From the Circuit Court of the City of St. Louis; Criminal Appeal; Judge Gary M. Gaertner.
Motion for Rehearing Overruled, Transfer Denied August 29, 1983.
Before Crandall, P.j., Reinhard, Crist, JJ.
The opinion of the court was delivered by: Crandall
Appellant was convicted by a jury of the crime of burglary in the second degree, § 569.170, RSMo (1978). He was sentenced to seven years' imprisonment as a prior offender, § 558.016, RSMo (1978). This appeal ensues. We affirm.
At approximately 11 a.m. on November 2, 1981, Officers Edwards and Dickens responded to a call concerning a burglary in progress at 4012 Enright Avenue. They drove up to the front entrance of the building and observed the door standing open. The building was partially fenced off. A white pickup truck, parked four to five feet from the rear wall of the building on the back lawn, was loaded with sinks, radiators, pipes, and wire. Officer Edwards saw appellant arranging the fixtures on the truck. He also observed two other men in the yard, later identified as James Cody and James Thomas.
Police Officer Young arrived at the scene in a separate vehicle. He saw the three men loading radiators and sinks onto the pickup truck. Officer Young arrested appellant as he started to walk away from the truck and toward a nearby alley. He then arrested James Thomas and James Cody. All three men were covered with dirt, cobwebs, and plaster.
Officer Dickens who was on patrol with Officer Edwards testified that he saw James Thomas and James Cody exit the rear of the building and walk in the direction of the pickup truck. He later inspected the vacant building. Sinks, radiators, and bathtubs were missing. It appeared that they had been torn from the walls. Water was on the floors, and the interior steps of the building were damaged by heavy objects which had apparently been dropped on them.
The owner of the building testified that two days before this incident all the fixtures in the building were intact. He said that it appeared that the fixtures and pipes had been ripped from the walls.
Appellant first contends that the trial court erred in submitting verdict-directing Instruction No. 5 *fn1 to the jury because the evidence was insufficient to show that appellant unlawfully entered the building. Instruction No. 5 was based upon MAI-CR 23.52 (Burglary in the second degree), as modified by the recently revised and approved (April 30, 1982) MAI-CR 2.12 38 MO.B.J. 307, 307-308 (1982). MAI-CR 2.12 is used when the defendant's guilt is based on the theory of accessorial liability; the conduct constituting the offense is committed by someone other than the defendant and liability will depend in part on imputing the conduct of the other person to him. Notes on Use 6 states that depending upon the particular fact situation, the elements of the offense must be ascribed to the particular person (or persons) as supported by the evidence, and that person will not always be the defendant. In ascertaining whether to ascribe the elements of the offense to the defendant or the other offenders, Notes on Use 6 gives four examples. The trial court must have found example (c) applicable, since in Instruction No. 5, in the paragraph following "then you are instructed that the offense of burglary in the second degree has occurred . . ." the words "acted together with or aided" are used as instructed. Uhis was the proper example to take guidance from since the evidence was unclear as to whether the appellant actually entered the building, though there was undisputed testimony that the other offenders were seen exiting the building. Example (c) states in part:
Where the evidence is not clear or conflicts as to which person (in a group including the defendant) engaged in the conduct constituting the offense (as where the defendant is charged with burglary and the evidence shows the defendant was one of two persons, one of whom unlawfully entered the building and stole while the other remained outside as a lookout) ascribe the elements of theoffense to the defendant or the other person or persons.
The trial Judge must have believed that the "or" clause gave him the option to ascribe the elements of entry to either appellant or his codefendants. The element of entry was ascribed to appellant, and verdictdirecting Instruction No. 5 resulted. This was an erroneous interpretation of the "or" clause. The element of entry should have been ascribed to: defendant or James Thomas or James Cody. As submitted, Instruction No. 5 required the jury to find appellant guilty as a principal offender. The third requirement of the instruction, along with the general Discussion of accessorial liability was superfluous. This error, however, was prejudicial to the State rather than the appellant because it required the State to prove that appellant entered the building, an unnecessary element of proof under the facts of this case.
We now consider the sufficiency of the evidence to meet the additional element of proof that appellant entered the building. In testing the sufficiency of the evidence, facts and appropriate inferences intelligently drawn therefrom must be assessed in the light most favorable to the State and all adverse inferences and evidence disregarded. Review is limited to whether the evidence is sufficient to build a submissible case and whether there is sufficient evidence from which reasonable individuals could conclude appellant is guilty. State v. Turner, 631 S.W.2d 695, 696 (Mo.App. 1982); State v. Moon, 602 S.W.2d 828, 831 (Mo.App. 1980). A reasonable inference from the evidence at trial was that appellant was in the building at some point during the commission of the burglary. Fixtures had been yanked from the walls inside the building; appellant and co-defendants Cody and Thomas were dirty and covered with plaster.
Officer Dickens testified that he saw James Thomas and James Cody exit from the rear of the building and walk in the direction of the pickup truck. Officer Young testified that he saw all three men loading radiators and sinks into the truck. Although the mere presence of an accused at the scene of a crime will not sustain a conviction, presence may be considered along with other incriminating evidence to determine if the total circumstances raise a reasonable inference that the accused participated in that offense. State v. Means, 628 S.W.2d 426, 428 (Mo.App. 1982). The evidence showing appellant's clothing was full of plaster as were Cody's and Thomas' clothes, along with direct testimony that Cody and Thomas were seen exiting the building, coupled with the evidence ...