State v. Gheen

• Decision Date: 10 April 2001
• Parties: (Mo.App. W.D. 2001) State of Missouri, Respondent v. Kenneth E. Gheen, Appellant. WD57546 0
• Court: Missouri Court of Appeals

41 S.W.3d 598 (Mo.App. W.D. 2001)

State of Missouri, Respondent v. Kenneth E. Gheen, Appellant.

WD57546

Missouri Court of Appeals Western District

04/10/2001

Appeal From: Circuit Court of Jackson County, Hon. C. William Kramer

Counsel for Appellant: Daniel Franco

Counsel for Respondent: Philip Koppe

Opinion Summary: Kenneth E. Gheen appeals his conviction for felony murder in the second degree under § 565.021(2) and armed criminal action under § 571.015.1. He claims: 1) the State's indictment was insufficient; 2) the merger doctrine bars his conviction for felony murder, 3) the state's evidence was insufficient to support the underlying felony of unlawful use of a weapon and 4) the court erred in refusing to give the jury a self-defense instruction.

AFFIRMED.

Division holds: (1) The indictment substantially complied with the MACH-CR pattern indictment for felony murder and, therefore, under Rule 23.01(e) we find the indictment to be sufficient.

(2) Missouri no longer recognizes the merger doctrine.

(3) The State's evidence was sufficient to support the jury's finding that Gheen unlawfully used a weapon.

(4) Gheen's case did not warrant a self-defense jury instruction in that Gheen did not have a reasonable basis for believing he needed to defend himself. Further, he did not do everything possible, consistent with his own safety, to avoid the confrontation, but instead became an aggressor.

Ronald R. Holliger, Judge

Kenneth E. Gheen was found guilty by a jury on May 6, 1999, of felony murder in the second degree under section 565.021.1(2), and armed criminal action under section 571.015.1. On July 16, 1999, he was sentenced to concurrent terms of 15 years for the murder charge and 5 years for armed criminal action. He questions the sufficiency of the indictment, argues that the merger doctrine bars his conviction for felony murder, and contends that the court should have given a self-defense instruction. We affirm.

FACTS

At trial, the parties gave conflicting testimony regarding incidents leading up to a road rage shooting. On August 25, 1998, Gary McEyla and his wife, Cherie McEyla, were driving north on Blue Ridge Boulevard in Independence, Missouri. Gary was driving with Cherie in the passenger seat. As they approached the I-70 exit, Cherie McEyla testified she and her husband were "cut off" by a car driven by Melanie Louderback. Also in the car with her were her boyfriend, Kenneth E. Gheen, and her young son. Gheen and Louderback testified that as they entered I-70 a truck sped up behind them and then tailgated them very closely. McEyla testified that Louderback slammed on her brakes, nearly causing a collision, while Louderback and Gheen testified that Louderback slowed down, but did not slam on her brakes. Louderback testified she slowed down to stop McEyla from driving so close. McEyla, then, pulled alongside Louderback and swore at Louderback out his window. Gheen also yelled out the window at McEyla. McEyla pulled over on the shoulder and got out of his truck and began yelling at Louderback and Gheen to stop. Gheen then told Louderback to pull over, which she did. All witnesses at trial, including the investigating officer, testified that the cars were about 100 yards apart. Gheen and Louderback testified that McEyla began to approach their car.

Cherie McEyla testified that her husband got out of his truck, and was yelling, but did not advance toward Louderback's car. After they pulled over, Gheen grabbed a .45-caliber semi-automatic handgun from the glove compartment. Cherie McEyla testified that Gheen got out of the passenger's side of the vehicle and fired the gun three times in the general direction of McEyla. Louderback and Gheen testified that Gheen stuck his arm out of the passenger window and fired in a "sweeping fashion." Gheen said he did this to scare McEyla into leaving them alone. At this point McEyla was approximately 100 yards away from Gheen. The testimony is uncontroverted that one of the bullets hit the ground several feet from where McEyla was standing, ricocheted off the ground and hit Mr. McEyla between the eyes. McEyla died the next day from the gunshot wound. After Gheen fired the gun, he and Louderback drove off, but then, minutes later, drove back around and noticed police officers on the scene. Louderback and Gheen testified that at the time they drove back around to the scene neither knew that anyone was injured, they just believed that someone must have had a cell phone and reported hearing gunshots. After that, Louderback and Gheen drove to Samuel Weaver's house where they tried to leave the gun. However, Weaver refused to take possession of the gun so Gheen took the gun to Ronny Quinlin's house who then disassembled the gun and threw the pieces in a river.

