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State v. Hendren

Court of Appeals of Missouri, Western District, Third Division

March 21, 2017


         Appeal 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. Welsh, JJ.

          Alok Ahuja, Judge

         Following 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.

         Factual Background

         On 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.

         In investigating the murder, the police searched the cellular phone of Walter's biological son, Jacob, with Jacob's consent.[1] 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 rifle.

         Jacob 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 grandparents.

         On 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 plan.

         On the 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.

         Initially, 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.

         Jacob 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.

         Jacob 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.

         During 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.

         Although 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.

         Hendren was charged, acting alone or in concert with another, with: conventional second-degree murder[2] for knowingly causing the death of Walter Hayes Feldman by shooting him, in violation of § 565.021.1(1)[3] (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).

         Hendren 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.

         After 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.

         In response to defense counsel's queries, the trial court stated that it was finding Hendren not guilty of conventional second-degree murder.

         The 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.[4]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.



         In his 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 error.

         Section 565.021 defines the offense of second-degree murder, including both "conventional" and "felony" ...

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