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State v. Harding

Court of Appeals of Missouri, Eastern District, First Division

April 25, 2017

RICKY J. HARDING, JR., Appellant.

         Appeal from the Circuit Court of Warren County 14AU-CR00373-02 Honorable Keith M. Sutherland

          Lisa P. Page, Judge

         Ricky Harding appeals his conviction after a jury trial for felony murder, unlawful possession of a firearm, domestic assault in the second degree, and four counts of endangering the welfare of a child in the second degree. We affirm in part and reverse and remand in part.


         In 2014, twelve-year-old A.L. ("Daughter") and nine-year-old Am.L. ("Son") lived with their mother ("Mother" or "Victim"), step-father ("Defendant") and two younger siblings[2] near Mexico, Missouri. Mother and Defendant argued almost every day, and the children were told to stay in their rooms during these altercations. One day, Defendant showed Son his 1911 Colt .45 pistol that he acquired "off the street." Defendant, a prior felony offender, knew it was illegal for him to possess a firearm.

         In the early morning hours of May 25, 2014, Daughter awoke to the sound of an argument between her Mother and Defendant. She peeked out of her bedroom into the living room, saw Defendant screaming at her Mother, and saw her Mother crying. Daughter listened to the argument, and when she later peeked out again, she saw her Mother grab Defendant's gun from between the couch cushions. Defendant stood and moved for the gun. Daughter saw her Mother hunch over, hiding the gun between her legs, with Defendant behind her Mother struggling for control of the weapon. Daughter hid behind her door, and then heard a shot.

         Daughter ran into the living room and saw her Mother lying on the floor, bleeding profusely. Son and the two younger siblings, now awake, also rushed into the room. Their Mother began scooting toward the garage door, and Daughter called 911. Daughter began helping her Mother inch toward the truck in the garage to get her to the hospital. However, Defendant drove off alone, leaving all four children with their dying Mother. Daughter led her siblings into Son's room, where they awaited the arrival of the police.

         Paramedics arrived and transported Mother to the hospital. Having lost too much blood to be resuscitated, Mother died. Defendant arrived, agitated and argumentative, at the hospital sometime thereafter. He was arrested outside the emergency room, and was charged with second degree felony murder, unlawful possession of a firearm, domestic assault in the second degree, armed criminal action, and four counts of endangering the welfare of a child in the first degree.

         After this incident, the children began seeing Timothy Taylor, a licensed professional counselor, who diagnosed the children with multiple psychological conditions, including post-traumatic stress disorder. The children told their counselor they were fearful of Defendant.

         After a five-day trial, the jury considered the State's charges against Defendant, as well as instructions for voluntary and involuntary manslaughter and endangering the welfare of a child in the second degree. The jury found Defendant guilty of felony murder, unlawful possession of a firearm, domestic assault in the second degree and four counts of endangerment in the second degree. He received a total of 30 years of imprisonment. This appeal follows.


         Defendant submits seven points on appeal, contending: (I) insufficient evidence existed to support the felony-murder charge because Victim was not killed as a result of Defendant being a felon-in-possession; (II) the felony-murder jury instruction improperly relieved the State from proving a contested element of the offense; (III) insufficient evidence existed to support the four counts of child endangerment because Defendant did not fire a gun near the children, nor had he negligently left the children alone; (IV) a continuance should have been granted so that Defendant could prepare and call an untimely-disclosed witness; (V) the court erroneously excluded evidence concerning the older three children's previous exposure to domestic violence perpetrated by their father; (VI) Defendant's proposed jury instruction for a necessity defense should have been granted; and (VII) the written judgment contains an error needing correction.

         Point I-Felon-in-Possession Conviction Sufficient as Underlying Felony for Felony Murder

         In his first point on appeal, Defendant contends the trial court erred in overruling his motion for judgment of acquittal at the close of all evidence and entering judgment for the class A felony of second degree felony murder. Specifically, Defendant argues the evidence was insufficient to establish that Victim's death was caused as a result of him being a felon in possession of a firearm. Thus, Defendant asserts the court violated his right to due process as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 10 of the Missouri Constitution. Absent this alleged error, Defendant maintains he would not have been convicted of felony murder, and therefore his conviction on this count must be reversed. We disagree.

         Standard of Review

         Our review is limited to determining whether sufficient evidence exists from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. State v. Burrage, 465 S.W.3d 77, 79 (Mo. App. E.D. 2015). "[T]he relevant question is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Bateman, 318 S.W.3d 681, 687 (Mo. banc 2010).


         "A person commits the offense of murder in the second degree [felony murder] if he or she . . . commits or attempts to commit any felony, and, in the perpetration or the attempted perpetration of such felony . . . another person is killed as a result of the perpetration or attempted perpetration of such felony . . . ." Section 565.021.1(2) (emphasis added).[3] "[T]he practical effect of the felony-murder rule [is that it] permits the felonious intent necessary to a murder conviction to be shown by the perpetration of or attempt to perpetrate a felony." State v. Rumble, 680 S.W.2d 939, 942 (Mo. banc 1984).

