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State v. Shaw

Court of Appeals of Missouri, Western District, First Division

December 26, 2017

TRAVONE SHAW, Appellant.

         Appeal from the Circuit Court of Jackson County, Missouri The Honorable Joel P. Fahnestock, Judge

          Before Cynthia L. Martin, Presiding Judge, James E. Welsh, Judge and Karen King Mitchell, Judge

          Cynthia L. Martin, Judge.

         Travone Shaw ("Shaw") appeals his convictions of felony stealing and an associated count of armed criminal action, and of involuntary manslaughter in the first degree and an associated count of armed criminal action. Shaw asserts that the trial court erred: (1) in entering judgment convicting Shaw of felony stealing and an associated count of armed criminal action because, pursuant to State v. Bazell, 497 S.W.3d 263 (Mo. banc 2016), Shaw could only have been convicted of misdemeanor stealing; (2) in entering judgment convicting Shaw of involuntary manslaughter in the first degree and an associated count of armed criminal action based on an accomplice theory because there was insufficient evidence to support the convictions; and (3) in using a verdict director that instructed the jury that it should find Shaw guilty of involuntary manslaughter in the first degree if it found that Shaw "acted together with or aided" another in committing the offense. We vacate Shaw's convictions and sentences for felony stealing and the associated armed criminal action count. We remand with instructions to enter a judgment of conviction for the class A misdemeanor of stealing and for resentencing within the authorized range. We affirm the trial court's judgment in all other respects.

         Factual and Procedural Background[1]

On October 29, 2014, Dionte Greene ("Greene") contacted Shaw through Facebook in an effort to set up a sexual encounter. Shaw used the name "Tra Da Gunner." Shaw and Greene continued communicating over Facebook into the early morning hours of October 30, 2014. While the exchange between Shaw and Greene began as conversational, Shaw eventually told Greene, "Stop inboxing me. You ain't trying to get robbed tonight." Just after 1:00 a.m., Greene gave Shaw his cell phone number. Telephone records show that Shaw's number called Greene's number shortly thereafter. Shaw and Greene resumed their conversation later that afternoon. The two discussed meeting to have a sexual encounter, and Shaw told Greene that he wanted marijuana. The two arranged to meet. Shaw later deleted the Facebook messages he exchanged with Greene.

         Greene told his friend, James Dilworth ("Dilworth"), that he was going to meet with two men to "have sex." Greene and Dilworth texted each other and talked on the phone as Greene traveled to the meeting. When Greene arrived at the address he had been given, he first told Dilworth he did not see anyone, but then indicated that he saw two men. The two men were Shaw and Antonio Golston ("Golston"). Greene talked to the two men while he was on the phone with Dilworth. The men walked away, and Greene told Dilworth, "He looks cute just like his Facebook picture." The two men then returned to Greene's car and discussed marijuana. Dilworth heard Greene tell the men that if they gave him the money, he would buy marijuana for them.

         Greene and the two men drove to a nearby gas station. Surveillance video footage from the gas station showed that Greene was the driver of a gold sedan, and that Shaw was in the front passenger seat. Shaw exited the car and entered the gas station. Shaw unsuccessfully attempted to withdraw money from an ATM. Shaw returned to Greene's vehicle, and the car drove away from the gas station to 6901 Bellefontaine, a known drug house.

         At approximately 1:00 a.m. on October 31, 2014, two police officers in the neighborhood heard gunshots. The officers drove around the neighborhood, and observed a gold sedan parked at 6901 Bellefontaine. The vehicle's lights were on, and its engine was running. The officers parked their vehicle a block away and watched the vehicle to determine whether the vehicle was involved in any drug activity. After thirty minutes of seeing no activity, the officers discontinued surveillance of the vehicle and left the area.

         The same officers received a call at approximately 4:30 a.m. about "a suspicious car and occupant" at 6901 Bellefontaine. The officers returned to the location and found the same gold sedan with its lights still on and engine still running. The car's windows were covered with moisture. The officers approached the gold sedan. Greene was sitting in the driver's seat, slumped over the center console, deceased.

         Greene's hand was across his lap on top of a bag of potato chips. Greene's other hand was on top of the center console, where Greene's wallet was found. The car's glove box was open. A crime scene technician found a shell casing on the right rear floorboard. An inactive cell phone belonging to Greene was found in the vehicle. An investigation revealed that Greene had an active cell phone that was never recovered. Latent prints lifted from the vehicle's exterior right front window belonged to Shaw.

         An autopsy revealed that the cause of Greene's death was an injury to his brain from a gunshot wound to the head. The bullet entered into to the right of Greene's right eye, and traveled through the lower portion of Greene's brain, cutting Greene's brain stem in half before coming to rest in the right occipital lobe. Stippling on Greene's skin indicated that the gun was one to three feet away from Greene's head at the time it was fired.

