Court of Appeals of Missouri, Western District, First Division
FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI THE
HONORABLE PATRICK W. CAMPBELL, JUDGE.
R. Ardini, Jr., Presiding Judge, Mark D. Pfeiffer, Judge and
Cynthia L. Martin, Judge.
R. ARDINI, JR., JUDGE.
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. We affirm in part, reverse in part and
remand for a new trial.
and Procedural Background 
night of July 21, 2016, D.H. 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.
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.
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.
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.
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.
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.
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[.]"
proceeded to trial on six counts: count I, rape in the first
degree; 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.
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.
I - Felonious restraint conviction
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.
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. The jury found Green guilty of felonious
acknowledges that because he did not object to the felonious
restraint instructionor 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.
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). 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
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).
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. 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.
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
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.
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.
only lesser offense to kidnapping that was properly submitted
and not reached by the jury in the original trial was false
imprisonment. As a result, we agree with Green that, on
remand, the ...