State of Missouri v. Keith B. Hudson , 574 S.W.3d 796 ( 2019 )

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
STATE OF MISSOURI, )
Respondent, )
)
v. ) WD81331
)
KEITH B. HUDSON, ) FILED: May 14, 2019
Appellant. )
Appeal from the Circuit Court of Jackson County
The Honorable Bryan E. Round, Judge
Before Division Four: Karen King Mitchell, C.J., and
Victor C. Howard and Alok Ahuja, JJ.
Following a jury trial in the Circuit Court of Jackson County, Appellant
Keith Hudson was convicted of robbery in the first degree and receiving stolen
property. Hudson was sentenced to terms of imprisonment of fifteen years and
seven years, respectively, with the sentences ordered to run concurrently. Hudson
appeals. He asserts two Points, which challenge only his conviction for first-degree
robbery. First, Hudson argues that the evidence was insufficient to support his
conviction. Second, he argues that the circuit court plainly erred by submitting a
verdict directing instruction which omitted a required definition.
We hold that the evidence was sufficient to support Hudson’s robbery
conviction. We conclude, however, that the circuit court plainly erred by failing to
include the required definition of a “dangerous instrument” in the verdict director
for the robbery charge, when that element was seriously disputed at Hudson’s trial.
We accordingly reverse Hudson’s conviction for first-degree robbery, and remand
the case to the circuit court for further proceedings on the robbery charge. Because
the instructional error relates to the element which differentiates first-degree from
second-degree robbery, and because the evidence was otherwise sufficient to support
Hudson’s conviction, on remand the State will have the option of retrying Hudson
for first-degree robbery, or agreeing to entry of a conviction for the lesser-included
offense of second-degree robbery.
Factual Background1
On November 1, 2016, sometime after 9:00 a.m., Officer Kenny Miller
responded to a disturbance call at a McDonald’s Restaurant on Broadway Street in
Kansas City. An employee called the police because Hudson reportedly refused to
leave the restaurant after complaining that a cup of coffee he had purchased was
too cold. When Officer Miller arrived, Hudson was in the parking lot. Officer Miller
spoke with Hudson, patted him down for weapons, and ran a computer check on
Hudson’s identification. Officer Miller let Hudson go after it was confirmed that he
had no outstanding warrants.
A little before 10:00 a.m., the Victim, an adult female, pulled her Chevrolet
Tahoe into a Shell gas station across the street from the McDonald’s, to get a cup of
coffee and gasoline. After pulling up to the pump, the Victim observed a man,
whom she later identified as Hudson, standing near the gas station. While the
Victim was sitting in her vehicle looking in her purse for money, Hudson
approached and opened the driver’s door of the vehicle. The Victim testified that
Hudson put “something” to her side, which felt “like a sharp object”; she thought the
object was a weapon. The Victim testified that she felt “real[ly] scared,” and in fear
for her life.
1 “On appeal from a jury-tried case, we review the facts in the light most
favorable to the jury’s verdict.” State v. Rice, 504 S.W.3d 198, 200 n.3 (Mo. App. W.D. 2016)
(citation omitted). Because Hudson does not challenge his conviction for receiving stolen
property, we omit the facts relevant only to that offense.
2
Hudson told the Victim to get out of the vehicle. The Victim complied. As
she was exiting the vehicle, the Victim reached for her purse, but Hudson “told [her]
to leave [her] purse and just get out.” After the Victim got out, Hudson drove off in
her vehicle. The Victim ran into the gas station, and someone called the police.
Officer Charles Hill responded to the call. The Victim described the robber as
a black male, medium build with a lazy left eye, wearing blue jeans and dark
clothing. Officer Hill notified a dispatcher of the Victim’s description of the robber
and of the stolen vehicle.
Less than five minutes after leaving the McDonald’s, Officer Miller heard
from dispatch that a robbery had occurred at the gas station across the street. The
description of the robber matched Hudson, so Officer Miller reported the
information he knew about Hudson to dispatch, and drove to the gas station.
