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State v. Barker

Court of Appeals of Missouri, Western District, Fourth Division

September 16, 2014


Opinion Filed: September 16, 2014.

Page 166

Appeal from the Circuit Court of Bates County, Missouri. The Honorable James K. Journey, Judge.

Gregory L. Barnes, Jefferson City, MO, for respondent.

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. All concur.


Page 167

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 History[2]

In March 2012, the Bates County Sheriff's Department questioned Jessica Haus (" Haus" ) as a suspect in the theft of Barbara's prescription medication. At the time, Haus, who is married to Barbara's son, shared a residence in Rich Hill with Barbara and Barbara's husband, James. During this questioning, Haus told Detective Ken Rush (" Detective Rush" ) that she had witnessed James viewing child pornography on his home computer on several occasions and that his computer had screen savers featuring naked children. Based on Haus's statements, a search warrant was secured. Law enforcement executed the search warrant and seized James's computer, along with numerous computer disks, DVDs, and CDs. Several thousand images of naked children were found on these items.

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 Miranda [3] 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

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James's insistence, restored the computer on each occasion. Barbara also told Detective Mangano that if child pornography were found on the computer, she would believe that James had put it there.

Barbara was charged by Information with violation of Section 573.035,[4] the class B felony of possession of child pornography in the second degree, in that " on or about March 8, 2012, . . . the defendant, acting together with [James] knowingly possessed child pornography of a person less than eighteen years of age, consisting of a naked prepubescent female lying on her back with her legs spread exposing her vagina." Barbara was tried on a theory of accomplice liability, with James as the principal actor in the crime.[5] The jury returned a guilty verdict. The trial court entered a judgment of conviction and sentenced Barbara to 45 days in jail and a fine of $1,000. Barbara's sentence was stayed pending appeal.

Barbara appeals.


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 encouraging James's possession of the pornographic image identified in the Information.

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, section 562.041 provides that " [a] person is criminally responsible for the conduct of another when . . . [e]ither before or during the commission of an offense with the purpose of promoting the commission of an offense, he aids or agrees to aid or attempts to aid such other person in planning, committing or attempting to commit the offense." Section 562.041.1(2). " This subsection is designed to make individuals who could not be guilty of a crime solely on the basis of their own conduct, guilty nonetheless as an accessory." Barnum, 14 S.W.3d at 590. Thus, " [a]n accomplice

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is one who, before or during the commission of a crime, intentionally and knowingly aids or encourages the commission of a crime." State v. May, 71 S.W.3d 177, 183 (Mo. App. W.D. 2002).

" The doctrine of accomplice liability embodied in section 562.041.1(2) comprehends any of a potentially wide variety of actions intended by an individual to assist another in criminal conduct." Barnum, 14 S.W.3d at 591 (citation omitted). However, the evidence must establish that, " with the purpose to promote the offense, [an accomplice] aided or encouraged another person's conduct that constituted the offense." State v. Wilson, 359 S.W.3d 60, 67 (Mo. App. W.D. 2011) (emphasis added). Key to accomplice liability, therefore, is that conduct without the requisite culpable mental state is not sufficient to support a conviction. State v. Holmquest, 243 S.W.3d 444, 449 (Mo. App. W.D. 2007) (holding that the required culpable mental state of an accomplice is that the accomplice acted with the purpose to promote the commission of the offense for which he is being held liable). Missouri cases characterize conduct coupled with the requisite mens rea --that is, the purpose to promote the principal's commission of a crime--as " affirmative participation." State v. Clay, 975 S.W.2d 121, 139 (Mo. banc 1998), cert. denied, 525 U.S. 1085, 119 S.Ct. 834, 142 L.Ed.2d 690 (1999).

" 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.'" [6] Id. (quoting Smith, 108 S.W.3d at 719) (emphasis added). 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 reasonable

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doubt that Barbara " affirmatively participated" in James's commission of the charged offense--knowing possession of the discrete image ...

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