                                       In the
                       Missouri Court of Appeals
                                Western District
STATE OF MISSOURI,                          )
                                            )
              Respondent,                   )   WD76764
                                            )
v.                                          )   OPINION FILED:
                                            )   September 16, 2014
BARBARA A. BARKER,                          )
                                            )
               Appellant.                   )

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

Before Division Four: Alok Ahuja, Chief Judge, Presiding, Cynthia L. Martin, Judge and
                          Randall R. Jackson, Special 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

         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



         1
           Because Barbara Barker and James Barker share the same surname, we refer to each by first name for
purposes of clarity. No familiarity or disrespect is intended with respect to any of the parties.
         2
           "We view the evidence in the light most favorable to the conviction." State v. Sutton, 427 S.W.3d 359,
359 n.1 (Mo. App. W.D. 2014).

                                                       2
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 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.




       3
         Miranda v. Arizona, 384 U.S. 436, 444-45 (1966).
       4
         All statutory references are to RSMo 2000 as supplemented, unless otherwise indicated.
       5
         James had previously entered a guilty plea to commission of the principal crime.

                                                       3
                                            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 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).

                                                4
       "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 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 561.041.1(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

                                             5
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 (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)).




         6
           We emphasize "may" because the presence of evidence establishing one of the identified "circumstances"
does not necessarily support an inference of criminal intent. An illustrative edification of this principle as applied
to accomplice liability is seen in the seemingly conflicting treatment of the circumstance of presence at the crime
scene. We have recognized that "[c]ircumstances that may support the inference of an accomplice's affirmative
participation include 'presence at the crime scene.'" Williams, 409 S.W.3d at 468 (quoting Smith, 108 S.W.3d at
719). Yet, we have also unequivocally held that "mere presence at a crime scene, considered alone or in
combination with a refusal to interfere, is insufficient to support a conviction" on a theory of accomplice liability.
Barnum, 14 S.W.3d at 591. These seemingly inconsistent holdings peacefully co-exist on the continuum of
reasonable inference. Stated differently, the presence of a particular circumstance is not self-proving of criminal
intent, but may support an inference of criminal intent if the totality of the evidence establishes that the inference is
reasonable.

                                                            6
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

doubt that Barbara "affirmatively participated" in James's commission of the charged

offense--knowing possession of the discrete image identified in the Information.

       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:




                                            7
             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."

                                            8
         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
         7
          During Detective Mangano's testimony, the State admitted Exhibit 40 while discussing Barbara's waiver of
her Miranda rights. Mangano was not asked to identify Exhibit 40. However, the legal file includes an exhibit list
which identifies Exhibit 40 as "Miranda Barbara Barker 3-9-12 10:15," confirming that the exhibit was the waiver of
Barbara's rights, and not Barbara's statement. Barbara submitted an "appendix" with her Reply Brief which includes
what purports to be the narrative statement taken by Detective Mangano from Barbara. Because the statement was
not an exhibit at trial, nor otherwise a part of the legal file, we have disregarded the statement. See Heck v. Heck,
318 S.W.3d 760, 765 n.3 (Mo. App. W.D. 2010) ("Documents in an appendix to an appellate brief that are not
contained in the record on appeal are not appropriately before this court for consideration.").

                                                         9
         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 Sherriff 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:


         8
         At the close of the State’s evidence at trial, Barbara made a motion to dismiss rather than a motion for
judgment of acquittal. While this designation was technically incorrect, this did not deprive Barbara of her right to
have the motion considered as one for judgment of acquittal. State v. Whitledge, 266 S.W.2d 616, 618 (Mo. 1954).
Because Barbara did not present any evidence after her motion at the close of the State's evidence was denied, she
has not waived her claim of error. State v. Nunley, 992 S.W.2d 892, 894 n.2 (Mo. App. S.D. 1999). Barbara's

                                                         10
         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



counsel did not renew the motion for judgment of acquittal after announcing his decision not to present evidence, or
in a post-verdict motion as is permitted by Rule 27.07(c). Barbara's counsel was not obliged to do either to preserve
the issue of the sufficiency of the evidence for appellate review in light of the fact that Barbara put on no evidence
after her initial motion was denied. See State v. McGee, 284 S.W.3d 690, 704 (Mo. App. E.D. 2009) (citing Nunley,
992 S.W.2d 894-95).
          9
            See footnote number 6.

                                                         11
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 have been

engaged in for the purpose of aiding or encouraging the commission of the crime. See

section 562.041.1(2) ("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.") (emphasis

added); May, 71 S.W.3d at 183 ("[a]n accomplice is one who, before or during the

commission of a crime, intentionally and knowingly aids or encourages the commission

of a crime.") (emphasis added).

