Court of Appeals of Missouri, Eastern District, First Division
from the Circuit Court of Warren County 14AU-CR00373-02
Honorable Keith M. Sutherland
P. Page, Judge
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.
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 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
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.
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.
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.
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.
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.
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.
I-Felon-in-Possession Conviction Sufficient as Underlying
Felony for Felony Murder
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.
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
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). "[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
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).
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.
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)).
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
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.
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
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).
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."
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.
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.
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.
the trial court did not err in entering judgment for the
felony-murder charge predicated on the felony of unlawful
possession of a weapon.
II-Felony-Murder Instructional Error Did Not Result in
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.
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.
submitted to the jury, Instruction 6 ...