Less than ten minutes after Officer Hill responded to the call at the gas
station, Officer Kevin Eifert notified dispatch that he saw the Victim’s vehicle less
than two miles away, near 45th Street and Paseo Boulevard. The vehicle turned
into the parking lot of a cellular phone store. Hudson exited the vehicle and walked
into the store. After verifying that the vehicle belonged to the Victim, Officer Eifert
arrested Hudson in the store. Hudson was searched, and officers found the keys to
Brown’s vehicle in his left coat pocket. Officers found no weapon on Hudson’s
person when they searched him incident to his arrest.
Officer Hill drove the Victim to the cell phone store where Hudson was
detained. At the store, the Victim identified her vehicle, and identified Hudson as
the person who had robbed her. Later that day, the Victim gave a statement to a
detective, in which she stated that, although she could not be sure, she believed a
gun was held to her side. At trial, the Victim testified that she had never met
Hudson before he robbed her on November 1, 2016.
3
Hudson was charged with robbery in the first degree and receiving stolen
property.
The case proceeded to a jury trial. In addition to admitting the evidence as
outlined above, the State introduced into evidence a recording of surveillance video
from the gas station where the robbery occurred. Because the surveillance video
was shot from a distance, and because Hudson’s interaction with the Victim
occurred on the far side of her vehicle, the video does not reveal any details of their
interaction, and in particular whether Hudson wielded any sort of object or weapon
during the theft.
At trial, Hudson testified in his own defense. He testified that he first met
the Victim the day before the robbery, on October 31, 2016, when she and a male
companion asked him and a male associate if they wanted to buy jewelry and
Fentanyl pills. Hudson was dealing methamphetamine at the time. He testified
that he told the Victim that he did not want to buy the items, nor did he want to
exchange drugs for the items. Instead, he offered the Victim drugs in exchange for
letting him rent her vehicle or use her credit card. Hudson testified that the Victim
did not agree to this exchange at that time.
Hudson testified that, the next day, he was at the Shell gas station when the
Victim pulled in, and waved for Hudson to come over and talk to her. Hudson did
not immediately walk over because he saw police nearby. After the police left the
area, Hudson approached the Victim’s vehicle. Hudson testified that, after he
opened the vehicle’s door, the Victim offered to let him rent her vehicle and use her
credit card in exchange for 1.6 grams of methamphetamine. Hudson testified that
he agreed to the transaction and gave the Victim the methamphetamine she
requested. As the Victim got out of the vehicle, Hudson testified that he asked her
if she wanted her purse; according to Hudson the Victim stated that there was
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nothing of value in the purse, and walked away. After the Victim left, Hudson
testified that he drove to the cell phone store where he was arrested.
Instruction No. 8 was the verdict director for robbery in the first degree. In
relevant part, the instruction provided that, to convict Hudson for first-degree
robbery, the jury was required to find that, “in the course of taking the property, the
defendant displayed or threatened the use of what appeared to be a deadly weapon
or dangerous instrument.” Although Note on Use 3 to MAI-CR 3d 323.02 required
that the term “dangerous instrument” be defined, Instruction No. 8 failed to do so.
Hudson did not object to Instruction No. 8 prior to its submission to the jury.
The jury found Hudson guilty of robbery in the first degree and of receiving
stolen property. The circuit court found Hudson to be a prior and persistent
offender, and sentenced him to a fifteen-year term of imprisonment for the robbery
offense, and to seven years for receiving stolen property, with the sentences ordered
to run concurrently.
Hudson appeals.
Discussion
I.
We consider Hudson’s two Points out of order. In his second Point, Hudson
argues that there was insufficient evidence to convict him of robbery in the first
degree.
To determine whether the evidence was sufficient to support a conviction, we
do not assess the credibility of the evidence, but instead accept as true all evidence
tending to prove guilt together with all reasonable inferences that support the
verdict. State v. Naylor, 510 S.W.3d 855, 858–59 (Mo. 2017).