Before and after the presentation of evidence, Gheen requested the felony murder charge be dismissed, claiming the indictment was defective. These requests were denied. During the jury instruction conference, Gheen proposed a self-defense instruction and an alternative verdict director for murder in the second degree with reference to the self-defense instruction. Both tendered instructions were refused. Gheen also moved for dismissal of the felony murder charge based upon the felony merger doctrine. This motion was likewise denied. Gheen was found guilty by a jury of felony murder and armed criminal action and not guilty of conventional murder in the second degree.

Gheen appeals his conviction based upon four points.

I

In his first point on appeal, Gheen challenges the sufficiency of his indictment. Gheen argues the indictment as to Count I in the alternative of second-degree felony murder was defective because it failed to state the essential facts constituting the alleged offense, specifically, those facts of the underlying uncharged felony of unlawful use of a weapon.

On October 2, 1998, a two-count indictment in the alternative was filed against Gheen. The alternative indictment charged Gheen with one count of murder in the second degree and, alternatively, one count of second-degree felony murder based upon the underlying felony of the unlawful use of a weapon.

The two Counts against Gheen read exactly as follows:

Count 1. Murder 2nd Degree--Felony (10031)

The Grand Jurors of the County of Jackson, State of Missouri, hereby charge that the defendant, Kenneth E. Gheen, in violation of Section 565.021.1, RSMo, committed the class A felony of murder in the second degree, punishable upon conviction under Section 558.011.1(1), RSMo, in that on or about August 25, 1998, in the County of Jackson, State of Missouri, the defendant with the purpose of causing serious physical injury to Gary D. McEyla, caused the death of Gary D. McEyla, by shooting him, and [the] defendant is further given notice that should the State submit murder in the second degree--felony under Section 565.021.1(2), RSMo, it will be based on the perpetration of the class D felony of unlawful use of a weapon--exhibiting under Section 571.030(4), RSMo against Gary D. McEyla.

In the alternative, the state filed:

Count 1. Murder 2nd Degree--Felony (10031)

The Grand Jurors of the County of Jackson, State of Missouri, hereby charge that the defendant, Kenneth E. Gheen, in violation of Section 565.021.1(2), RSMo, committed the class A felony of murder in the second degree, punishable upon conviction under Section 558.011.1(1), RSMo, in that on or about August 25, 1998, in the County of Jackson, State of Missouri, Gary D. McEyla was killed by shooting him as a result of the perpetration of the Class D felony of unlawful use of weapon--exhibiting, under Section 571.030(4), RSMo, committed by the defendant on or about August 25, 1998, in the County of Jackson, State of Missouri.

Count 2. Armed Criminal Action (31010)

The Grand Jurors of the County of Jackson, State of Missouri, hereby charge that the defendant, Kenneth E. Gheen, in violation of Section 571.015, RSMo, committed the felony of armed criminal action, punishable upon conviction under Section 571.015.1, RSMo, in that on or about August 25, 1998, in the County of Jackson, State of Missouri, the defendant committed the felony of murder in the second degree charged in Count 1, all allegations of which are incorporated herein by reference, and the defendant committed the foregoing felony of murder in the second degree by, with and through the use, assistance and aid of a deadly weapon.

Gheen was never charged with unlawful use of a weapon. That crime only served as the underlying felony for the charge of felony murder. Gheen specifically argues that the indictment is defective for five reasons. All five of Gheen's arguments involve the underlying uncharged felony of unlawful use of a weapon. Gheen claims the state failed to: (1) state the approximate time of the offense of unlawful use of a weapon, (2) state the type of weapon used, or exhibited, (3) state the location of the offense, (4) cite the specific statute fixing the penalty for the unlawful use of a weapon and (5) state the requisite element of the culpable mental state for unlawful use of a weapon necessary to convict Gheen. He argues only that the failure to state a mens rea is fatal to the conviction.

The purpose of an indictment is to provide due process notice to the accused of the charges pending against him so that he may prepare an adequate defense. State v. Hodges, 829 S.W.2d 604, 606 (Mo. App. 1992). The test for the sufficiency of an indictment is whether it contains all essential elements of the offense set out in the statute and clearly apprises defendant of facts constituting the offense. Id. A court should reverse a conviction based upon a defective indictment only in instances where the indictment is so defective that by no reasonable construction can it be read to charge the defendant with the offense for which he was convicted. Id.

Supreme Court Rule 23.01(b) requires that an indictment or...