State v. Rhymer
| Decision Date | 13 November 2018 |
| Docket Number | WD 80953 |
| Citation | 563 S.W.3d 714 |
| Parties | STATE of Missouri, Respondent, v. James N. RHYMER, Appellant. |
| Court | Missouri Court of Appeals |
Nathan J Aquino, Jefferson City, MO, Counsel for Respondent.
Damien S De Loyola, Kansas City, MO, Counsel for Appellant.
Before Division Three: Gary D. Witt, Presiding Judge, Cynthia L. Martin, Judge, Anthony Rex Gabbert, Judge
James N. Rhymer appeals a judgment entered upon a jury verdict finding him guilty of second-degree murder pursuant to Section 565.021,1 first-degree assault pursuant to Section 565.050, kidnapping pursuant to Section 565.110, and three counts of armed criminal action pursuant to Section 571.015. He asserts three2 points on appeal. He contends that the circuit court, 1) erred in entering a judgment of conviction on Count V, kidnapping, as there was insufficient evidence he removed Corey Cornejo for the purpose of facilitating an assault, 2) erred in entering a judgment of conviction on Count VI, armed criminal action, as there was insufficient evidence he committed the underlying felony of kidnapping, and 3) plainly erred in erroneously instructing the jury regarding the kidnapping charge. We affirm in part and reverse in part.
In the light most favorable to the verdicts, the evidence at trial showed that on November 28, 2014, Raymond Cornejo was at his girlfriend’s home. James Rhymer pulled up in a four-door pickup truck and asked Raymond to go with him to see Raymond’s brother, Corey Cornejo.3 Raymond went with Rhymer to the hotel where Corey was staying. Rhymer asked Raymond to wait in the truck while Rhymer got Corey. Corey owed Rhymer $1500 for methamphetamine that he was supposed to sell but had used instead. Corey knew Rhymer had been looking for him; Rhymer made numerous calls to Corey’s cell phone and left messages with Corey’s brother and other individuals. Rhymer, Raymond, and Corey then went to David Mendez’s house. Corey testified that he did not know what Rhymer wanted with Mendez. Rhymer asked Raymond to wait in the truck while they got Mendez. Rhymer asked Corey to go to the door to get Mendez to come outside. Corey had known both Rhymer and Mendez for approximately fifteen years. Corey and Mendez were best friends. Corey testified that he did what Rhymer told him because Rhymer had a gun; Rhymer had shown Corey the gun and had pointed the gun at him.
Mendez was at the door when Corey reached it. They were told by Rhymer to go toward the basement. Mendez’s bedroom was in the basement. When the three reached the basement, Kristy Robinson, Pebbles Harr, and a little girl were all present; Kristy Robinson was Mendez’s niece and Pebbles Harr was Mendez’s girlfriend. As the men entered the basement, Kristy was bent over a pile of laundry trying to find clothing. While searching, Kristy looked up and saw an unknown man (whom she later identified as Rhymer) standing in front of her. He ordered her to go to another room. Annoyed, Kristy ignored him and went back to looking for her clothing. Rhymer hit her in the back of the head with his gun and the gun fired. Kristy thought she had been shot; the back of her head was numb, felt like it was on fire, and she could feel blood. She immediately followed Rhymer’s orders and went to the other room and laid on the bed. She saw Pebbles, Corey, and Mendez. Rhymer was waving the gun back and forth and demanding they sit down. According to Kristy, Rhymer was extremely angry, had the gun pointed, and was demanding, "I want my sh* *." It then became silent as they could hear someone descending the stairs.
After being woken by the gunshot, Ola Margaret Mendez, Mendez’s mother (Kristy’s grandmother) came down the stairs and demanded to know what the noise was. She was told it was a firecracker. Rhymer smirked at Ola Margaret, commenting about the firecracker. Ola Margaret asked him who he was and told him to leave. Rhymer just stood there. Ola Margaret told him she was calling the police. Rhymer said, "Come on," and Corey and Mendez followed him. Ola Margaret told Mendez not to go anywhere. He responded, "Oh, I got to go upstairs." Ola Margaret thought Mendez was going to let Rhymer and Corey out and lock the door.
After the men left, Kristy was crying and told Ola Margaret she had been shot. Ola Margaret ran upstairs to call the police. As soon as she got upstairs, Ola Margaret saw her eight-year-old great-granddaughter "standing there crying her eyes out." She told Ola Margaret, "Grandma, that guy had a gun in Uncle Cuko’s4 back and made him go out the door."