This is not an assessment of whether this Court believes that the
evidence at trial established guilt beyond a reasonable doubt but
rather a question of whether, in light of the evidence most favorable to
the State, any rational fact-finder could have found the essential
5
elements of the crime beyond a reasonable doubt. In reviewing the
sufficiency of the evidence supporting a criminal conviction, an
appellate court does not act as a “super juror” with veto powers but
gives great deference to the trier of fact.
Id. at 859 (citations and internal quotation marks omitted).
Section 569.020.12 provides in relevant part that
A person commits the crime of robbery in the first degree when
he forcibly steals property and in the course thereof he . . .
....
(4) Displays or threatens the use of what appears to be a
deadly weapon or dangerous instrument.
Hudson argues that there was insufficient evidence of two of the elements of
first-degree robbery under § 569.020.1(4). First, he argues that there was
insufficient evidence that he forcibly stole property from the Victim. Second,
Hudson argues that there was insufficient evidence that he threatened the use of
what appeared to be a deadly weapon or dangerous instrument. We examine the
evidence supporting each element in turn.
The evidence was sufficient to allow a reasonable fact-finder to find that
Hudson forcibly stole the Victim’s property. Section 570.030.1 defines “stealing” as
the appropriation of property “of another with the purpose to deprive him or her
thereof, either without his or her consent or by means of deceit or coercion.” A
person “forcibly steals” “when, in the course of stealing . . . he . . . threatens the
immediate use of physical force upon another person for the purpose of . . .
[p]reventing . . . resistance to the taking of the property . . . .” § 569.010(1).
Hudson argues that there was insufficient evidence that he threatened to use
physical force against the Victim. When determining the existence of a threat,
courts apply an objective test that examines “whether a reasonable person would
2 Statutory citations refer to the 2000 edition of the Revised Statutes of
Missouri, updated through the 2014 noncumulative supplement.
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believe the defendant’s conduct was a threat of the immediate use of physical force.”
State v. Coleman, 463 S.W.3d 353, 355 (Mo. 2015) (citation omitted). The threat of
physical force “need not be explicit; it can be implied by words, physical behavior or
both.” State v. Neal, 36 S.W.3d 814, 816 (Mo. App. S.D. 2001) (citation omitted).
Courts have found that a defendant impliedly threatened physical force by
“display[ing] a weapon, engag[ing] in behavior that gave the appearance that he
was armed, or us[ing] . . . phrases like, ‘This is a holdup,’ or that it is a ‘stickup.’”
Patterson v. State, 110 S.W.3d 896, 904 (Mo. App. W.D. 2003) (citation omitted); see
also State v. Cassel, 419 S.W.3d 867, 869 (Mo. App. S.D. 2013) (citation omitted).
When viewing the evidence in the light most favorable to the State, there was
sufficient evidence for a reasonable juror to find that Hudson’s actions impliedly
threatened the Victim with the immediate use of physical force, even though he
never explicitly threatened her. Hudson opened the door to the Victim’s car, and
told her to get out of the vehicle. The jury could find that, as he did so, he pressed a
sharp object to the Victim’s side. From the Victim’s perception of a sharp object, the
jury could conclude either that Hudson was actually armed, or that he was
intending to give the appearance of being armed. Further, Hudson ordered the
Victim to leave her purse behind when she attempted to leave the vehicle with it.
This evidence was sufficient to support a finding that Hudson stole the Victim’s
property forcibly. See Coleman, 463 S.W.3d at 355 (jury’s finding of a threat of force
was supported by evidence that the defendant “approached the bank teller [with]
one hand concealed, . . . and directed the branch manager not to move any farther
when she approached to investigate the situation”); Patterson, 110 S.W.3d at 905
(finding evidence sufficient to prove that the defendant “threatened the use of
immediate physical harm upon the store employees by holding his right hand in his
jacket pocket in a manner consistent with having a pistol and by otherwise acting
7
and speaking in a manner consistent with an armed holdup[,]” although defendant
never actually claimed to have a weapon, and never explicitly threatened violence).
