Court of Appeals of Missouri, Western District, Third Division
from the Circuit Court of Johnson County The Honorable
William B. Collins, Judge
Before: Alok Ahuja, P.J., and Victor C. Howard and James E.
a bench trial in the Circuit Court of Johnson County,
Appellant Christopher Hendren was convicted of felony murder,
armed criminal action, and burglary in the first degree. On
appeal, Hendren argues that the circuit court erred in
convicting him of felony second-degree murder, and
the associated armed criminal action charge, because the
charging instrument charged him only with
conventional second-degree murder. Hendren further
contends that there was insufficient evidence to prove that
he entered the house of the victim unlawfully, as required to
support his burglary conviction. We affirm.
January 25, 2012, Walter Feldman was found dead in the
bedroom of his home in Centerview. He had died from multiple
gunshot wounds to the head.
investigating the murder, the police searched the cellular
phone of Walter's biological son, Jacob, with Jacob's
consent. The phone's contents included a
photograph of two white males dressed in dark-colored clothes
with hoods up and bandanas covering their faces. The two
males were Jacob and Hendren. Jacob was holding a shotgun or
was not living with his father at the time of Walter's
murder. In November 2011, Jacob moved out of his father's
house and moved in with Jane Terrell and Mandy DeWitt for
approximately one month, because (Jacob claimed) his father
was physically abusive. While staying with Terrell, Jacob
talked about doing violence to his father, but Terrell did
not take him seriously. Even when living away from his
father, Jacob made contact with his father and visited his
father at his house. Jacob visited Walter with at least one
of his friends, Matt Thomas, and was seen at Walter's
house during a social gathering by Walter's employer. At
the time of the homicide, Jacob was living with his
February 28, 2012, Detective David Mayhew interviewed
Hendren. During the interview, Hendren admitted that he
participated in Walter's murder on the night of January
22, 2012. According to Hendren, Jacob told Hendren that he
was going to sneak into his father's house without waking
him up, and steal some marijuana that Jacob could sell.
According to Hendren, Jacob told him that the last time
Walter had caught Jacob stealing marijuana, Walter threatened
that Jacob would pay "in blood." Jacob told Hendren
that he was going to carry something for protection just in
case his father woke up "swinging." Hendren stated
that he did not believe that Jacob intended to carry out his
night of the murder, Jacob and Hendren took five firearms
from Jacob's grandparents' home, loaded them into
Jacob's grandfather's car, and drove to Walter's
home. Prior to entering the home at approximately 11:15 or
11:30 p.m., Jacob and Hendren took a photo of themselves in
an alley behind the house; Jacob was holding one of the guns
taken from Jacob's grandfather's house.
Hendren told Detective Mayhew that he had stayed outside
Walter's house, and that only Jacob had entered. Later,
Hendren admitted that he entered the house with Jacob through
the side door. Both Jacob and Hendren were carrying .22
caliber firearms. Hendren claimed that his gun was not
loaded, and that Jacob had all the shells.
looked into his father's bedroom and told Hendren to
shoot his father. Hendren refused. Hendren stepped to the
side, and Jacob shot his gun. Jacob said that he did not know
if his father was dead, but he was worried that the shots
could be heard from the outside, and he asked Hendren to shut
the outside door. After Hendren shut the door, Jacob grabbed
the other gun from Hendren, loaded it, re-entered the
bedroom, and fired two additional shots.
then went into his father's bedroom and walked out with a
big box that had marijuana in it. Before leaving, Jacob went
back into the bedroom, fired a fourth shot, and picked up the
shell casings. He told Hendren not to tell anybody what had
happened. Afterwards, Jacob and Hendren returned to
Jacob's grandfather's house, where they put the guns
away. Hendren spent the rest of the weekend with Jacob.
his interview with Detective Mayhew, Hendren also completed
the following written statement as to what transpired on
January 22, 2012:
Around 10:30 Jake decided he was gonna kill his dad. I
didn't know what to do. So I helped him put the guns away
in the car. He told me he had been waiting for this for a
long time. I went with him. We parked the car by his
dad's house. He shut it off, and he told me to grab a
gun. I grabbed a gun and followed him in. Repeatedly he asked
me to do it. I couldn't, I was scared, and I didn't
want to get any more involved. I didn't even want to go
to begin with. I stood by the fridge. He fired off a shot.
Then told me to shut the "entrance" door. I did
then walked back to the fridge. He asked for the other gun, I
gave it to him, he walked around the corner and I heard him
load it and fire again. I heard him unload and shoot again.
Then he walked in and grabbed something out of the room, it
was a shoebox for boots, he said it had his dad's stash
in it. He picked up the shells and put them in his pocket.
Then we left and went back to his grandparent's house and
put the guns back. We went upstairs. He started going through
the box. I was setting on the bed. I was afraid if I ever
said anything to any one, that he would kill me. I played it
cool like I was there for him. I didn't sleep that night,
I thought he might have thought I was going to tell someone,
and possibly shot me in my sleep. I stayed another day at his
house so he would trust me, and not try to hurt me at all. Up
until tonight, I have not told anyone about this incident,
and I was hoping that I could find a way to slowly lose
contact with Jake for good.
Hendren was sixteen years old at the time of the alleged
offenses, an order was entered by the juvenile division
allowing Hendren to be prosecuted under general law.
was charged, acting alone or in concert with another, with:
conventional second-degree murder for knowingly causing the
death of Walter Hayes Feldman by shooting him, in violation
of § 565.021.1(1) (Count I); an associated count of armed
criminal action (Count II); and burglary in the first-degree,
for knowingly entering Feldman's home unlawfully
"for the purpose of committing murder therein, and in
effecting entry [Hendren] was armed with a deadly
weapon" (Count III).
waived his right to a jury trial, and was tried to the court.
After the close of the evidence and closing arguments, the
trial court overruled Hendren's motion for judgment of
acquittal, and found as follows:
The Court has reviewed the evidence that was presented here
at trial in this case. It also looked at the second degree
murder statute which is what we were operating under in this
case that was amended by the State of Missouri under 565.021
with regards to murder in the second degree.
. . .
The second-degree murder statute has several provisions,
several provisions with regards to knowingly caused death,
but also it has an attendant section which the Court is
required to consider with regard to during the perpetration
of any felony that a death caused by the participants in the
crime requires a finding of guilty on murder in the second
degree because of the fact that there was a felony committed
as part of that statute.
defense counsel asked for clarification, the court explained:
Under 569.170 if there is a crime committed, a felony
committed, where the person who is not a participant in the
crime is in the inhabitable structure, that makes it a first
degree burglary, and then that is where the second degree
comes in. I think it's Section 2 of 565.021, Subsection
2, with regard to the commission of a felony in which there
is a death and that creates the felony murder.
response to defense counsel's queries, the trial court
stated that it was finding Hendren not guilty of conventional
trial court found Hendren guilty of armed criminal action for
committing felony murder while possessing a weapon, and
burglary in the first-degree for entering Walter
Feldman's home for the purpose of committing a felony
therein while a person who was not a participant in the crime
was present in the residence.The court sentenced Hendren to 15
years' imprisonment on each count, with the sentences for
murder and armed criminal action to run concurrently, and the
sentence for burglary to run consecutively to the other two
sentences. This appeal follows.
first Point, Hendren contends that the trial court erred in
finding him guilty of the uncharged offense of
felony second-degree murder, because he was charged
with conventional second-degree murder. We find no
565.021 defines the offense of second-degree murder,
including both "conventional" and