State v. Lewis, ED 99793.

• Decision Date: 13 May 2014
• Docket Number: No. ED 99793.,ED 99793.
• Parties: STATE of Missouri, Plaintiff/Respondent, v. Justin A. LEWIS, Defendant/Appellant.
• Court: Missouri Court of Appeals

431 S.W.3d 7

STATE of Missouri, Plaintiff/Respondent,

v.Justin A. LEWIS, Defendant/Appellant.

No. ED 99793.

Missouri Court of Appeals,

Eastern District,

Division Two.

May 13, 2014.

Richard A. Starnes, Jefferson City, MO, for Plaintiff/Respondent.

Craig A. Johnston, Columbia, MO, for Defendant/Appellant.

SHERRI B. SULLIVAN, J.

Introduction

Justin A. Lewis (Appellant) appeals from the trial court's judgment entered upon a jury verdict finding him guilty of second-degree felony murder, unlawful use of a weapon (UUW), and two counts of armed criminal action (ACA) and sentence entered upon the jury's recommended sentences for a total of 49 years' imprisonment. We affirm.

Factual and Procedural Background

During the early morning hours of June 26, 2010, Dorian Thomas (Dorian), whose nickname was “Boy,” was driving his gold Cadillac with his 17–year–old girlfriend Deja Chappell (Chappell) in the front passenger seat on Lurch Avenue in Kinloch. Chappell testified at trial that as Dorian was parking the Cadillac, a Jeep Cherokee passed them. Chappell was talking to her sister's cousin from the window of the Cadillac when she saw headlights coming from behind them, heard five gunshots as the Cherokee passed by, and saw the Cherokee driving off. She turned to Dorian who was slumped over and unconscious. She got out of the car and ran around to the driver's side, opened the door, and lifted Dorian's dreadlocks from his face. She saw blood all over her hands. Chappell called the police from Dorian's cell phone. Police and an ambulance responded to the scene. Chappell went with police to try to find the Jeep Cherokee, which they found parked on Wolf Street. Chappell identified the Cherokee but was not able to identify anyone who had been in it that night.

Dorian died from a gunshot wound to the head. Detective Ben Kloos (Detective Kloos) investigated Dorian's homicide. On July 2, 2010, Detective Kloos interviewed 15–year–old Marquis McKinney (McKinney) at the police station.¹ During the interview, which was recorded, McKinney told Detective Kloos that on the night of the incident he had been at a party off of Bermuda Drive. Somebody had shot at the people at the party. McKinney said he, Kevin McDavis (McDavis), nicknamed “Little Kevin,” and Appellant, known as “Little Red,” left the party at that point in a stolen white Jeep Cherokee. These three were members of the gang known as the “Hood Squad.” Appellant was driving, McDavis was in the front passenger seat and McKinney was in the back. The three of them drove to Kinloch looking for anyone the gang was “into it with,” which included Darian Thomas (Darian), who was Dorian's twin brother. Darian's nickname was “Bit.” ² McKinney said as they were driving down Lurch Avenue in Kinloch, they saw a person whom they thought was Darian attempting to parallel park a gold Cadillac. McKinney said McDavis told Appellant to make a U-turn after they passed the gold Cadillac and to “get up on Bit.” McKinney told Detective Kloos that after Appellant made the U-turn, they drove by the Cadillac, and McDavis shot four or five shots out of the front passenger window of the Cherokee into the Cadillac.

McKinney related that the three fled the scene in the Cherokee and abandoned it at the intersection of Wolf and Shillington. At the intersection, McKinney said he saw McDavis empty a revolver and dispose of the spent shell casings. McKinney told Detective Kloos he had not known McDavis had the gun until after they made the U-turn and McDavis said “get up on Bit.” McDavis then left on foot and McKinney and Appellant got a ride from someone.

The police could not locate the spent shell casings where McKinney said McDavis had disposed of them. They processed the Cherokee for fingerprints and found three prints belonging to McDavis.

McKinney was shot in the head on April 30, 2011, and claims he has short-term memory loss as a result. At trial, he testified he did not know Appellant or McDavis, did not remember any of the things he said to Detective Kloos or recall any of the events of June 26, 2010 that he recounted to Detective Kloos. McKinney stated he did not remember talking to Detective Kloos, being shot in 2011, undergoing surgery or even what he did the day before.