         "The plain and ordinary meaning of 'any' [as used in Section 565.021] indicates our legislature intended that every felony could serve as an underlying felony for the purpose of charging a defendant with second degree felony murder . . . [n]owhere does the statute limit the felony to be used in charging under this statute to any particular type of or specific felony, i.e., inherently dangerous, as some other states have done." State v. Bouser, 17 S.W.3d 130, 139 (Mo. App. W.D. 1999).[4]

         Here, Defendant was charged with felony murder in connection with the commission of the class D felony of unlawful possession of a firearm, in violation of Section 571.070.1(1) ("A person commits the offense of unlawful possession of a firearm if such person knowingly has any firearm in his or her possession and . . . [s]uch person has been convicted of a felony under the laws of this state . . ."). It is undisputed Defendant was a felon at the time of Victim's death, in that Defendant was previously convicted of the class C felony of burglary in the second degree approximately twenty years ago. Additionally, it is not disputed that Defendant illegally obtained and possessed a 1911 Colt .45 Pistol-prohibited by said burglary conviction-through the events of the night in question. Thus, based on the plain language of Section 565.021.1(2), it is clear an unlawful-possession felony may potentially serve as the underlying felony for a felony-murder charge. See Bouser, 17 S.W.3d at 139.

         However, we must also apply a "foreseeability-proximate cause" concept to the underlying felony when determining a person's responsibility for a felony-murder killing. Burrage, 465 S.W.3d at 80. "[A] defendant may be responsible for any deaths that are the natural and proximate result of the crime unless there is an intervening cause of that death." Id. To test causation, Missouri courts will often look at the underlying felony, generally, as well as at the facts of the particular case. See, e.g., State v. Blunt, 863 S.W.2d 370, 371-72 (Mo. App. E.D. 1993) ("Victim's death was the natural and proximate result of acts committed by [d]efendant's accomplice, [and] it is foreseeable a death could result [from participating in] an illegal drug deal."). A death is foreseeable if the underlying felony and killing were a part of a continuous transaction, "closely connected in time, place and causal relation." State v. Manuel, 443 S.W.3d 669, 677 (Mo. App. W.D. 2014) (quoting State v. Adams, 98 S.W.2d 632, 637 (Mo. 1936)). It is inconsequential that a defendant's conduct was not the immediate cause of death, but is sufficient if the conduct "was a contributing [proximate] cause of death." See State v. Scroggs, WD 70068, 2017 WL 1229924, at *5 (Mo. App. W. Dist. Apr. 4, 2017) (citing State v. Stallman, 289 S.W.3d776, 779 (Mo. App. E.D. 2009)).

         In Burrage, the defendant drove to the location of the drug sale while his cousin (the shooter) positioned himself in the back seat. 465 S.W.3d at 78. Upon arrival at the sale point, the defendant noticed the buyers were carrying firearms. Id. The buyers surrounded defendant's car, and soon thereafter exhibited their guns. Id. The defendant's cousin shot and killed one of the buyers, and defendant sped away. Id. at 78-79. In upholding the defendant's conviction of felony murder, this court reasoned defendant's behavior indicated he knew the drug sale was likely to "go wrong." Id. at 81. Insomuch as "[d]eath is a foreseeable part of an illegal drug transaction, " a reasonable juror could find there was a sufficient nexus between the underlying crime-attempting to sell drugs-and the buyer's death. Id. at 81; see also State v. Glover, 50 S.W.2d 1049, 1056 (Mo. 1932) (upholding defendant's conviction for arson and felony murder because "the death of the fireman was the direct consequence of the intended arson" and defendant demonstrated more than mere negligence in "deliberately set fire to [the building]").

         Whether a person's death can be a natural and proximate cause of a violation of the felon-in-possession law in order to support a charge of felony murder appears to be a matter of first impression in Missouri. Although not controlling, several other states have confronted this issue.

         For instance, Defendant relies heavily on State v. Anderson, 666 N.W.2d 696 (Minn. 2003). In Anderson, the Minnesota Supreme Court reversed the defendant's felony-murder conviction predicated on the state's felon-in-possession law, holding "nothing about a felon's possession of a firearm, or of a stolen firearm-in the abstract-that in and of itself involves a special danger to human life." Id. at 701. Minnesota's felony-murder doctrine entails a two-part analysis: (1) the inherent dangerousness of the offense; and (2) the danger of the offense as committed. Id. at 701 n.6.[5]

         However, the Supreme Court of Georgia has held that although the "the possession of a firearm by a previously convicted felon, is not inherently dangerous[, ]" circumstances may well exist under which felon-in-possession may be sufficient to sustain a felony-murder conviction. Ford v. State, 423 S.E.2d 255, 256 (Ga. 1992). In Ford, as the defendant-a prior felon- attempted to unload a firearm while in his apartment, the weapon discharged, sending a bullet through the floor into the apartment below, where it struck and killed the victim. Id. at 255. The defendant was charged with felony-murder predicated on a violation of the Georgia's felon-in-possession law, because, like Missouri, Georgia's felony-murder statute did not restrict which felonies could underlie a felony-murder charge. Id. at 256. After defendant's conviction by a jury, the Georgia Supreme Court reversed, finding the felony of felon-in-possession was not "dangerous per se, " nor were the "attendant circumstances" in this matter sufficient to create "a foreseeable risk of death." Id. (internal quotations omitted).[6]

