State v. Shepherd

Decision Date26 August 2021
Docket NumberNo. SD 36741,SD 36741
Citation630 S.W.3d 896
Parties STATE of Missouri, Respondent, v. Anthony Jamal SHEPHERD, Appellant.
CourtMissouri Court of Appeals

Appellant's Attorney: Carol Jansen, of Columbia, Missouri.

Respondent's Attorneys: Eric S. Schmitt, Attorney General, and Daniel N. McPherson, Assistant Attorney General, of Jefferson City, Missouri.

WILLIAM W. FRANCIS, JR., P.J.

Anthony Jamal Shepherd ("Shepherd") was convicted, following a jury trial, of one count of kidnapping in the second degree, and one count of unlawful use of a weapon. In one point on appeal, he contends that "the trial court erred in ordering [him] to register as a sex offender[.]" This point has merit and is granted. The trial court erred during sentencing by orally ordering Shepherd to register as a sex offender. Because that order was not incorporated into the written judgment, however, the judgment itself is correct and is affirmed.

Facts and Procedural Background

On December 7, 2017, Shepherd and Victim were involved in a physical altercation in an extended-stay motel room in Springfield. The police were called, and Shepherd was arrested.

On December 8, 2017, Shepherd was interviewed by detectives with the Springfield Police Department, after being Mirandized .1 Shepherd indicated that Victim came to his room to smoke marijuana. Victim came in, she took her shoes and jacket off, they both sat on his bed, and they began smoking marijuana, drinking alcohol, and "watching a game." Shepherd stated they moved up to lean against the headboard and a little while after that, Victim lay face down to watch television. At that time, he began rubbing Victim's buttocks and genitals "at the same time for a while," and Victim objected saying, "No, I don't want to do this." Shepherd claimed that he immediately stood up and stopped touching Victim, but also decided that if Victim was "not gonna give me what I want[ed], I'm definitely not gonna give [her] what [she] want[ed]."2

Shepherd said Victim then tried "to grab my weed and the liquor" from a bedside dresser.3 Shepherd claimed that at that moment, Victim "got to screaming, she got to saying ‘ow,’ and yelling ‘get off me’ ... and I'm like, ‘I'm not touch ... I'm not hurting you[.] " Shepherd said he stopped Victim from taking his weed by "grabb[ing] it out of her hand." Shepherd stated, "I was never yelling. I was not the one yelling. The only time I yelled I was like ‘why are you yelling, why are you doing this.’ That's the only time I said anything to her." When a detective suggested to Shepherd, "You were maybe yelling ‘shut the fuck up[,] " Shepherd replied, "Yeah, I might have said that. She's talking about ‘ow, why are you hurting me?’ C'mon now, I already knew where that was going."

Shepherd stated that he immediately unlocked and opened his door to the hallway, threw Victim's lighter into the hallway, and "was going to throw the beer cans out there, but I was like ‘I might as well keep these.’ " He then walked back into his room, at which time Victim got up from the bed, and Shepherd walked Victim into the hallway. Shepherd claimed the only time he got physical with Victim was when he "grabbed" the marijuana out of her hand, and when he gave her a "little nudge" out the door.

When asked about the handgun found in his room, Shepherd admitted to having a handgun, but stated he had the handgun for protection because in Tennessee, where he was from, that is what you did. Shepherd stated that when Victim came into his room, he placed the handgun between the bed railing and mattress, and it remained there the entire time Victim was in his room.4

Shepherd was charged, by second amended information, with attempted rape in the first degree (Count I), pursuant to section 566.030; the class D felony of kidnapping in the second degree (Count II), pursuant to section 565.120 ; the class D felony of assault in the second degree (Count III), pursuant to section 565.052; the class E felony of unlawful use of a weapon (Count IV), pursuant to section 571.030; and the class D felony of stealing a firearm (Count V),5 pursuant to section 570.030.1(3).6

A jury trial commenced on December 3, 2019. Victim testified that she was living with her boyfriend in an extended-stay motel, and that Shepherd lived across and down the hall. Victim indicated that she asked a woman she knew in passing where she could obtain marijuana, and that the woman told Victim to go to Shepherd's room. Victim testified that when she went to Shepherd's room, the two talked and smoked marijuana on Shepherd's bed. Victim indicated that Shepherd asked her to stay the night with him, at which time she became uncomfortable and got up from the bed. She testified that Shepherd grabbed her and threw her back on the bed, and rubbed her buttocks and genitals over her clothes. Victim indicated that she protested, and that Shepherd told her to "shut the fuck up." Shepherd then pulled down the back of her pants, at which time she begged Shepherd to stop and started screaming.

