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State v. Johnson

Court of Appeals of Missouri, Western District, Second Division

May 2, 2017

STATE OF MISSOURI, Respondent,
v.
DALVIN D. JOHNSON, Appellant.

         Appeal from the Circuit Court of Jackson County, Missouri Honorable Wesley Brent Powell, Judge

          Before: Thomas H. Newton, P.J., James Edward Welsh, and Karen King Mitchell, JJ.

          Thomas H. Newton, Presiding Judge

         Mr. Dalvin Johnson appeals from a judgment convicting him of second-degree felony murder, § 565.021, first-degree attempted robbery, §§ 564.011 and 569.020, and two counts of armed criminal action, §571.015. Mr. Johnson asserts that the trial court erred in failing to dismiss one count of armed criminal action related to the attempted robbery charge because an armed criminal action conviction cannot be predicated on an attempted offense. He also argues that the trial court failed to accurately memorialize the verdict on Count III, attempted first-degree robbery. We affirm in part and reverse in part.

         Mr. Dalvin Johnson was charged in an information with second-degree felony murder (Count I), armed criminal action with felony murder as the underlying offense (Count II), first-degree robbery (Count III), and armed criminal action with first-degree robbery as the underlying offense (Count IV). Viewed in the light most favorable to the verdict, the following evidence was adduced at trial:

         Mr. Johnson discussed robbing Mr. Joseph Jones with Ms. Shyanne Smith and Mr. Adrian Botello. Ms. Smith had previously dated Mr. Jones and suggested him as a potential robbery target. Under the group's plan, Ms. Smith's brother, Mr. Dakota Smith, would go to Mr. Jones's house and tell him that Ms. Smith was waiting for him at a nearby gas station. Mr. Johnson and Mr. Botello would then wait in an abandoned house to rob Mr. Jones as he passed by. Mr. Johnson was armed with a handgun that he carried in the waistband of his pants, while Mr. Botello was armed with a BB gun.

         Mr. Smith convinced Mr. Jones to join him at the gas station, while Mr. Johnson and Mr. Botello followed at a distance. Eventually, Mr. Johnson got in front of Mr. Jones while Mr. Botello stood to the side. Mr. Johnson pointed the handgun at Mr. Jones, and Mr. Botello told him to empty his pockets. Mr. Jones rushed toward Mr. Botello, and Mr. Johnson shot Mr. Jones in the neck, severing his cervical spine. As the others ran, Mr. Johnson searched Mr. Jones's pockets. A responding police officer found Mr. Jones lying in the middle of the street. Mr. Jones's pulse stopped as the officer was checking it. At the scene, police recovered a cell phone, the BB gun, and keys dropped by Mr. Botello.

         Police later linked the Smiths and Mr. Botello to the shooting. They were questioned and eventually implicated Mr. Johnson. Police obtained surveillance footage showing Mr. Smith, Ms. Smith, Mr. Botello, and Mr. Johnson walking down the street before the shooting.[1] Police issued a pick-up order for Mr. Johnson in connection with Mr. Jones's murder. Ultimately, a patrol officer caught Mr. Johnson hiding in a shed following a reckless-driving pursuit during which Mr. Johnson lost control of the car and ran.

         Mr. Johnson did not testify or present any evidence at trial. The jury was instructed on the charged offenses and the lesser-included offenses. The jury was also instructed on armed criminal action in connection with each offense. The jury convicted Mr. Johnson of second-degree felony murder, § 565.021, attempted first-degree robbery, §§ 564.011 and 569.020, and two counts of armed criminal action, § 571.015. The jury returned a verdict in the punishment phase of trial of thirty years' imprisonment for second-degree murder, ten years on the charge of armed criminal action associated with the murder count, fifteen years for attempted robbery, and five years for the charge of armed criminal action associated with the attempted robbery count. The court imposed the jury's recommended sentences and ordered that they be served concurrently. This appeal follows.

         Legal Analysis

         In the first point, Mr. Johnson argues that the trial court erred when it failed to dismiss Count IV based on the failure of the information to state an offense. Mr. Johnson asserts that, because armed criminal action cannot be predicated on an attempted offense, his conviction cannot stand because it was predicated on attempted first-degree robbery. "[W]hether an information fails to state an offense is a question of law, which we review de novo." State v. Metzinger, 456 S.W.3d 84, 89 (Mo. App. E.D. 2015); see also State v. Rousseau, 34 S.W.3d 254, 259 (Mo. App. W.D. 2000). In the second point, Mr. Johnson argues that the trial court erred in overruling his motions for acquittal and entering a judgment of conviction on Count IV because armed criminal action cannot be predicated on an attempted offense and this charge was predicated on attempted first-degree robbery. Mr. Johnson fashioned his claim in Point II as one of sufficiency of evidence; this claim, however, is based entirely on statutory interpretation. Therefore, the second point involves a question of law that this Court reviews de novo. State v. Meyers, 333 S.W.3d 39, 46-47 (Mo. App. W.D. 2010). In the third point, Mr. Johnson argues that the trial court plainly erred in submitting Instruction Number 11 because armed criminal action cannot be predicated on an attempted offense and it is error for a court to give an instruction that contains conduct not prohibited by statute. Because these points address the same underlying issue, whether a charge and conviction of armed criminal action can be predicated on an attempted offense, we will address these points together.

When the issue of an insufficient indictment is raised for the first time after verdict, the indictment "will be deemed insufficient only if it is so defective that (1) it does not by any reasonable construction charge the offense of which the defendant was convicted or (2) the substantial rights of the defendant to prepare a defense and plead former jeopardy in the event of acquittal are prejudiced." State v. Parkhurst. 845 S.W.2d 31, 35 (Mo. banc 1992). In either case, a defendant will not be entitled to relief unless the defendant can demonstrate "actual prejudice." Id. "A defendant suffers actual prejudice if the information or indictment was either so deficient that the defendant was not placed on notice as to what crime he or she was being charged with or was so lacking in clarity that the defendant was unable properly to prepare a defense." State v. Williams, 126 S.W.3d 377, 381 (Mo. banc 2004).

State v. Flores, 437 S.W.3d 779, 796 (Mo. App. W.D. 2014).

         Section 571.015.1[2] defines ...


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