State v. Harney

• Decision Date: 24 July 2001
• Citation: 51 S.W.3d 519
• Parties: (Mo.App. W.D. 2001) State of Missouri, Respondent v. Rodney E. Harney, Appellant. WD58480 0
• Court: Missouri Court of Appeals

51 S.W.3d 519 (Mo.App. W.D. 2001)

State of Missouri, Respondent v. Rodney E. Harney, Appellant.

WD58480

Missouri Court of Appeals Western District

07/24/2001

Appeal From: Circuit Court of Pettis County, Hon. Donald L. Barnes

Counsel for Appellant: Nancy A. McKerrow

Counsel for Respondent: Adriane D. Crouse

Opinion Summary:

Rodney Harney appeals his jury convictions for second degree felony murder, section 565.021.1(2); first degree robbery, section 569.020; and armed criminal action (ACA), section 571.015. He was sentenced as a prior offender, section 558.016, to concurrent terms of imprisonment of thirty years for felony murder and robbery, and ten years for ACA, to be served consecutively with his other sentences.

Harney raises two points on appeal. In Point I, he claims the court erred in giving Instructions 8, 9, and 10, the State's verdict directors, because: (1) Instruction No. 9, the verdict director submitting first degree robbery, the underlying felony upon which the other two verdict directors were predicated, failed to comply with MAI-CR 3d 323.02 and its Notes on Use; and (2) even if Instruction No. 9 complied with MAI-CR 3d 323.02, it violated the substantive law. As to his first argument in Point I, Harney contends the State was not allowed to allege in the first paragraph of Instruction No. 9 that he "took" the truck and then allege, in paragraph four of the same instruction, that he "retained" the truck. Even though both "taking" and "retaining" are among the six acts of appropriation defined in section 570.010(2) as a necessary element of first-degree robbery, Harney contends the act of appropriation chosen must remain the same throughout the instruction. As to his second argument in Point I, Harney contends that Instruction No. 9 conflicts with the substantive law because, by submitting Instruction No. 9 as it did, the State was, in effect, allowed to allege two different theories of forcible stealing in the same verdict director. Harney further makes the alternate claim in Point I that even if the court did not err in giving Instruction No. 9, its giving was nonetheless error because it was not supported by the evidence. He claims there was no evidence in the record from which a reasonable jury could find that the retention of the truck was "immediately" after its taking, as required by the plain language of section 569.010(1)(a).

In Point II, Harney claims the court erred in overruling his motion for judgment of acquittal at the close of all the evidence as to the felony murder and ACA charges because the State, in violation of his right to due process, failed to prove the required elements of the offenses. He argues the evidence was insufficient for a jury to find beyond a reasonable doubt that the victim was killed during the perpetration of the underlying felony of robbery and that the robbery was committed by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon, since the robbery was completed prior to the victim's murder.

Division Three holds: Because we find that Point I is dispositive of the appeal, we address it alone.

(1) A thorough reading of MAI-CR 3d 323.02 does not indicate that the State cannot "mix and match" acts of appropriation in the same verdict director. To the contrary, the express language of the instruction would indicate that the State was free to pick and choose among the six options of appropriation found in the fourth paragraph, regardless of which option was selected in the first paragraph. Our reading of the Notes on Use accompanying MAI-CR 3d 323.02 and 323.04 also does not disclose any requirement that the act of appropriation used in the fourth paragraph must be the same as that used in the first paragraph. Further, the mandate in Note on Use 5 that the State to choose "[o]nly one option" refers not to the six appropriation options set out in parentheses in the first and fourth paragraphs of the instructions, but rather to the bracketed options found in the second, third and fourth paragraphs.

(2) Harney claims that this change in theory violated the substantive law because the "in the course thereof" language of section 569.020.1 requires that the "aggravating factor which converts a robbery in the second degree to a robbery in a first degree, must relate back to the method of stealing alleged to constitute the forcible stealing/robbery in the second degree. It has to be the same conduct." We disagree. Giving the "in the course thereof" language in section 569.020.1 its plain and ordinary meaning, we find that it clearly refers to forcible stealing as a whole transaction, not just the act of appropriation as hypothesized in the first paragraph.