Officer John Krebs (Officer Krebs) testified that at about 11:00 a.m. on July 13, 2010, he and three other officers were directed to go to an apartment in Ferguson to arrest Appellant for the homicide. They had been given a photograph of Appellant by detectives. Officer Krebs and Officer McGee knocked on the front door of the apartment. Appellant answered the door. Officer Krebs asked Appellant to identify himself, which he did. Officer Krebs advised Appellant he was under arrest and of his Miranda³ rights. Appellant indicated he understood his rights and then said, “I know why you are here.” In the photograph, Appellant had dreadlocks. At the time of his arrest at the apartment, Appellant's hair was cut short. Officer Krebs asked Appellant if he had recently cut his hair. Appellant responded he had cut it about a week ago.

Because Appellant was 16 years old when he was arrested, he was taken to the juvenile division of circuit court, which certified him to be tried as an adult in a court of general jurisdiction. In circuit court, the State charged Appellant with one count of UUW for discharging a firearm from a vehicle resulting in another person's death (Count I), second-degree felony murder (Count III), and two counts of ACA (Counts II and IV).

Prior to trial, Appellant filed a motion to suppress the statements he made when he was arrested at his home on July 13, 2010, because neither a parent nor a juvenile officer had been present and Officer Krebs had asked a guilt-seeking question. The trial court overruled the motion. A jury trial began on February 19, 2013. Appellant renewed his motion to suppress when Officer Krebs took the stand to testify. The trial court again overruled the motion.

After a four-day trial, concluding on February 22, 2013, Appellant moved for judgment of acquittal at the close of the evidence, which the trial court denied. The jury found Appellant guilty as charged, and after a penalty phase, recommended a sentence of 22 years on the murder charge; 10 years on each of the ACA charges; and 17 years on the UUW charge. The trial court entered sentence accordingly, with all sentences to run consecutively to each other except for the 10–year sentence on the Count II ACA charge which was to run concurrently to the other sentences, for a total of 49 years' imprisonment.

Appellant filed a motion for new trial, which included allegations of error in the denial of his motion to suppress the statements he made upon arrest and the denial of his motion for judgment of acquittal at the close of evidence. The trial court denied the motion for new trial. This appeal follows. Appellant presents three points on appeal.

In his first two points, Appellant claims the trial court erred in overruling his motion for judgment of acquittal at the close of evidence because the State did not prove beyond a reasonable doubt his guilt as an accomplice because McKinney's statements constituted insufficient evidence he aided or encouraged McDavis in shooting Dorian and without those statements there was no evidence he drove the vehicle or knew McDavis had a gun.

This Court reviews the denial of a motion for acquittal to determine if the state adduced sufficient evidence to make a submissible case. State v. Sistrunk, 414 S.W.3d 592, 596 (Mo.App.E.D.2013). We will affirm a trial court's denial of a motion for judgment of acquittal if, at the close of evidence, there was sufficient evidence from which reasonable persons could have found the defendant guilty of the charged offense. Id. In so reviewing, this Court accepts as true all of the evidence favorable to the State, including all favorable inferences drawn therefrom, whereas all contrary evidence and inferences are disregarded. Id. We do not weigh the evidence, but rather merely determine whether there was sufficient proof, including any incriminating evidence developed during the defendant's case, from which the trial court could reasonably have found the defendant guilty. Id.

Appellant's convictions were based on accomplice liability. “The law of accessory liability emanates from statute, as construed by the courts.” State v. Barnum, 14 S.W.3d 587, 590 (Mo.banc 2000). Although Missouri at one time made a distinction between principals and accessories to crime, Missouri has since eliminated such a distinction with respect to accomplice liability; therefore, all persons who act in concert to commit a crime are equally guilty. Sistrunk, 414 S.W.3d at 596–97.

Section 562.041.1(2) ⁴ provides that a person is criminally responsible for the conduct of another when “[e]ither before or during the commission of an offense with the purpose of promoting the commission of an offense, he aids or agrees to aid or attempts to aid such other person in planning, committing or attempting to commit the offense.” Accordingly, “[t]o make a submissible case of accomplice liability, the State must show that the defendant associated himself with the venture or participated in the crime in some manner, but the State need not show that the defendant personally committed every element of the crime.” State v. Young, 369 S.W.3d 52, 55 (Mo.App.E.D.2012). Any evidence, either direct or circumstantial, demonstrating affirmative participation in the crime charged and committed is sufficient to support a conviction. Sistrunk, 414 S.W.3d at 597.

McKinney's statements were legally sufficient to connect Appellant to the crime. Officer Kloos testified McKinney told him that on the night in question, Appellant was driving him and McDavis around; they left a party where there had been a shooting to look for “anyone they were into it with,” including Dorian's twin brother Bit; and when they saw a car they...