State v. Harding

• Decision Date: 25 April 2017
• Docket Number: ED 104013.
• Citation: 528 S.W.3d 362
• Parties: STATE of Missouri, Respondent, v. Ricky J. HARDING, Jr., Appellant.
• Court: Missouri Court of Appeals

528 S.W.3d 362

STATE of Missouri, Respondent,

v.Ricky J. HARDING, Jr., Appellant.

ED 104013.

Missouri Court of Appeals, Eastern District, DIVISION ONE.

Filed: April 25, 2017

Motion for Rehearing and/or Transfer to Supreme Court Denied June 8, 2017

Motion for Transfer to Supreme Court Denied October 5, 2017

Samuel E. Buffaloe, Office of State Public Defender, Columbia, MO, for appellant.

Christine Lesicko, Assistant Attorney General, Jefferson City, MO, for respondent.

Lisa P. Page, Judge

Ricky Harding appeals his conviction after a jury trial for felony murder, unlawful possession of a firearm, domestic assault in the second degree, and four counts of endangering the welfare of a child in the second degree.We affirm in part and reverse and remand in part.

BACKGROUND¹

In 2014, twelve-year-old A.L. ("Daughter") and nine-year-old Am.L. ("Son") lived with their mother("Mother" or "Victim"), step-father("Defendant") and two younger siblings² near Mexico, Missouri.Mother and Defendant argued almost every day, and the children were told to stay in their rooms during these altercations.One day, Defendant showed Son his 1911 Colt .45 pistol that he acquired "off the street."Defendant, a prior felony offender, knew it was illegal for him to possess a firearm.

In the early morning hours of May 25, 2014, Daughter awoke to the sound of an argument between her Mother and Defendant.She peeked out of her bedroom into the living room, saw Defendant screaming at her Mother, and saw her Mother crying.Daughter listened to the argument, and when she later peeked out again, she saw her Mother grab Defendant's gun from between the couch cushions.Defendant stood and moved for the gun.Daughter saw her Mother hunch over, hiding the gun between her legs, with Defendant behind her Mother struggling for control of the weapon.Daughter hid behind her door, and then heard a shot.

Daughter ran into the living room and saw her Mother lying on the floor, bleeding profusely.Son and the two younger siblings, now awake, also rushed into the room.Their Mother began scooting toward the garage door, and Daughter called 911.Daughter began helping her Mother inch toward the truck in the garage to get her to the hospital.However, Defendant drove off alone, leaving all four children with their dying Mother.Daughter led her siblings into Son's room, where they awaited the arrival of the police.

Paramedics arrived and transported Mother to the hospital.Having lost too much blood to be resuscitated, Mother died.Defendant arrived, agitated and argumentative, at the hospital sometime thereafter.He was arrested outside the emergency room, and was charged with second degree felony murder, unlawful possession of a firearm, domestic assault in the second degree, armed criminal action, and four counts of endangering the welfare of a child in the first degree.

After this incident, the children began seeing Timothy Taylor, a licensed professional counselor, who diagnosed the children with multiple psychological conditions, including post-traumatic stress disorder.The children told their counselor they were fearful of Defendant.

After a five-day trial, the jury considered the State's charges against Defendant, as well as instructions for voluntary and involuntary manslaughter and endangering the welfare of a child in the second degree.The jury found Defendant guilty of felony murder, unlawful possession of a firearm, domestic assault in the second degree and four counts of endangerment in the second degree.He received a total of 30 years of imprisonment.This appeal follows.

DISCUSSION

Defendant submits seven points on appeal, contending: (I) insufficient evidence existed to support the felony-murder charge because Victim was not killed as a result of Defendant being a felon-in-possession; (II) the felony-murder jury instruction improperly relieved the State from proving a contested element of the offense; (III) insufficient evidence existed to support the four counts of child endangerment because Defendant did not fire a gun near the children, nor had he negligently left the children alone; (IV) a continuance should have been granted so that Defendant could prepare and call an untimely-disclosed witness; (V)the court erroneously excluded evidence concerning the older three children's previous exposure to domestic violence perpetrated by their father; (VI)Defendant's proposed jury instruction for a necessity defense should have been granted; and (VII) the written judgment contains an error needing correction.

