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State v. Green

Court of Appeals of Missouri, Western District, First Division

December 3, 2019

STATE OF MISSOURI, Respondent,
v.
JERRILL A. GREEN, Appellant.

          APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI THE HONORABLE PATRICK W. CAMPBELL, JUDGE.

          Edward R. Ardini, Jr., Presiding Judge, Mark D. Pfeiffer, Judge and Cynthia L. Martin, Judge.

          EDWARD R. ARDINI, JR., JUDGE.

         Jerrill Green ("Green") appeals his convictions of sodomy in the second degree, assault in the third degree, and felonious restraint entered by the Circuit Court of Jackson County ("trial court") following a jury trial. He raises four points on appeal: (I) that the trial court plainly erred by entering a conviction for felonious restraint on count VI, which was not a lesser-included offense of the charged crime of kidnapping; (II) and (III) that the trial court plainly erred in submitting verdict-directing instructions relating to counts II and IV that permitted the jury to convict him without agreeing to the specific act he committed, thereby violating his right to a unanimous verdict; and (IV) that the trial court erred by ordering his sentence for sodomy in the second degree to run consecutive to his sentence for felonious restraint based on an erroneous interpretation of section 558.026, RSMo.[1] We affirm in part, reverse in part and remand for a new trial.

         Factual and Procedural Background [2]

         On the night of July 21, 2016, D.H.[3] was waiting for a ride home when she was approached by Green in his vehicle. D.H. agreed to perform sex acts on Green at his residence in Grandview for one hour in exchange for eighty dollars.

         When Green and D.H. arrived at Green's home, they proceeded to the bedroom and D.H. took off her clothes and wig. D.H. began performing oral sex on Green but, after a few minutes, was unable to continue because her mouth had become dry. D.H. indicated that she wanted to stop and would refund his money. Green told D.H. that she had already been paid and was "going to earn it." Green forced his penis into D.H.'s mouth, causing her to gag.

         When D.H. again asked if she could leave, Green responded that "he was going to have to get his nine, and he began to reach at the foot of his bed like he was reaching for a gun." Believing that Green was reaching for a weapon, D.H. resumed performing oral sex on him. Shortly thereafter, Green's ankle monitor sounded and his phone rang. Green answered the call and spoke with someone for a few minutes.

         After Green completed the call, D.H. grabbed the phone and dialed 911. She could not speak to the dispatcher so screamed for help. In an effort to stop D.H. from screaming, Green wrapped the telephone cord around her neck, strangling her.

         D.H. was able to get up and tried to run to the front door, but was stopped by Green. He pulled her into the living room near the sofa and put his hands around her neck, choking her.

         Meanwhile, upon receiving the 911 call, officers from the Grandview Police Department were dispatched to Green's home for an unknown disturbance. When they arrived, they heard a woman screaming and attempted to kick down the door. At that point, the door to the house opened from the inside and officers observed Green and D.H., both naked. D.H. was covered in blood and had a laceration on her forehead, swelling under her eyes, and ligature marks on her neck. D.H. ran outside and collapsed on the sidewalk.

         D.H. was taken by ambulance to Research Medical Center for examination. The laceration on her head required stitches, and she had a concussion. The emergency room doctor also noted that D.H. had multiple contusions and abrasions on her body, including abrasions on her neck "consistent with something being wrapped around it, either hands or some sort of rope-like material[.]"

         Green proceeded to trial on six counts: count I, rape in the first degree;[4] count II, sodomy in the first degree; count III, assault in the first degree for striking D.H.'s head against the floor; count IV, assault in the second degree for strangling D.H.; count V, assault in the second degree for punching D.H.; and count VI, kidnapping. At trial, three Grandview police officers, the emergency room doctor, the sexual assault nurse examiner, and D.H. testified. The jury acquitted Green of counts I, III, and V. The jury found Green guilty of the lesser-included offenses of sodomy in the second degree on count II and assault in the third degree by strangulation on count IV; in addition to felonious restraint on count VI. The trial court sentenced Green to five years for sodomy in the second degree, time served for assault in the third degree, and eight years for felonious restraint. The trial court ordered the sentence for sodomy in the second degree to be served consecutive to the sentence for felonious restraint, stating that the consecutive sentence was required under section 558.026, RSMo. Green appeals. Additional facts are stated throughout this opinion, as relevant to our discussion herein.