         More recently, Georgia has upheld convictions for felony murder predicated on the state's felon-in-possession law. In Hines v. State, 578 S.E.2d 868 (Ga. 2003), the defendant-a former felon-spent the day consuming large amounts of alcohol while concurrently hunting turkey with his friends. Id. at 872. Late in the day, the defendant shot a fellow-hunter when the defendant "took an unsafe shot at dusk, through heavy foliage, at a target eighty feet away that he had not positively identified as a turkey[.]" Id. In Hines, unlike Ford, the Georgia Supreme Court upheld the defendant's conviction of felony murder predicated on its felon-in-possession law, because "[u]nder the circumstances . . . [the defendant's] illegal possession of a firearm created a foreseeable risk of death." Id.[7]

         Similar to Georgia, Missouri's felony-murder law applies to all felonies, and also allows for the circumstances of the case to guide whether the death is the "natural and proximate result of the commission of the [underlying felony]." Scroggs, 2017 WL 1229924 at *6 (death of a newborn infant is the natural and foreseeable consequence of failing to provide medical care where the mother knows that she consumed methamphetamines during pregnancy and immediately before birth.). Thus, Missouri's felon-in-possession law is sufficient to charge a defendant with felony-murder, but the underlying facts dictate whether Missouri's felon-in-possession law is sufficient to convict a defendant of felony-murder.

         Under Missouri law, the clear legislative intent restricts our courts from considering the inherent dangerousness (or lack thereof) of the underlying felony. Compare Section 565.021, RSMo Cum. Sup. 2014 (prescribing "any felony") with Sections 559.005 and Section 559.007, RSMo 1969 (enumerating only those felonies sufficient for unintentional felony murder). Thus, we may only review the underlying circumstances to determine whether the murder was foreseeable and a proximate cause of the underlying felony. See Blunt, 863 S.W.2d at 371-72.

         In this case, we hold a rational juror could have found Defendant's unlawful possession of the firearm to be a foreseeably proximate cause of Victim's death, as the facts of this case indicate a causal link between Defendant's possession and Victim's death. Defendant purchased the stolen gun "off the street" and kept it loaded in a couch cushion where anyone could access it, including the young children residing in the home. Defendant was aware he was barred from possessing the pistol, yet knowingly introduced the firearm into the home where he and Victim were prone to frequent domestic disputes. On the night of Victim's death, Defendant left the firearm tucked between two couch cushions, for anyone-including Defendant-to easily access. Victim and Defendant engaged in a lengthy verbal altercation, culminating in a physical fight for control of the pistol. Victim ended up hunched over the gun, hiding it between her legs. The weapon discharged, and the bullet injured Victim's femoral artery, ultimately causing her death. It is the fault of Defendant that this weapon became a part of the altercation that resulted in Victim's death-i.e., his felony-possession was closely connected in time, place and causal relation to her death-and therefore completely foreseeable that such an incident would occur. Burrage, 465 S.W.3d at 80; see also Scroggs, 2017 WL 1229924 at *5.

         Therefore, the trial court did not err in entering judgment for the felony-murder charge predicated on the felony of unlawful possession of a weapon.

         Point I is denied.

         Point II-Felony-Murder Instructional Error Did Not Result in Manifest Injustice

         In his second point on appeal, Defendant contends the trial court plainly erred in submitting Instruction 6, the verdict director for the felony-murder count. Specifically, Defendant argues the instruction failed to inform the jury that, to find him guilty of felony murder, the jury must find the Victim "was killed as a result of the perpetration of an unlawful possession of a firearm, " instead informing them they must find Victim "was killed by the perpetration of that unlawful possession of a firearm." (emphasis added). Defendant contends this Instruction did not conform to the Missouri Approved Instructions, and further relieved the State of proving a contested element of the offense, thereby violating his right to due process, to a properly instructed jury, and to a fair trial, as guaranteed under the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, Sections 10 and 18(a) of the Missouri Constitution. Defendant maintains this error resulted in a manifest injustice, and therefore reversal and remand for new trial on the felony-murder charge is necessary.

         Standard of Review

         The failure to give an instruction in accordance with MAI-CR is error, the prejudicial effect of which must be judicially determined. Rule 28.02(f); State v. Cooper, 215 S.W.3d 123, 125 (Mo. banc 2007). Without a specific objection during trial and corresponding issue in a motion for new trial, this court may only review for plain error pursuant to Rule 30.20. Cooper, 215 S.W.3d at 125. Instructional error rises to the level of plain error only if the instruction "so misdirected or so failed to adequately instruct the jury that it is apparent to the appellate court that the error affected the jury's verdict and caused manifest injustice or a miscarriage of justice." State v. Chambers, 998 S.W.2d 85, 89 (Mo. App. W.D. 1999).


         As submitted to the jury, Instruction 6 ...

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