Corey was asked at trial if he was "leaving at gunpoint" when he exited Mendez’s home. He testified that, although Rhymer’s gun was not visible because he had put it in his hoodie, the threat was there. Corey, Rhymer, and Mendez got into Rhymer’s truck after exiting the residence; Raymond was still waiting in the truck. Rhymer drove, Corey was next to him in the front passenger seat, Raymond was behind Rhymer in the back driver’s-side seat, and Mendez was behind Corey in the back passenger-side seat. Corey testified that, as they drove away from the Brookside Avenue residence
Soon thereafter, Rhymer asked Mendez if he had taken the keys to his truck. The two argued. When Rhymer reached a stop sign at 12th Street and Ewing, Rhymer pulled out a gun and pointed it at Mendez.
Mendez pushed the gun away and told Rhymer not to point it at his face. Corey testified, Rhymer began to climb from the front seat toward Mendez. The two continued to exchange words. Rhymer pointed the gun at Mendez again, and Mendez again pushed it away. Rhymer shot Mendez in the left thigh. Rhymer and Mendez struggled for the gun. Mendez was able to get the gun from Rhymer and screamed at Corey to take the gun. Corey had his back to the front dash of the truck as far as he could go and was yelling at his brother Raymond to get out of the truck. Raymond exited the truck.
Corey took the gun from Mendez. While taking the gun, he dropped the clip. Rhymer took the gun from Corey and shot Mendez in the head behind his left ear. The bullet exited Mendez’s right ear. The bullet to Mendez’s head killed Mendez immediately.
Mendez slumped forward. Rhymer suggested going "back to the house." Corey told Rhymer that they could not go back to the house – they needed to leave and "get rid of [Mendez]." Rhymer and Corey drove around for a while and ended up in Raytown off 350 Highway. Rhymer pulled into a gas station and Rhymer told Corey to go inside and purchase cigarettes and something to drink. Rhymer met Corey in the bathroom and told him to not touch anything, and if he already had to wipe it down. Rhymer put gas in the truck. He also filled a cup with gasoline and told Corey to pour the gasoline on Mendez. Corey complied. The two drove to Rhymer’s apartment but parked the truck a couple of blocks away. Rhymer told Corey that they would clean out the truck and they did. Rhymer told Corey that they were going to his apartment; Corey was to get undressed, shower, and Rhymer would provide him a change of clothes.
Rhymer and Corey met up with Rhymer’s roommate, Anthony McCubbins. Corey and McCubbins followed behind Rhymer’s truck as Rhymer led them to a rural area on a gravel road. Rhymer drove off the gravel road. Corey could not see anything as it was dark and the truck lights were off. He could only hear movement in the grass. Rhymer got back in his truck and told Corey and McCubbins to follow him up the road. Rhymer’s truck disappeared in the dark. Corey told McCubbins, Corey and McCubbins sat there idle for ten or fifteen minutes. Corey told McCubbins to leave and they started down the road leaving Rhymer behind. McCubbins then turned back telling Corey, "If I leave him, he'll kill me." Rhymer was waiting for them at the side of the road.
Rhymer, Corey, and McCubbins drove back to the city. While passing over a bridge, Rhymer told Corey to throw the clip of the gun into the river, and then throw the gun into the river. Corey complied. Rhymer was hungry so they stopped at Taco Bell. Corey told Rhymer he wanted to go home. Rhymer said,
Upon arriving home, Corey was told the police were looking for him. Corey walked outside to smoke a cigarette and Ola Margaret pulled up in a vehicle, frantically asking about her son. Corey was unable to tell her that Mendez was dead and told her he did not know where Mendez was. Corey had just shared Thanksgiving dinner with Ola Margaret and her family the previous day. Ola Margaret told Corey to get in her van because she was taking him to talk with detectives. Corey spoke with police and told them Mendez was dead. He led police to all the locations he and Rhymer had been. Corey led police to a field in rural Cass County where Mendez’s body was located, and led police to a field approximately two miles away where a burned-up vehicle was discovered. The vehicle was a four-door pickup truck that was completely burned leaving the make and model unidentifiable.
The State charged Rhymer with first-degree murder (for shooting and killing Mendez), first-degree assault (for striking Robinson with a handgun), kidnapping (for unlawfully removing Corey without his consent from a residence for the purpose of committing the felony of assault of David Mendez), and three counts of armed criminal action (for committing the other three counts with a dangerous instrument or deadly weapon). Rhymer was charged as and found to be a persistent offender,...
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