         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


         10
           The nature of an accomplice's conduct can itself serve as circumstantial evidence of criminal intent to aid
or encourage a principal's commission of a crime if the conduct is inherently incriminating. See, e.g., Wilson, 359
S.W.3d 60, 68 (holding that although accomplice's mere presence in a home where drug trafficking was occurring
was not sufficient to support a conviction on a theory of accomplice liability, "[p]resence may be considered along
with other incriminating evidence to determine if the total circumstances raise a reasonable inference that the
accused participated in the crime") (emphasis added). In Wilson, the "other incriminating evidence" included the
fact that Wilson "had eight individually wrapped 'rocks' of crack cocaine in his pocket and was in close proximity to
the bag of crack cocaine found on the floor beneath where he had been seated," and that the cocaine Wilson
possessed was "considered to be a 'dealer's amount'." Id. See also State v. Sensabaugh, 9 S.W.3d 677, 679 (Mo.
App. E.D. 1999) (holding Sensabaugh's presence in a mobile home where it was apparent that methamphetamine
was being manufactured was not sufficient to establish accomplice liability, but that presence coupled with his
inherently incriminating conduct in selling methamphetamine for the two women who manufactured it permitted an
inference that Sensabaugh encouraged the manufacture of methamphetamine).

                                                         12
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 encourage James's

commission of the crime charged in the Information.

      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 evidence connected those images temporally or otherwise to Barbara's conduct, and in

any case, those images were not the subject of the Information.

      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

                                           13
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., 156 S.W.2d 626, 630 (Mo. 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,

                                             14
91 (Mo. App. W.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).

       Similar as well are the circumstances in Douglas v. State, 410 S.W.3d 290 (Mo.

App. E.D. 2013). In Douglas, a movant's Rule 24.035 motion argued a guilty plea to

second degree murder and armed criminal action on a theory of accomplice liability was

not supported by a sufficient factual basis. Id. at 292. The movant had admitted during

                                            15
the plea hearing that he had been picked up in a vehicle by Mr. Smith; that he took over

the role of driving the vehicle; that he became aware after getting into the vehicle that

Mr. Smith had a handgun; that he drove the vehicle into an area at Mr. Smith's direction;

and that Mr. Smith fired the handgun at people on a porch while the vehicle was stopped

at a stop sign. Id. at 293-94. The prosecutor then advised the plea court that "for the

factual basis, we need to establish that the [movant] had knowledge that Mr. Smith was

going to be firing a weapon out of that vehicle." Id. at 294. Further questioning of the

movant during the plea hearing elicited his testimony that he did not know what Mr.

Smith intended to do, but that he put two and two together while driving Mr. Smith

around that Mr. Smith was likely intent on avenging the earlier killing of a friend. Id. at

294-95. On appeal, the Eastern District concluded that these statements did not establish

a factual basis for Douglas's guilty plea.

       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



                                             16
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 the parent replaces and

lets the child drive the vehicle, worried the child may continue to drink and drive.

Anyone who permits another to use a computer knowing the person has previously

accessed child pornography on a computer could face accomplice liability. The purchase

of a new computer for a person known to have accessed child pornography on a computer

                                            17
could result in accomplice liability. The continued payment of a bill for the provision of

internet access with knowledge that another in the home has previously used the internet

to access child pornography would support accomplice liability. Giving money to a

known drug addict where the money is thereafter used to buy drugs could support

accomplice liability.

        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

        11
           Our independent research failed to unearth a single reported case in the state of Missouri, or in any
jurisdiction for that matter, where a household member has been convicted of possession of child pornography on a
theory of accomplice liability, rendering the decision to charge Barbara on that theory unusual and noteworthy.

                                                       18
Langdon, 110 S.W.3d at 811-12; Power, 281 S.W.3d at 845, McMullin, 136 S.W.3d 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 what was on the computer. In this light, Barbara's initial

response was truthful, and was not contradictory to her subsequent response. Consistent

with this view of Barbara's statement, though there was evidence that Barbara knew six

months before James's arrest what was on the computer, there was no evidence Barbara

knew what was on the computer at the time James was arrested. In fact, Mangano

                                             19
hypothetically asked Barbara whether she would believe James was responsible for

placing child pornography on his computer if the police were to find same. Accordingly,

it cannot be said that Barbara's initial statement was "proven false." Hibbert, 14 S.W.3d

at 253.

          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 purpose or intent of aiding or encouraging James's

knowing possession of child pornography, and specifically the image identified in the

Information. There was no evidence presented from which a reasonable juror could find



                                            20
Barbara guilty beyond a reasonable doubt of possession of the image described in the

Information as an accomplice.

      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.




                                          __________________________________
                                          Cynthia L. Martin, Judge


All concur




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