State v. Dixson
State v. Dixson
Opinion of the Court
Antonio Dixson ("Defendant") appeals from the judgment entered on his convictions after a jury trial for tampering in the first degree. We reverse.
Defendant was charged, along with Aaron Garrison ("co-defendant"), of tampering with a vehicle by removing the tires without the consent of the owner. At trial, a police officer testified that around 11:00 p.m. one night while on patrol he received a radio call for tampering at an address on Virginia Avenue and responded to it. The officer testified that based on information from the radio call he was looking for "two black males,"
Defendant's responsibility for this crime was based solely on the theory that he acted together with co-defendant to remove the tires without the owner's consent.
In his second point on appeal, Defendant contends the officer's testimony about the contents of the radio call-that there were "two black men" or "two black men removing tires"-was inadmissible hearsay and should have been excluded. There are two ways to view this out-of-court statement: (1) they were admissible solely for the purpose of explaining subsequent police conduct, as the State argues, in which case they could not be used as substantive evidence of guilt, or (2) they were inadmissible hearsay because they went beyond the scope of what was necessary to explain the officer's subsequent conduct, as Defendant contends, in which case they should have been excluded and could not be used as evidence of guilt. In either case, these statements cannot be used to prove the truth of the matter asserted therein. The State did not rely on the truth of the these statements at trial to demonstrate Defendant's guilt, nor does it argue on appeal that they should be considered as substantive evidence in reviewing Defendant's challenge to the sufficiency of the evidence. Those statements cannot be considered for any purpose other than showing subsequent conduct.
In his first point on appeal, Defendant contends there was insufficient evidence to establish his affirmative participation in this crime because the evidence showed only that he was present at the crime scene when police arrived. Our review of this point is limited to determining whether sufficient evidence was presented from which a reasonable juror could find the defendant guilty beyond a reasonable doubt. State v. Nash ,
The evidence in this case proved beyond a reasonable doubt that the crime of tampering occurred because the tires were removed without the owner's permission. But there was no direct evidence as to who committed the crime, and the State relied-as it is permitted to do-on circumstantial evidence to support its theory that Defendant and co-defendant together removed these tires. To support Defendant's accomplice liability for that crime, the State was required to prove beyond a reasonable doubt that Defendant affirmatively participated in committing it. Any affirmative act, even mere encouragement, is enough. State v. Burrage ,
That is the case we have here. Defendant was at the scene of a crime, standing near the car that had been tampered with and the car that the removed tires were found in, along with co-defendant. There was no evidence that Defendant and co-defendant knew each other and no evidence that they were together prior to or during the crime. We cannot supply this missing evidence by drawing an inference that because he was there, Defendant must have known co-defendant or been with him during the crime or before. Even if that were a reasonable, unforced, non-speculative inference, it would still be derived from his presence. Thus, reliance thereon would be contrary to the law that mere presence alone is not enough to sustain a conviction. Likewise, the fact that the removed tires were found in the back of the black car, which was owned by co-defendant's girlfriend, gives rise to an inference that co-defendant was connected to the crime. But because there was no evidence that Defendant knew co-defendant, his girlfriend or the other people in the car,
In addition to no evidence that Defendant associated with co-defendant or the others, there was also no evidence about Defendant's conduct before or during the crime. In fact, the only evidence of his conduct is that when the officer arrived after the crime, he and co-defendant were "just standing there," not doing anything with either of the cars, and neither of them ran when the officer approached. This is the opposite of the type of post-crime conduct-flight from the scene and attempts to conceal crime-that our courts have said can be used, in combination with presence, to draw a reasonable inference of affirmative participation. Similarly, the State's suggestion at trial that two people must have been involved in removing these tires is not based on any facts in the evidence. There was no testimony about what is required to remove tires from one car and put them into another car's trunk, and while they certainly do not roll off of one and into another car themselves, there was nothing in the evidence to suggest it required more than one person. Again, to infer that Defendant was one of the people would be based solely on his presence at the scene. The State also points to the fact that the crime occurred in a vacant lot in the middle of the night. The late hour, the fact that it was dark and that the crime occurred behind a vacant building gives rise to the inference that whoever committed the crime was trying to avoid detection. But *621to ascribe any of that to Defendant requires reference back to and reliance on, again, his presence at the scene. It would be improper to rely on an inference that because he was there in the middle of the night in a vacant ally, he must have been up to no good to supply missing evidence of Defendant's conduct.
