State v. Sander
| Docket Number | WD85685 |
| Decision Date | 26 December 2023 |
| Parties | STATE OF MISSOURI, Respondent, v. NANCY SANDER, Appellant. |
| Court | Missouri Court of Appeals |
1
STATE OF MISSOURI, Respondent,
v.
NANCY SANDER, Appellant.
No. WD85685
Court of Appeals of Missouri, Western District
December 26, 2023
Appeal from the Circuit Court of Vernon County The Honorable James Kelso Journey, Judge.
Before Division Two: Janet Sutton, P.J., and Alok Ahuja and Mark D. Pfeiffer, JJ.
Alok Ahuja, Judge.
Nancy Sander was convicted of first-degree murder following a jury trial in the Circuit Court of Vernon County. Her conviction arose from an incident in September 2018 in Osceola, in which Sander's ex-husband shot and killed Sander's son-in-law, and then killed himself. Sander was convicted of first-degree murder on an accomplice liability theory. She appeals, arguing that the evidence was insufficient to convict her; that the circuit court committed instructional error; and that the court erred in overruling her objections to the State's evidence and closing argument. We affirm.
Factual Background
On September 7, 2018, Charles Sander shot and killed the Victim, an adult male, at a convenience store in Osceola; Charles[1] then shot and killed himself.
The defendant, Nancy Sander, had previously been married to Charles. They had a daughter, Elizabeth Kilgore. Kilgore married the Victim in 2014, and they had a son together.
The Victim and Kilgore separated in July 2017. During the couple's dissolution-of-marriage case, Kilgore alleged that the Victim had abused her and their son. After the divorce, Kilgore and the Victim shared custody of their son. They would conduct custody exchanges at a convenience store in Osceola approximately fifteen minutes from where Kilgore lived with Sander. Sander regularly attended these custody exchanges. Charles lived in Twin Bridges, approximately three hours from Sander's home and from the convenience store where the shooting occurred.
On September 6, 2018 - the day before the Victim's murder - Kilgore called Charles, and the two spoke for approximately ten minutes. Charles subsequently called one of his neighbors and informed him that he was going to the home which Sander and Kilgore shared. The neighbor testified that Charles "sounded like he'd been maybe upset or crying or something" and "seemed off." Charles "made the comment how, I don't know if I'll be back."
Early the next morning, Sander drove with Charles to the custody exchange in Osceola. Video footage from several security cameras at the convenience store was introduced in evidence at trial, and depicts what transpired. The video
reflects that Sander exited the vehicle and went inside the convenience store to purchase a beverage. She returned to the vehicle, and stood next to the passenger door where Charles was seated, apparently speaking to him. When the Victim arrived, Sander stood outside the store and spoke with him. At one point, Sander moved from the Victim's right side to his left side, causing him to turn his body to continue their conversation. Because he turned, the Victim had his back to the vehicle where Charles was seated, while Sander was facing it. Thus, while Sander would have been able to see Charles exit the vehicle and approach, the Victim would not.
Charles approached where Sander and the Victim were talking. As he did so, Sander began to move away. Charles initially shot the Victim at least once, and he and the Victim engaged in a physical struggle. As the Victim fell to the ground, Charles shot the Victim multiple additional times. The evidence at trial indicated that the Victim had been shot a total of seven times. He died from his wounds.
After shooting the Victim, Charles walked to the side of the building and shot and killed himself.
On the video, it appears that Sander may have flinched, or braced herself, immediately before the Victim reacted to being shot for the first time. She continued to distance herself, at a walking pace and without looking back, as the struggle continued. Sander went into the convenience store and reported to the clerk that "he'd been shot," although from the video it did not appear that she had actually seen what had happened. An employee at the convenience store testified that Sander's demeanor was "frantic" at first, but that after she entered the store,
"[s]he seemed to calm quite a bit and got kind of cold." It appeared that Sander stared directly into a security camera behind the cash register after she reported the shooting.
Sander gave the police her cellular phone, and her consent to search its contents. Police extracted the phone's data. The data on the phone reflected that, in the two months before the murder, the phone had been used to search degrees of homicide in Missouri; the definition of manslaughter and second-degree murder; how to cause a fatal caffeine overdose; how to hide a child who has been abused; and parental kidnapping. The officer who extracted the data did not recall whether he need to use a password to access the phone.
