Court of Appeals of Missouri, Western District, Second Division
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.
H. Newton, Presiding Judge
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.
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:
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.
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.
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. 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.
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
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.
571.015.1 defines ...