No matter how reasonable the above inferences are and no matter what light we construe them in, they stem entirely from the single circumstance that Defendant was present at the crime scene. Every other piece of circumstantial evidence in this case is only tied to Defendant by virtue of his presence at the scene: he had no connection to the car where the tires were found, except that he was standing near it; he had no connection to the tampered with car, except that he was standing near it; he had no connection with any of the other people on the scene, except that he was standing near one of them; and he had no connection with any other incriminating facts about the scene, except that he was standing there. As such, all of the inferences on which this conviction relies are founded in his presence and not any other evidence of affirmative participation. These are precisely the inferences our courts prohibit: simply because a person is present, even under highly suspicious circumstances and where a crime has clearly occurred or is occurring, does not without more give rise to an inference that the person participated in the crime. The additional circumstances beyond mere presence needed to support an inference of affirmative participation-namely, companionship with the co-defendants or evidence of the defendant's conduct-must be something more than inferences derived solely from mere presence. Otherwise, the conviction would still ultimately be based on mere presence.
Our review of cases in which the convictions relied on circumstantial evidence to prove accomplice liability reveals that substantially more evidence than we have here is required for our courts to say that a fact-finder could infer affirmative participation. The cases affirming those convictions all involve significantly more than mere presence. For example, in In Interest of SBA, this Court found that, in addition to the juvenile's presence at the scene of a fight between two groups of boys, there was evidence that he and the other boys involved were all together when the fight was initiated, the juvenile fought with other boys and he was there when the victim was injured, but he made no effort to assist the victim and instead fled from the scene with the accomplices.
Even those cases in which our court have reversed convictions, there was more evidence of affirmative participation than we have in this case. For example, in State v. Brockman , the defendant was present at a home where meth manufacturing paraphernalia was seized from the yard and from several cars on the property.
Here, there is only one of the circumstances our courts require to show affirmative participation, Defendant's presence. A conviction cannot, as a matter of law, be supported by that fact alone. See Barnum , Brockman , Interest of S.B.A. , Townsend,
Point I is granted. The judgment is reversed, and the conviction and sentence are vacated.
Sherri B. Sullivan, J., and Kurt S. Odenwald, J., concur.
Prior to trial, Defendant moved in limine to exclude references to hearsay statements in the radio dispatch call. The State responded that it would only be offering that evidence to explain the officer's subsequent conduct when he arrived at the scene. The court ruled that it would allow the officer to testify that he responded to a call for persons in an alley removing tires. When the officer testified that the call referred to "two black males," defendant objected, and the objection was overruled.
There was no objection to this testimony at trial. The argument that the details of the radio call were unnecessary to explain subsequent conduct was raised again in both of Defendant's motions for judgment of acquittal at the close of the State's evidence and all the evidence and again in Defendant's motion for new trial.
Defendant and co-defendant were not tried together. Co-defendant pled guilty to the charges of tampering filed against him.
The State agrees on appeal that the statements were only admissible to show subsequent conduct. And although it points out that the defense objections at trial may not have properly preserved this claim of error (because they were raised after the answer and did not state the grounds, or because some of the challenged testimony was invited by testimony elicited on cross-examination), the State does not argue that, as a result, the evidence should be considered in determining the facts. See, e.g., State v. Lebbing ,
While it is clear from the record that the court and both attorneys were aware that this evidence was only being offered and admitted for the limited purpose of explaining subsequent conduct, we note that there was no such instruction explaining that to the jury. As a result, there is a some probability that-although it was not argued this way by the prosecutor-this jury considered the contents of the radio call as substantive proof that there were in fact "two black men removing tires" from the car and based its guilty verdict in part on an inference that Defendant was one of them. This is especially likely given the lack of other evidence connecting Defendant to this crime, as discussed herein. See State v. Robinson ,
The jury here was given the proper instruction on this law based on Missouri Approved Instruction-CR 3d 310.08. The instruction stated: "The presence of a person at or near the scene of an offense at the time it was committed is alone not sufficient to make him responsible for the offense, although his presence may be considered together with all of the evidence in determining guilt or innocence."
The officer was asked at trial if the people inside the car "indicate[d] they knew defendant or the other person," and he said "I believe so," but an objection to that testimony was sustained. That vague testimony, even if the objection had been overruled and the testimony allowed, could not be relied on to show Defendant's companionship with any of these people.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.