would be criminalizing non-incriminating conduct merely the actor could have anticipated that the conduct might facilitate the commission of a crime. For example, a parent whose child has wrecked a family vehicle while under the influence of alcohol could face criminal accomplice liability if
Plainly, these examples are absurd in their reach. Yet, they are legally indistinguishable from the circumstances in the case before us. Accomplice liability requires the State to establish beyond a reasonable doubt not merely conduct that technically facilitates the commission of a crime, but as well that the conduct was engaged in with the purpose to aid or encourage the commission of a crime. “[Only] [i]f an accomplice has a purpose to promote an offense, [may] he ... be found to have the required culpable state of mind for that offense.” State v. Roberts, 709 S.W.2d 857, 863 (Mo. banc 1986). That required mens rea cannot be inferred in the absence of evidence that the accomplice knew a crime was being committed or was intended to be committed. “‘[M]ere suspicion, however strong, will not take the place of evidence when life or liberty is at stake.‘” Smith, 108 S.W.3d at 719 (quoting State v. Coons, 743 S.W.2d 112, 114 (Mo.App.W.D.1988)). Based on the evidence in this case, inferring that Barbara “affirmatively participated” in James‘s possession of child pornography when she restored his computer because she could have known that he intended to use the computer to commit a crime is not a reasonable inference, and is instead purely speculative.11 Langdon, 110 S.W.3d at 811-12; Power, 281 S.W.3d at 845, McMullin, 136 S.W.3d 566 at 573. “A verdict based on suspicion will not be permitted to stand.” Smith, 108 S.W.3d at 719.
The State argues that other evidence should couple with Barbara‘s suspicion about James‘s use of the computer to support the inference that her conduct in restoring the computer was “affirmative participation.” The State argues that Barbara‘s “purpose or intent” to aid or encourage James‘s knowing possession of child pornography can be inferred from the additional fact that she gave false information to the police. Mangano testified that Barbara initially said “she had no idea what was on the computer,” but then said that she had seen naked pictures on James‘s computer. The State argues the jury could have reasonably “construed the initial lie and subsequent admission as consciousness of guilt.” We disagree.
It is true that “[w]hen proven false, exculpatory statements evidence a consciousness of guilt.” State v. Hibbert, 14 S.W.3d 249, 253 (Mo.App.S.D.2000). It is not clear, however, that Barbara‘s initial statement was false. From the trial transcript, it appears Barbara may have been asked two questions by Detective Mangano: whether she knew what was on the computer at the time of James‘s arrest, and whether she had previous knowledge about
The State also argues that we should consider the additional circumstance that Barbara‘s “tolerance for her husband‘s unsavory habits may be inferred from the fact that after he was arrested with several thousand images of child pornography, [Barbara] vented her anger not at her husband, but at the police (whom she threatened to sue).” This argument is based on Mangano‘s testimony that, when Barbara arrived at the police station, she “stated that if anything was to happen to her husband, that she would sue the sheriff‘s office for everything they had.” This testimony did nothing to establish that Barbara “tolerated” James‘s “unsavory habits.” The statement on which the State relies follows testimony that Barbara had brought to the police station James‘s medication and a breathing apparatus for sleeping, and had expressed concern for his physical well-being. Barbara‘s statement merely stressed the police department‘s obligation to care for James‘s physical well-being, not a belief that his possession of child pornography should be tolerated.
In summary, the evidence does not support a reasonable inference that Barbara restored James‘s computer with the pur-
Barbara‘s fifth point on appeal is granted.
Conclusion
The trial court erred in overruling Barbara‘s motion for judgment of acquittal at the close of the State‘s evidence. The trial court‘s judgment is reversed. Barbara‘s conviction and sentence are vacated, and Barbara is ordered discharged.
All concur.
CYNTHIA L. MARTIN
JUDGE