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State v. Hudson

Court of Appeals of Missouri, Western District, Fourth Division

May 14, 2019

STATE OF MISSOURI, Respondent,
v.
KEITH B. HUDSON, Appellant.

          Appeal from the Circuit Court of Jackson County The Honorable Bryan E. Round, Judge

          Before Karen King Mitchell, C. J., and Victor C. Howard and Alok Ahuja, JJ.

          Alok Ahuja, Judge

         Following a jury trial in the Circuit Court of Jackson County, Appellant Keith Hudson was convicted of robbery in the first degree and receiving stolen property. Hudson was sentenced to terms of imprisonment of fifteen years and seven years, respectively, with the sentences ordered to run concurrently. Hudson appeals. He asserts two Points, which challenge only his conviction for first-degree robbery. First, Hudson argues that the evidence was insufficient to support his conviction. Second, he argues that the circuit court plainly erred by submitting a verdict directing instruction which omitted a required definition.

         We hold that the evidence was sufficient to support Hudson's robbery conviction. We conclude, however, that the circuit court plainly erred by failing to include the required definition of a "dangerous instrument" in the verdict director for the robbery charge, when that element was seriously disputed at Hudson's trial. We accordingly reverse Hudson's conviction for first-degree robbery, and remand the case to the circuit court for further proceedings on the robbery charge. Because the instructional error relates to the element which differentiates first-degree from second-degree robbery, and because the evidence was otherwise sufficient to support Hudson's conviction, on remand the State will have the option of retrying Hudson for first-degree robbery, or agreeing to entry of a conviction for the lesser-included offense of second-degree robbery.

         Factual Background[1]

         On November 1, 2016, sometime after 9:00 a.m., Officer Kenny Miller responded to a disturbance call at a McDonald's Restaurant on Broadway Street in Kansas City. An employee called the police because Hudson reportedly refused to leave the restaurant after complaining that a cup of coffee he had purchased was too cold. When Officer Miller arrived, Hudson was in the parking lot. Officer Miller spoke with Hudson, patted him down for weapons, and ran a computer check on Hudson's identification. Officer Miller let Hudson go after it was confirmed that he had no outstanding warrants.

         A little before 10:00 a.m., the Victim, an adult female, pulled her Chevrolet Tahoe into a Shell gas station across the street from the McDonald's, to get a cup of coffee and gasoline. After pulling up to the pump, the Victim observed a man, whom she later identified as Hudson, standing near the gas station. While the Victim was sitting in her vehicle looking in her purse for money, Hudson approached and opened the driver's door of the vehicle. The Victim testified that Hudson put "something" to her side, which felt "like a sharp object"; she thought the object was a weapon. The Victim testified that she felt "real[ly] scared," and in fear for her life.

         Hudson told the Victim to get out of the vehicle. The Victim complied. As she was exiting the vehicle, the Victim reached for her purse, but Hudson "told [her] to leave [her] purse and just get out." After the Victim got out, Hudson drove off in her vehicle. The Victim ran into the gas station, and someone called the police.

         Officer Charles Hill responded to the call. The Victim described the robber as a black male, medium build with a lazy left eye, wearing blue jeans and dark clothing. Officer Hill notified a dispatcher of the Victim's description of the robber and of the stolen vehicle.

         Less than five minutes after leaving the McDonald's, Officer Miller heard from dispatch that a robbery had occurred at the gas station across the street. The description of the robber matched Hudson, so Officer Miller reported the information he knew about Hudson to dispatch, and drove to the gas station.

         Less than ten minutes after Officer Hill responded to the call at the gas station, Officer Kevin Eifert notified dispatch that he saw the Victim's vehicle less than two miles away, near 45th Street and Paseo Boulevard. The vehicle turned into the parking lot of a cellular phone store. Hudson exited the vehicle and walked into the store. After verifying that the vehicle belonged to the Victim, Officer Eifert arrested Hudson in the store. Hudson was searched, and officers found the keys to Brown's vehicle in his left coat pocket. Officers found no weapon on Hudson's person when they searched him incident to his arrest.

         Officer Hill drove the Victim to the cell phone store where Hudson was detained. At the store, the Victim identified her vehicle, and identified Hudson as the person who had robbed her. Later that day, the Victim gave a statement to a detective, in which she stated that, although she could not be sure, she believed a gun was held to her side. At trial, the Victim testified that she had never met Hudson before he robbed her on November 1, 2016.

         Hudson was charged with robbery in the first degree and receiving stolen property.

         The case proceeded to a jury trial. In addition to admitting the evidence as outlined above, the State introduced into evidence a recording of surveillance video from the gas station where the robbery occurred. Because the surveillance video was shot from a distance, and because Hudson's interaction with the Victim occurred on the far side of her vehicle, the video does not reveal any details of their interaction, and in particular whether Hudson wielded any sort of object or weapon during the theft.

         At trial, Hudson testified in his own defense. He testified that he first met the Victim the day before the robbery, on October 31, 2016, when she and a male companion asked him and a male associate if they wanted to buy jewelry and Fentanyl pills. Hudson was dealing methamphetamine at the time. He testified that he told the Victim that he did not want to buy the items, nor did he want to exchange drugs for the items. Instead, he offered the Victim drugs in exchange for letting him rent her vehicle or use her credit card. Hudson testified that the Victim did not agree to this exchange at that time.

         Hudson testified that, the next day, he was at the Shell gas station when the Victim pulled in, and waved for Hudson to come over and talk to her. Hudson did not immediately walk over because he saw police nearby. After the police left the area, Hudson approached the Victim's vehicle. Hudson testified that, after he opened the vehicle's door, the Victim offered to let him rent her vehicle and use her credit card in exchange for 1.6 grams of methamphetamine. Hudson testified that he agreed to the transaction and gave the Victim the methamphetamine she requested. As the Victim got out of the vehicle, Hudson testified that he asked her if she wanted her purse; according to Hudson the Victim stated that there was nothing of value in the purse, and walked away. After the Victim left, Hudson testified that he drove to the cell phone store where he was arrested.

         Instruction No. 8 was the verdict director for robbery in the first degree. In relevant part, the instruction provided that, to convict Hudson for first-degree robbery, the jury was required to find that, "in the course of taking the property, the defendant displayed or threatened the use of what appeared to be a deadly weapon or dangerous instrument." Although Note on Use 3 to MAI-CR 3d 323.02 required that the term "dangerous instrument" be defined, Instruction No. 8 failed to do so. Hudson did not object to Instruction No. 8 prior to its submission to the jury.

         The jury found Hudson guilty of robbery in the first degree and of receiving stolen property. The circuit court found Hudson to be a prior and persistent offender, and sentenced him to a fifteen-year term of imprisonment for the robbery offense, and to seven years for receiving stolen property, with the sentences ordered to run concurrently.

         Hudson appeals.

         Discussion

         I.

         We consider Hudson's two Points out of order. In his second Point, Hudson argues that there was insufficient evidence to convict him of robbery in the first degree.

         To determine whether the evidence was sufficient to support a conviction, we do not assess the credibility of the evidence, but instead accept as true all evidence tending to prove guilt together with all reasonable inferences that support the verdict. State v. Naylor, 510 S.W.3d 855, 858-59 (Mo. 2017).

This is not an assessment of whether this Court believes that the evidence at trial established guilt beyond a reasonable doubt but rather a question of whether, in light of the evidence most favorable to the State, any rational fact-finder could have found the essential elements of the crime beyond a reasonable doubt. In reviewing the sufficiency of the evidence supporting a criminal conviction, an appellate court does ...

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