A police officer spoke with Sander on the morning of September 7. Sander told the officer that she had gone inside the convenience store to get a drink, and falsely stated that she was still inside the store when the first shots were fired.
On September 12, 2018, Sander returned to the convenience store. A police officer observed her outside, staring at the top of the building where security cameras would be mounted. The officer testified that Sander "kind of glanced my way, and then, all of a sudden, [was] looking for stuff in the car." As the officer entered the convenience store, Sander began looking up again. Sander's behavior was sufficiently noteworthy that the officer recorded and checked the license plate number of her vehicle to determine Sander's identity.
A convenience store employee who interacted with Sander on September 12 testified that her demeanor "seemed happy."
Prior to the shooting, Kilgore worked as a jailer at the St. Clair County Detention Center. Evidence at trial indicated that she had attempted to persuade
another jail employee, and two inmates, to kill the Victim because of their ongoing custody disputes. Kilgore's employment at the jail had been terminated due to those conversations, and her improper fraternization with inmates. The gun Charles used to shoot the Victim had been purchased by the Victim, and was associated with Kilgore. Kilgore was separately convicted of first-degree murder in connection with the Victim's death. See State v. Kilgore, No. 18SR-CR00437 (Cir. Ct. of Henry County); State v. Kilgore, No. WD84526, 654 S.W.3d 915 (Mo. App. W.D. Nov. 15, 2022) (unpublished order affirming Kilgore's conviction on direct appeal).
Sander was charged with the first-degree murder of the Victim on the theory that she aided and encouraged Charles' shooting of the Victim. The case was tried by a jury on July 18-20, 2022. The only verdict director submitted to the jury was for murder in the first degree; the jury was not instructed on any lesser-included offenses. The circuit court discussed the possibility of submitting lesser-included offense instructions with counsel on the record, but Sander's counsel stated that he did not believe any lesser offenses were applicable given the nature of the State's evidence.
The jury found Sander guilty as charged. She was sentenced by the court to life imprisonment without the possibility of parole.
Sander appeals.
Discussion
Sander raises five Points on appeal. She argues that the evidence was insufficient to convict her; that the court erred in failing to instruct the jury on
any lesser-included offenses; and that the court erred in overruling her evidentiary objections, and objections to the State's closing argument.
I.
Sander's first Point argues that the evidence at trial was insufficient to sustain her conviction of first-degree murder.
"Appellate review of the sufficiency of the evidence to support a criminal conviction is limited to determining whether there is sufficient evidence from a which a reasonable [fact finder] could have found the defendant guilty beyond a reasonable doubt." State v. Emmanuel, 667 S.W.3d 664, 671 (Mo. App. W.D. 2023) (citation and internal quotation marks omitted). We give great deference to the fact finder's ability to determine the credibility of witnesses, weigh the evidence, and resolve conflicts in testimony, and we will not re-weigh the evidence. Id. "'All evidence and inferences favorable to the State are accepted as true, and all evidence and inferences to the contrary are rejected.'" State v. Gibbons, 629 S.W.3d 60, 92 (Mo. App. W.D. 2021) (quoting State v. Porter, 439 S.W.3d 208, 211 (Mo. 2014)). This standard applies even where evidence of guilt is circumstantial. State v. Martin, 291 S.W.3d 269, 275 (Mo. App. S.D. 2009).
"A person commits the offense of murder in the first degree if he or she knowingly causes the death of another person after deliberation upon the matter." § 565.020.1.[2] "Deliberation" is defined as "cool reflection for any length of time no matter how brief." § 565.002(5). "[D]eliberation may be inferred from the circumstances surrounding the crime, and such an inference is supported by a lack of concern for and a failure to attempt to aid the victim."
State v. Alexander, 505 S.W.3d 384, 393 (Mo. App. E.D. 2016). If committed by an adult, murder in the first degree is a class A felony that carries a punishment of either death or life imprisonment without eligibility for parole. § 565.020.2.
Where a defendant is tried for first-degree murder under a theory of accomplice liability, the State makes a submissible case "if it introduces evidence from which a reasonable juror could have concluded beyond a reasonable doubt that, (1) the defendant committed acts which aided another in killing the victim; (2) it was the defendant's conscious purpose in committing those acts that the victim be killed; and (3) the defendant committed the acts...
To continue reading
Request your trial