         In late October 2014, Shaw began speaking with Sha're Martin ("Martin") on Facebook. Martin gave Shaw her phone number, and the two spoke with one another using Facebook, text messages, and phone calls. Shaw used the "Tra Da Gunna" pseudonym when communicating with Martin on Facebook. Sometime after October 31, 2014, Shaw told Martin that he was afraid of being "locked up for twenty-five." Shaw told Martin that he was afraid that he was going to go to prison for something he did not do.

         Police obtained cell phone data from Shaw's account, Golston's account, and Greene's account. That data indicated that all three men had communicated with one another via cell phone. The phone data also indicated that, shortly before the time of the homicide, all three phones used the same cell tower and sector.

         In early November 2014, police arrested Golston. Once Golston was in custody, the police questioned him, and Golston "denied everything." Instead, Golston told the police "to look at Tra, his cousin Tra." The police identified "Tra" as Shaw. The police released Golston from custody on November 6, 2014, but continued to conduct surveillance on him. They followed Golston to a residence on East 70th Street in Kansas City. The police entered the home and located Shaw inside. The police arrested Shaw on November 6, 2014. Shaw was wearing the same shoes as those he wore on the date of Greene's murder, as evidenced by the gas station surveillance video.

         Shaw denied any involvement in Greene's death. Shaw denied knowing Greene. The police showed Shaw phone records that reflected a call from his phone to Greene's phone. Shaw said that the number was not his and that someone else had used his name. Shaw explained that he had been robbed three weeks earlier, so he did not have a phone. Shaw was released from custody.

         Police questioned Shaw again on May 22, 2015. Shaw initially denied knowing Greene, but when confronted with evidence that connected him with Greene, told the police he had no knowledge about Greene's homicide. Shaw first said that he received a ride to the gas station and walked back to his grandmother's house. When confronted with a screenshot from the gas station surveillance video showing him getting into the gold sedan, Shaw explained that the vehicle "turned left and they dropped him off at home before [Golston] and [Greene] were going to get some weed."

         The officer conducting the interview told Shaw that a couple minutes after Shaw was seen in the gold sedan, Greene was dead. The officer told Shaw that the police knew he had been there at the scene. Shaw then told the police that "Golston was going to rob [Greene]" and that "he went along with it." Shaw said that Golston told him that there was going to be a robbery but that he did not know that Golston was going to shoot Greene. Shaw claimed that Golston had used Shaw's phone and Facebook account to communicate with Greene. Shaw said that it was "stupid" to give Greene an address to meet that was next door to where he and Golston were staying. Shaw told the police that he was sitting in the front passenger seat of Greene's car and that Golston was seated in the back passenger seat. Shaw claimed that he exited Greene's vehicle once they arrived at 6901 Bellefontaine, and that a struggle over the gun then took place between Golston and Greene. Shaw told the police he left the scene after the shooting.

         The State charged Shaw with murder in the second degree in violation of section 565.021, robbery in the first degree in violation of section 569.020, and two associated counts of armed criminal action in violation of section 571.015.[2] At trial, Shaw testified on his own behalf and provided yet another account of the events leading up to Greene's death. Shaw testified that when Greene initially contacted him via Facebook, he believed that Greene was trying to set him up. Shaw explained that he had been robbed three weeks earlier and that he was "a little paranoid or a little scared." Shaw testified that he told Greene, "Stop inboxing me. You ain't trying to get robbed tonight, " in an effort to protect himself and not because he was planning to rob Greene. Shaw testified that, when the two later had a conversation about marijuana, he gave Greene Golston's phone number.

         Shaw testified that he did not plan a robbery with Golston and did not know what Golston was trying to accomplish on the night of Greene's death. Shaw testified that he did not know that Golston and Greene had been communicating with each other on October 30, 2014. Shaw testified that he went with Golston and Greene that day to "get some marijuana" but that Greene did not have a "weed man" so the trio went in search of one. Shaw testified that after the three went to the gas station, they went to 6901 Bellefontaine to buy marijuana. Shaw testified that he stepped out of the vehicle to walk to the house, and as he was walking toward the house, he looked back, saw a struggle between Golston and Greene, and heard a gunshot. Shaw testified that he ran away at that point. Shaw explained that he previously told the police that he knew Golston planned to rob Greene because "that's what they wanted to hear."

         The jury found Shaw guilty of the lesser included offense of felony stealing and recommended five years imprisonment; of the lesser included offense of involuntary manslaughter and recommended seven years imprisonment; and of two associated counts of armed criminal action and recommended seventeen years imprisonment for each count. The trial court entered a judgment of conviction and sentenced Shaw in accordance with the jury's recommendations, and ordered each sentence to run concurrently with the others.

         Shaw ...

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