(3) Instruction No. 9 violates the substantive law because it did not require the jury to find that the retention of the truck was immediately after its taking. Under section 569.010(1)(a), a person forcibly steals, and thereby commits robbery second, when he uses or threatens the immediate use of physical force for the purpose of preventing or overcoming resistance to the retention of the property immediately after the taking. Giving this language its plain and ordinary meaning, it is clear the legislature intended to limit the use of retention when that conduct is asserted as the underlying act of appropriation to prove forcible stealing. Given this obvious intent, it seems totally illogical that the legislature would not also have intended to limit retention when it is alleged as an aggravating circumstance to elevate robbery second to robbery first. To properly convict for first-degree robbery, where retention of stolen property is alleged as the underlying act of appropriation to prove forcible stealing or as the act of appropriation to prove the necessary aggravating circumstance to elevate robbery second to robbery first, the jury must be instructed upon and find that the retention of the property was immediately after its taking.

(4) The court failed to instruct the jury on the immediacy of the retention of the truck after its taking, which was an essential and contested element of the crime, and we could not say with any certainty how a reasonable jury would have determined the issue. The court's error in omitting that element from the instruction resulted in manifest injustice or a miscarriage of justice, requiring us to reverse and remand for plain error.

Ulrich, P.J., and Newton, J., concur.

Edwin H. Smith, Judge

Rodney E. Harney appeals the judgment of his jury convictions in the Circuit Court of Pettis County for second degree murder, in violation of section 565.021.1(2),¹ the "felony murder" provision; first degree robbery, in violation of section 569.020; and armed criminal action (ACA), in violation of section 571.015. He was sentenced as a prior offender, pursuant to section 558.016, to concurrent terms of imprisonment of thirty years for felony murder and robbery, and ten years for ACA, to be served consecutively with his other sentences.

The appellant raises two points on appeal. In Point I, he claims that the trial court erred in giving Instructions 8, 9, and 10, the State's verdict directors, because: (1) Instruction No. 9, the verdict director submitting robbery in the first degree, the underlying felony upon which the other two charges and the verdict directors thereon were predicated, failed to comply with MAI-CR 3d 323.02,² the mandatory instruction for submitting robbery in the first degree, and its Notes on Use; and (2) even if Instruction No. 9 complied with MAI-CR 3d 323.02, it violated the substantive law. He further claims in Point I that even if we find that the trial court did not err in giving Instruction No. 9 as being contrary to MAI-CR 3d 323.02 or the substantive law, the giving of Instruction No. 9 was nonetheless error because it was not supported by the evidence. In Point II, he claims that the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence as to the charges of felony murder and ACA because the State, in violation of his right to due process, failed to prove the required elements of the offenses in that the evidence was insufficient for a reasonable jury to find beyond a reasonable doubt that the victim was killed during the perpetration of the underlying felony of robbery and that the robbery was committed by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon, since the robbery was completed prior to the use of a dangerous instrument or deadly weapon that resulted in the victim's murder.

We reverse and remand.Facts

On Sunday, May 9, 1999, the victim, George Samek, and his daughter, Jayme, left Bolivar, Missouri, and drove to Kansas City to pick up the victim's son, Eric, at the airport. They arrived back in Bolivar around 9:30 p.m. The victim dropped off his children at Jayme's apartment and returned to his home at 1773 East County Road 470 in Bolivar.

On the evening of May 9, the appellant; his girlfriend, Krisda Neill; and Oran Caudle were riding around in the appellant's van when Caudle suggested that they rob an ATM machine. However, the van was low on gas, so they decided to steal some from the victim's home. The appellant was a former co-worker of the victim's and had been to his home on previous occasions. In order to reach the victim's home, they turned east off of County Road 470 in Polk County and crossed a concrete-slab bridge over the Pomme de Terre River. On the east side of the bridge was a gravel road which led to the victim's home. However, this road was partially blocked by tree branches and debris that had been deposited there after a recent flood, so they parked the van off the road and walked. When they arrived at the victim's home, he was not there, so Caudle kicked the front door open, and they went inside. Approximately thirty minutes later, the victim arrived home and entered through the utility...