Point I—Felon-in-Possession Conviction Sufficient as Underlying Felony for Felony Murder

In his first point on appeal, Defendant contends the trial court erred in overruling his motion for judgment of acquittal at the close of all evidence and entering judgment for the class A felony of second degree felony murder.Specifically, Defendant argues the evidence was insufficient to establish that Victim's death was caused as a result of him being a felon in possession of a firearm.Thus, Defendant asserts the court violated his right to due process as guaranteed by the Fourteenth Amendment to the United States ConstitutionandArticle I, Section 10 of the Missouri Constitution.Absent this alleged error, Defendant maintains he would not have been convicted of felony murder, and therefore his conviction on this count must be reversed.We disagree.

Standard of Review

Our review is limited to determining whether sufficient evidence exists from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt.State v. Burrage, 465 S.W.3d 77, 79(Mo. App. E.D.2015)."[T]he relevant question is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."State v. Bateman, 318 S.W.3d 681, 687(Mo. banc 2010).

Analysis

"A person commits the offense of murder in the second degree [felony murder] if he or she ... commits or attempts to commit any felony, and, in the perpetration or the attempted perpetration of such felony ... another person is killed as a result of the perpetration or attempted perpetration of such felony ...."Section 565.021.1(2)(emphasis added).³"[T]he practical effect of the felony-murder rule [is that it] permits the felonious intent necessary to a murder conviction to be shown by the perpetration of or attempt to perpetrate a felony."State v. Rumble, 680 S.W.2d 939, 942(Mo. banc 1984).

"The plain and ordinary meaning of ‘any ’[as used in Section 565.021] indicates our legislature intended that every felony could serve as an underlying felony for the purpose of charging a defendant with second degree felony murder ... [n]owhere does the statute limit the felony to be used in charging under this statute to any particular type of or specific felony, i.e., inherently dangerous, as some other states have done."State v. Bouser, 17 S.W.3d 130, 139(Mo. App. W.D.1999).⁴

Here, Defendant was charged with felony murder in connection with the commission of the class D felony of unlawful possession of a firearm, in violation of Section 571.070.1(1)("A person commits the offense of unlawful possession of a firearm if such person knowingly has any firearm in his or her possession and ... [s]uch person has been convicted of a felony under the laws of this state ...").It is undisputed Defendant was a felon at the time of Victim's death, in that Defendant was previously convicted of the class C felony of burglary in the second degree approximately twenty years ago.Additionally, it is not disputed that Defendant illegally obtained and possessed a 1911 Colt .45 Pistol—prohibited by said burglary conviction—through the events of the night in question.Thus, based on the plain language of Section 565.021.1(2), it is clear an unlawful-possession felony may potentially serve as the underlying felony for a felony-murder charge.SeeBouser, 17 S.W.3d at 139.

However, we must also apply a "foreseeability-proximate cause" concept to the underlying felony when determining a person's responsibility for a felony-murder killing.Burrage, 465 S.W.3d at 80."[A]defendant may be responsible for any deaths that are the natural and proximate result of the crime unless there is an intervening cause of that death."Id.To test causation, Missouri courts will often look at the underlying felony, generally, as well as at the facts of the particular case.See, e.g., State v. Blunt, 863 S.W.2d 370, 371–72(Mo. App. E.D.1993)("Victim's death was the natural and proximate result of acts committed by [d]efendant's accomplice, [and] it is foreseeable a death could result [from participating in] an illegal drug deal.").A death is foreseeable if the underlying felony and killing were a part of a continuous transaction, "closely connected in time, place and causal relation."State v. Manuel, 443 S.W.3d 669, 677(Mo. App. W.D.2014)(quotingState v. Adams, 339 Mo. 926, 98 S.W.2d 632, 637(Mo.1936) ).It is inconsequential that a defendant's conduct was not the immediate cause of death, but is sufficient if the conduct "was a contributing [proximate] cause of death."SeeState v. Scroggs, WD 70068, 521 S.W.3d 649, 2017 WL 1229924, at *5(Mo. App. W. Dist.Apr. 4, 2017)(citingState v. Stallman, 289 S.W.3d 776, 779(Mo. App. E.D.2009) ).

In Burrage, the defendant drove to the location of the drug sale while his cousin (the shooter) positioned himself in the back seat.465 S.W.3d at 78.Upon arrival at the sale point, the defendant noticed the buyers were carrying firearms.Id.The buyers surrounded defendant's car, and soon thereafter exhibited their guns.Id.The defendant's cousin shot and killed one of the buyers, and defendant sped away.Id. at 78–79.In upholding the defendant's conviction of felony murder, this court reasoned defendant's behavior indicated he knew the drug sale was likely to "go wrong."Id. at 81....