Victim testified that Shepherd then grabbed a gun from under a pillow and hit her in the head and neck with it several times while she was still face down on the bed. Victim stated that she was able to get up and walk toward the door, but Shepherd grabbed her, pushed her down, put the gun barrel in her mouth, and again told her to "shut the fuck up." Victim said that she begged him to stop, and "screamed really loud[,]" at which time Shepherd got off of her, "ran [her] to the door and at gunpoint and told [her] to get the fuck out and, if [she] ever told anybody, he'd kill [her]."

Corporal Nathan Worland ("Corporal Worland"), of the Springfield Police Department, testified that in a search of Shepherd's room, marijuana was observed in several areas of the room, and a 9 millimeter black semi-automatic handgun was found in a trash can. A chambered round and a loaded magazine were removed from the gun. The gun was cocked and ready to fire. Officer Worland also took pictures (admitted as exhibits during the State's case in chief) of the two red lines on the left side of Victim's neck measuring 3-4 centimeters, and bruising on her right arm.

Courtney Workman ("Workman"), a DNA criminalist with the Missouri State Highway Patrol Crime Lab, testified she tested swabs from the muzzle of the 9 millimeter handgun, and that the DNA from the muzzle matched Victim's DNA. Her lab report to this effect was admitted as State's Exhibit 43.

Shepherd testified in his own defense. He testified he met Victim shortly after he moved into the motel on December 1, 2017, that the two had subsequently met up and smoked marijuana together on several occasions, and that Victim had been inside his room multiple times before the charged incident. He stated that Victim came to his room on December 7 because she had gotten into an argument with her boyfriend earlier in the day and needed something to relax. He had already been drinking and smoking marijuana before Victim arrived. Shepherd admitted to rubbing Victim's buttocks and genitals on top of her clothes, but only after she lay down on her abdomen in close proximity to him to watch television. He claimed that Victim stated she did not "want to do this anymore" and asked him to stop, at which time he went to the bathroom. When he returned, he found Victim trying to steal his "drugs and alcohol" by "stuffing [them] into her pockets[,]" and that he "snatched" the drugs out of her hand.

Shepherd testified that at this time, Victim started yelling "ow" and "Get off me[,]" and that Victim's cries carried over the sound of his television. Shepherd indicated that he then began "thinking she got to get out of here[,]" and told Victim to leave his room. He grabbed her arm and physically walked her to the door, then "undid the top lock, ... undid the deadbolt, [and] I pushed -- I nudged her out."

Shepherd admitted to having a gun in his room, and that he threw it in the trash can after his altercation with Victim. He testified that he kept the gun for protection because he sold drugs, but claimed that he never struck Victim with the gun and did not know how her DNA came to be on the muzzle. Shepherd admitted that he wanted to have sex with Victim "once everything started in motion," but claimed that he stopped trying to have sex with Victim after she told him "No."

The jury convicted Shepherd of kidnapping in the second degree (Count II), and unlawful use of a weapon (Count IV). The jury found Shepherd not guilty of attempted rape in the first degree (Count I), and not guilty of assault in the second degree (Count III).

Shepherd waived jury sentencing, and did not file a motion for new trial. At the sentencing hearing, the following colloquy occurred concerning whether the trial court should order Shepherd to register as a sex offender:

[PROSECUTOR]: The defendant would also need to register as a sex offender under 589.414, Subsection 5(d). That would be a Tier 1 sex offender registration for kidnapping in the second degree as the primary motivation was a sexual offense.
As a Tier 1 sex offender, the defendant would need to register annually on his birthday and then would be under the sex offender registration requirements for 15 years. If he complied with all sex offender registration requirements, after a period of ten years, he could apply for a reduction of time of five years.
....
THE COURT: Mr. Shepherd, do you have anything you want to say to the Court?
THE DEFENDANT: Yes, sir. I just -- Your Honor, this whole time I've pleaded my innocence and everything, and I just -- the prosecutor did their job or whatever, and I was found not guilty of the first two -- the other two charges, and I don't understand why they keep being brought up, why I'm trying to be labeled as a sex offender and all that.
Like I said, I was found not guilty by a jury court, so I
...

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