Court of Appeals of Missouri, Western District, Second Division
from the Circuit Court of Jackson County The Honorable Joel
P. Fahnestock, Judge
James E. Welsh, P. J.,  and Alok Ahuja and Anthony Rex Gabbert,
a jury trial in the Circuit Court of Jackson County,
Appellant Billy Conaway was convicted of kidnapping,
endangering the welfare of a child, and resisting arrest.
Conaway appeals. He argues that he is entitled to a new trial
because the State improperly asked prospective jurors during
voir dire to make a commitment to find Conaway guilty if
certain conditions were met. He also argues that his
conviction for kidnapping must be reversed, because there was
insufficient evidence to prove that he confined his victim
"for a substantial period, " as required by
§565.110.1. We affirm.
has a biological son (the "Victim"), who was twelve
years old in May 2015. At the time, Conaway no longer had
legal custody of the Victim, and the Victim had not seen
Conaway "in a few years." The Victim was in the
care of Conaway's former girlfriend, Tammy Clavelle.
16, 2015, at approximately 8:00 a.m., Conaway awoke the
Victim at Clavelle's home, and told him to get up because
they were going to church. Clavelle objected to Conaway
taking the Victim and, after they left the house, she called
9-1-1 and followed Conaway and the Victim in her truck.
Terrence Brown and Jeremy Buske were dispatched to respond to
the scene. When they arrived, they encountered Clavelle. She
pointed to Conaway and the Victim, who were walking in a
nearby parking lot. She explained to the officers that she
was the Victim's custodian, and that he had been taken by
his father, who was not supposed to have the child.
officers called out to Conaway to stop. Instead of stopping,
Conaway "picked up the pace, like a fast walk, actually
leaving [the Victim] walking away." As the officers
continued to demand that Conaway stop, he continued walking
away, and called the Victim "to come to him." The
Victim appeared confused, because the officers were calling
him to come to them, while Conaway was calling him in the
opposite direction. Ultimately the Victim went to Conaway.
Conaway grabbed the Victim's arm and picked up his pace
moving away from the officers, telling them that they would
not get the Victim, and that if they wanted to take him, they
would have to take the Victim.
officers testified that as they approached, Conaway grabbed
the Victim and "cradle[d] him underneath his arms[, ]
[a]nd at the same time start[ed] to reach in his pocket as if
he had a weapon." At this point, the officers drew their
guns. Conaway told the officers to go ahead and shoot him,
while holding the Victim "up high, kind of using him to
shield himself." After Conaway "fumbl[ed]
around" in his pocket for a while, the officers
concluded that he did not have a gun. The officers holstered
their firearms, and Officer Brown instead drew his Taser.
Officer Brown pointed the Taser at Conaway, "[Conaway]
took [the Victim] and started trying to shield himself with
[the Victim]." Officer Buske testified, "[Conaway]
had [the Victim] immediately in front of him with his arm
wrapped around [the Victim] and [Conaway] was holding [the
Victim] directly in front of him." Conaway continued to
ignore the officers' commands to let the Victim go.
Officer Brown "tried to kind of encircle [Conaway] and
tr[ied] to come at a different angle[, ] [a]nd he would just
turn with the child." Officer Brown testified that
Conaway adjusted his hold on the Victim "trying to
eliminate us from having anywhere to deploy the Taser on
Officer Brown walked up to Conaway and shocked him in the
face or neck, which was "the safest location possible to
deploy the Taser where the child would not be in any
danger." Upon being tased, Conaway immediately dropped
the Victim, and the officers took Conaway into custody. The
officers later discovered that at least one of the prongs of
the Taser had shocked the Victim, despite Officer Brown's
efforts to use the device solely on Conaway.
recording from the police vehicle's dashboard camera was
admitted into evidence and played for the jury. The camera
did not capture video of the officers' interaction with
Conaway, because of the direction the patrol car was
pointing. On the audio, Conaway can be heard repeatedly
stating, "You take me, you take him." The dashboard
camera's recording indicates that the entire incident,
from the officers' arrival at the scene until their
restraint of Conaway, lasted approximately 90 seconds.
was charged with the class A felony of kidnapping, in
violation of § 565.110 (Count I); the class C felony of
endangering the welfare of a child in the first degree, in
violation of § 568.045 (Count III), and the class D
felony of resisting arrest, in violation of § 575.150
(Count IV). Each of these counts relied on the
allegation that Conaway had used the Victim as a shield as
the officers were attempting to apprehend him. Thus, in Count
I, Conaway was charged with kidnapping by unlawfully
confining the Victim "for the purpose of using [him] as
a shield." In Count III, Conaway was charged with
endangering the Victim's welfare "by failing to
cooperate with police commands while holding [the Victim] in
front of defendant's body." In Count IV, the State
alleged that, in resisting a lawful detention, Conaway
"created a substantial risk of serious physical injury
or death to a person in that the defendant used [the Victim]
as a shield when the law enforcement officer drew his
trial was held in August 2016. The prosecutor explained to
the venire panel that
[e]ach element [of the charged offenses] must be proved
beyond a reasonable doubt. There's no higher or lower
burden with regards to each separate element. They all must
be found, they all must be found beyond a reasonable doubt in
order to convict for each count. Is there anyone who would
hold the State to a higher burden and make us prove anything
that's maybe not an element? And it's kind of
confusing when I say that, but like motive. Motive is why
someone does something. Motive is not an element in any of
the three counts that we have alleged against the defendant.
Is anyone going to have trouble finding - convicting, if you
have an unanswered question like why did someone do that?
counsel objected to the question concerning motive. The trial
court overruled the objection, but asked the prosecutor to
clarify her question. The prosecutor rephrased the question
by asking, "[i]s [motive] something that you would
require the State to prove before you would be able to
convict?" In response, three prospective jurors stated
that they would hesitate to convict someone of kidnapping his
or her own child; none of the venirepersons expressed
concerns related to motive.
three-day trial, the jury found Conaway guilty of all three
offenses submitted to them: kidnapping, endangering the
welfare of a child in the first degree, and resisting arrest.
Consistent with the charging instrument, the verdict
directors for each offense relied on Conaway's act of
using the Victim as a shield when officers attempted to
apprehend him. Having found Conaway to be a persistent felony
offender, the court imposed sentences of fifteen years on the
kidnapping count, seven years for endangering the welfare of
a child, and four years for resisting detention, with the
sentences to run concurrently.
raises two arguments on appeal. He first argues that he is
entitled to a new trial because the prosecutor's voir
dire questioning concerning motive improperly solicited a
commitment from the jury. In his second Point, Conaway argues
that he is entitled to a judgment of acquittal on the
kidnapping count, because the State failed to prove that he
confined the Victim "for a substantial period." We
reject both arguments.
first argues that the trial court abused its discretion in
allowing the State, over his objection, to ask prospective
jurors whether they "would be able to convict"
Conaway without proof of motive.
purpose of voir dire is to discover bias or prejudice in
order to select a fair and impartial jury." State v.
Clark,981 S.W.3d 143, 146 (Mo. banc 1998). "There
is no rigid formula for an adequate voir dire. Consequently,
a liberal latitude is allowed in the examination of jurors,
as long as the scope of voir dire remains
commensurate with its purpose to discover bias or prejudice
in order to select a fair and impartial jury." State
v. Ousley,419 S.W.3d 65, 73 (Mo. banc 2013) (citations
and internal quotation marks omitted). "[T]he trial
judge is vested with the discretion to judge the
appropriateness of specific questions, and is generally