         Discussion

         Green raises four points on appeal. In his first point, he alleges that the trial court plainly erred in convicting him of felonious restraint because he was not charged with that crime and it is not a lesser-included offense of kidnapping. In Points II and III, Green claims that the trial court plainly erred in instructing the jury on counts II and IV, arguing the relevant verdict directors did not require the jury to unanimously agree on the specific act supporting each conviction. In Point IV, Green alleges that the trial court erred by ordering his sentence for sodomy in the second degree to be served consecutive to his sentence for felonious restraint based on the trial court's erroneous application of the law relating to the requirements of section 558.026, RSMo.

         Point I - Felonious restraint conviction

         In his first point, Green alleges that the trial court plainly erred by entering a conviction for felonious restraint, arguing he was not charged with felonious restraint and felonious restraint is not a lesser-included offense to the charged crime of kidnapping. We agree.

         Green was charged by information in lieu of indictment with kidnapping under section 565.110, RSMo. During the instructions conference, the State requested the jury also be instructed on felonious restraint as a lesser-included offense to kidnapping. Green's counsel announced she had no objection and it was submitted to the jury. At Green's request, false imprisonment was also submitted to the jury.[5] The jury found Green guilty of felonious restraint.

         Green acknowledges that because he did not object to the felonious restraint instruction[6]or the entry of conviction for that offense, review of this claim can only be for plain error. See State v. Johnson, 284 S.W.3d 561, 568 (Mo. banc 2009) (stating "[n]on-preserved issues are reviewed for plain error[.]"). "Plain-error review involves a two-step analysis." State v. Muhammad, 334 S.W.3d 164, 166 (Mo. App. E.D. 2011) (citation omitted). "First, we determine whether the trial court committed plain error, which is error that is evident, obvious, and clear." Id. (citation omitted). If we find that the trial court committed plain error, we may then consider "whether manifest injustice or miscarriage of justice actually resulted from the error." Id. (citation omitted).

         "[A] person cannot be convicted of a crime with which the person was not charged unless it is a lesser included offense of a charged offense." State v. Parkhurst, 845 S.W.2d 31, 35 (Mo. banc 1992) (citation omitted). In count VI, Green was charged with kidnapping. At the State's request, felonious restraint was also submitted to the jury; and it was for this offense that the jury returned a guilty verdict and the trial court entered judgment of conviction. However, "[f]elonious restraint is not a lesser included offense of kidnapping because it requires proof of an element, exposure to a substantial risk of harm, which is not included in the kidnapping statute." Williams v. State, 524 S.W.3d 553, 565 (Mo. App. W.D. 2017) (citations omitted).[7] Therefore, the trial court plainly erred by entering a conviction for an offense that was neither charged nor constituted a lesser-included offense of the charged crime.

         Because we find plain error, we must now determine whether that error resulted in manifest injustice or a miscarriage of justice. "Manifest injustice is determined by the facts and circumstances of the case, and the defendant bears the burden of establishing manifest injustice." State v. Johnson, 524 S.W.3d 505, 513 (Mo. banc 2017) (quoting State v. Baxter, 204 S.W.3d 650, 652 (Mo. banc 2006)). "To be entitled to relief under the plain error rule, an appellant must go beyond a mere showing of demonstrable prejudice to show manifest prejudice affecting his substantial rights." Id. (quoting State v. Winfield, 5 S.W.3d 505, 516 (Mo. banc 1999)). "In other words, the appellant must show that the error affected his rights so substantially that a miscarriage of justice or manifest injustice will occur if the error is left uncorrected." Id. (quoting Winfield, 5 S.W.3d at 516).

