APPEAL from the Circuit Court of St. Clair County; the Hon.
JOHN J. HOBAN, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Following a jury trial in St. Clair County, defendant, Robert Crutcher, was convicted of armed robbery and sentenced to a term of 6 to 18 years imprisonment. From his conviction and sentence, defendant appeals.
The facts established that Jerry Stultz was working at a filling station on Camp Jackson Road in the early morning hours of October 30, 1977. At approximately 2 a.m. that morning, he observed a green Ford with its lights out on a road near the service station. Five minutes later, the car with three occupants entered the station and stopped at a gas pump. The passenger in the front seat, later identified as David Martin, directed Stultz to fill up the car. As Stultz pumped the gas he noticed defendant, who was seated in the back seat, lock the back doors and roll up the back windows even though the temperature that evening was fairly comfortable. When Stultz finished, Martin stepped out of the car, pointed a sawed-off shotgun in the attendant's direction, and demanded his money in a loud voice. The passenger then took Stultz's .22-caliber pistol, which Stultz had pulled out to protect himself but had accidently dropped, $75 in cash and a money changer. Stultz testified that during the entire incident, defendant never said a word. After the assailants fled from the scene, Stultz called the police and gave them the license number and a description of the car.
At 4:30 a.m., the police stopped the green Ford which was then being driven by Martin. The only passenger in the vehicle was defendant who was sitting in the front seat. The officers found the coin changer under the driver's seat, the sawed-off shotgun in the glove compartment and the pistol under the passenger's seat. They did not find any weapons or money on defendant.
Testifying in his own behalf, defendant stated that David Martin, a casual friend, came to his house at 7:40 p.m. on the evening of October 29, 1977. They then left the house and took a bus to a poolroom where they had some drinks and played pool. After 40 minutes, they left the poolroom and went to the Alabam Club where defendant was introduced to a man named McGee, a friend of Martin's. An hour and a half later, the three men went to get some Chinese food in a green Ford driven by McGee. Thereafter, the men drove around with no particular destination in mind and stopped only once at a liquor store prior to the time they approached the gas station on Camp Jackson Road. Defendant testified that when they drove slowly near the station without the headlights on he asked McGee why the lights had been turned off. McGee responded by turning the lights back on. Defendant further testified that he did not know anything about a holdup nor did he know that there was a gun in the car until Martin displayed the sawed-off shotgun. After the robbery, defendant asked Martin why he had held up the attendant and asked to be let out of the car at the Ebony Club. McGee then drove to a housing project in East St. Louis where he departed. Martin took the car keys and drove toward the club. Shortly thereafter, Martin and defendant were stopped and arrested.
On cross-examination, defendant testified that he did not remember locking the car doors or rolling up the windows. Furthermore, he did not recall driving around without car lights until his memory was refreshed by the testimony of the complaining witness.
1, 2 Defendant first argues that he was not proved guilty of armed robbery beyond a reasonable doubt. Under subsection (c) of section 5-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 5-2(c)) an individual is legally accountable for the conduct of another when:
"Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense."
While mere presence at the scene of the armed robbery or negative acquiescence in the actions of another is insufficient to hold one accountable as a principal to a crime, one may nevertheless be held to aid and abet without actively participating in the overt act. (People v. Nugara, 39 Ill.2d 482, 236 N.E.2d 693 (1968), cert. denied, 393 U.S. 925, 21 L.Ed.2d 261, 89 S.Ct. 257 (1968); People v. Cole, 50 Ill. App.3d 133, 365 N.E.2d 133 (5th Dist. 1977), cert. denied, 435 U.S. 944, 55 L.Ed.2d 541, 98 S.Ct. 1526 (1978).) If the evidence shows that the accused was present at the scene of the crime without disapproving or opposing it, the trier of fact may consider this conduct along with other circumstances in determining whether such person assented to the commission of the criminal activity, lent to its his countenance and approval and thereby aided and abetted the crime. (People v. Nugara.) Furthermore, where the evidence discloses the accused's close affiliation with the perpetrators of the offense and other circumstances showing a common criminal design of the group, the accused may be convicted of such offense without actively assisting in its commission. People v. Cole; People v. Hunter, 42 Ill. App.3d 947, 356 N.E.2d 822 (1st Dist. 1976).
3 In the present case, the evidence was sufficient to sustain the verdict finding defendant guilty of armed robbery beyond a reasonable doubt. The evidence at trial established that defendant was present at the scene of the armed robbery and witnessed, if not actually participated in, the crime's commission. While defendant denied having knowledge of Martin's and McGee's intentions, we believe the circumstances surrounding the events of the evening clearly indicated that defendant was well aware of the planned offense and participated in and assented to the criminal activity. Defendant testified that he was with Martin continuously for 6 hours, and with McGee a couple of hours, prior to the incident; yet he denied hearing any discussion concerning an armed robbery which clearly was coordinated or planned in advance. Defendant continued to profess ignorance of the crime prior to its occurrence but was well aware that McGee slowly circled a filling station without the headlights on at approximately 2 a.m. The implausibility of defendant's story takes on additional significance when defendant rolled up the windows and locked the car doors immediately prior to the holdup and did not express any surprise, as would an innocent bystander, when Martin pulled out a sawed-off shotgun. Furthermore, defendant made no attempt to disapprove of or oppose the robbery and, in fact, continued to stay with Martin for two hours following the act until they were both arrested. While we agree with defendant that accountability requires that the assistance of a person occur prior to or during the criminal act, such assistance can nevertheless be inferred from activities occurring after the offense. People v. Clifford, 38 Ill. App.3d 915, 349 N.E.2d 922 (1st Dist. 1976).
4 We believe the trier of fact had ample reason to reject defendant's account of the incident as his story was highly improbable in light of the surrounding circumstances. In fact, defendant's improbable story is only another factor which may be considered in determining his participation in the events in question. Accordingly, the evidence established that defendant aided and abetted Martin in the armed robbery beyond a reasonable doubt.
The authority cited by defendant in support of his position that he was not accountable for the offense is readily distinguishable from the present case. In both People v. Wright, 43 Ill. App.3d 458, 357 N.E.2d 224 (4th Dist. 1976), and People v. Owens, 32 Ill. App.3d 893, 337 N.E.2d 60 (4th Dist. 1975), cases involving the theft and armed robbery of a filling station, the appellate courts> reversed the respective defendants' convictions as there was little or no evidence that they participated in or were involved with the criminal acts other than their mere presence at the scene of the crime. There was not a sufficient showing of other circumstances indicating common design or involvement in the commission of the offense as in the present case where defendant spent numerous hours with McGee and Martin both prior and subsequent to the offense, suspiciously drove around the gas station, and rolled up the windows and locked the doors in anticipation of the incident. In fact, in Wright there was no showing that the defendant even had knowledge that a crime was being committed.
Defendant next contends that he was denied a fair trial when the State conducted an improper impeachment of defendant during cross-examination. The facts show that the state's attorney, on cross-examination, asked defendant if he had previously been convicted of a felony. Defendant responded that he had been convicted of manslaughter in 1964. Thereafter, the State concluded its case without offering an authenticated copy of the record of conviction.
At the instruction conference, defense counsel stated that he had a motion to make concerning the admission of defendant's ...