         The Eastern District of this Court was called upon to address a similar issue in State v. Pullum, 281 S.W.3d 912 (Mo. App. E.D. 2009). In Pullum, the defendant was charged with multiple offenses including statutory sodomy in the second degree. Id. at 914. However, the statutory sodomy count was "misdescribed" in the captions and summaries contained in the initial complaint, indictment, and substitute information as being a charge for statutory rape in the second degree, and "the parties relied on this misdescription in prosecuting and defending the case." Id. at 917. This mutual misunderstanding persisted throughout the proceedings and Pullum was ultimately convicted of the crime of statutory rape in the second degree. Id. at 916. Noting that statutory rape in the second degree was not a lesser-included offense of the charged crime of statutory sodomy in the second degree, the court held that "[t]he entry of judgment on a conviction not charged in the substitute information constitutes plain error requiring reversal." Id. at 917, 918. The State attempts to avoid the holding of Pullum by characterizing the issue before us as one of simple variance between the charging document and verdict directing instruction.[8] The State's efforts are unavailing. "Under the 'variance' caselaw, 'when a crime may be committed by any of several methods, . . . the method or methods submitted in the verdict directing instruction must be among those alleged in the information.'" State v. Hendren, 524 S.W.3d 76, 83 (Mo. App. W.D. 2017) (quoting State v. Lee, 841 S.W.2d 648, 650 (Mo. banc 1992)). "A variance is not fatal, and will not require reversal, unless it submits a new and distinct offense from that with which defendant was charged." Id. (quoting State v. Glass, 136 S.W.3d 496, 520 (Mo. banc 2004)). Here, felonious restraint was not a separate method of committing the crime of kidnapping; instead, it was an entirely new and distinct uncharged offense. Thus, variance jurisprudence is of no relevance to our analysis.

         "Due process requires that a defendant not be convicted of an offense not charged in an indictment [or information]." Pullum, 281 S.W.3d at 916 (citations omitted). Green was not charged with felonious restraint, and felonious restraint is not a lesser-included offense to the charged crime of kidnapping. Because Green was convicted of a crime with which he was not charged, we must, as the court did in Pullum, find that manifest injustice has occurred and reverse and vacate Green's conviction for felonious restraint.

         Instructions on Remand

         Having concluded that Green's conviction for felonious restraint must be reversed, we must now determine the scope of the proceedings permitted on remand. At oral argument, the parties agreed that if we grant Point I and reverse Green's conviction for felonious restraint, then we must remand to the trial court for a new trial on count VI. However, the parties disagreed on the offense to be retried. The State argued that it was entitled to retry Green on the original charge of kidnapping. Green argued that double jeopardy principles would prohibit a new trial on kidnapping and limit any retrial to the offense of false imprisonment. We agree with Green.

         It is well-settled that the jury's guilty verdict for felonious restraint in the original trial served as an implicit acquittal of Green on the charge of kidnapping. See State v. Bradshaw, 593 S.W.2d 562, 566 (Mo. App. W.D. 1979) ("The conviction for second degree murder was an implicit acquittal of first degree (felony) murder so that retrial for that offense would put the defendant twice in jeopardy") (citing Green v. U.S., 355 U.S. 184, 190 (1957) (holding that in addition to reliance on "the assumption of implicit acquittal," retrial on higher offense is also prohibited by double jeopardy because jury had full opportunity to return a verdict on the higher offense, and was dismissed without doing so and without defendant's consent)); State v. Moseley, 735 S.W.2d 46, 48 (Mo. App. W.D. 1987) ("conviction of the lesser [offense] impliedly acquits the defendant of the greater offense"); Shopbell v. State, 686 S.W.2d 521, 523 (Mo. App. W.D. 1985) ("When the jury convicted movant of second-degree murder, they impliedly acquitted him of first-degree murder."); Ray v. State, 532 S.W.2d 478, 482 (Mo. App. S.D. 1975) (citing Price v. Georgia, 398 U.S. 323 (1970) ("Having been found guilty only of manslaughter, movant had been 'implicitly' acquitted of the greater offense of first degree murder and he could not be retried for murder.")). Under these circumstances, a retrial for kidnapping would be barred by the double jeopardy clause of the United States and Missouri Constitutions. See Shopbell, 686 S.W.2d at 523; Bradshaw, 593 S.W.2d at 566.

         The only lesser offense to kidnapping that was properly submitted and not reached by the jury in the original trial was false imprisonment.[9] As a result, we agree with Green that, on remand, the ...


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