There was also sufficient evidence to support a jury finding that Hudson
threatened the use of what appeared to be a deadly weapon or dangerous
instrument. “The distinctive element of robbery in the first degree is the taking of
the property of another by violence or by putting the victim in fear.” State v. Saucy,
164 S.W.3d 523, 527 (Mo. App. S.D. 2005) (citation omitted). Section 569.020.1(4),
under which Hudson was charged, “is concerned with the fear generated by that
which may be neither a deadly weapon nor a dangerous instrument but which is
utilized so as to give the appearance of being such.” State v. Sistrunk, 414 S.W.3d
592, 598 n.3 (Mo. App. E.D. 2013) (citation and internal quotation marks omitted).
Therefore, “the State does not have to show that the defendant actually possessed a
dangerous instrument, only that there was evidence from which the fact finder
could reasonably conclude that the victim believed the defendant was threatening
its use.” State v. Bolthouse, 362 S.W.3d 457, 460 (Mo. App. S.D. 2012) (citation and
internal quotation marks omitted).
Robbery in the first degree may be found where the victim is in
fear even though there was no real possibility of injury. The fact that a
victim perceives there to be a weapon that remains unseen is sufficient
whether or not, in fact, such a weapon exists. Whether or not the
object that is perceived as a deadly weapon or dangerous instrument is
in fact capable of producing harm is unimportant. The threat to use
the object to produce harm transmogrifies it into a dangerous
instrument.
Id. (citation and internal quotation marks omitted). Evidence may be sufficient to
establish the threatened use of what appears to be a deadly weapon or dangerous
instrument “if the defendant . . . made motions indicating he had a concealed
weapon during the course of the robbery . . . .” Id. (citations omitted).
In State v. Simrin, 384 S.W.3d 713 (Mo. App. S.D. 2012), the defendant
robbed his victim by sticking an object through the victim’s car window while the
8
victim was at an automated teller machine. Id. at 716. Evidence later recovered at
the scene, and surveillance video, indicated that the object the defendant
brandished was his cell phone. The Southern District nonetheless found sufficient
evidence to support the defendant’s conviction of first-degree robbery.
[T]he fact that Simrin was not carrying a dangerous instrument is
immaterial based on the facts of this case. Simrin approached [the
victim’s] vehicle and “stuck something through the window and said,
‘Give me the money.’” [The Victim] testified he gave the cash to Simrin
because he “couldn’t tell at the time what [Simrin] had in his hand . . .
if it was a gun, what kind of weapon it was, if anything[;]” he did not
want to “take any chances with this guy” in that his “kids [were] in the
car[;]” he would not have given the money to Simrin if he had not
believed Simrin had a weapon; during the incident he was scared “[n]ot
for himself, [but] for [his] children[;]” and he believed at the time
Simrin had a gun or a taser. . . . The evidence is sufficient whereby a
reasonable juror could have concluded [the Victim] believed Simrin
was threatening to use a dangerous instrument, even though he did
not see such an instrument and such an instrument ultimately did not
exist.
384 S.W.3d at 719–20 (footnote omitted).
The evidence in this case is similar to that in Simrin. Here, the Victim
testified that Hudson placed a sharp object against her side, and demanded her
vehicle and purse. The Victim testified that she was scared and that she thought
Hudson had a weapon, although she could not identify the kind of weapon Hudson
had. The fact that the Victim complied with Hudson’s demands to turn over her
property is further evidence that she believed Hudson was threatening the use of a
dangerous instrument. Saucy, 164 S.W.3d at 527 (“Compliance with the demands
of the robber is indicative of the victim’s fear of the consequences which could have
resulted had he or she not complied.” (citation omitted)).
Because the Victim did not visually confirm what Hudson was pressing
against her side, Hudson argues the object could have been “a seat belt or the door
itself.” This argument ignores our standard of review: we view the evidence, and
9
all reasonable inferences from the evidence, in the light most favorable to the
judgment – we do not view the evidence in a light contrary to the judgment. It was
not necessary for the Victim to visually confirm the dangerous instrument’s
existence, or the nature of the dangerous instrument, nor did a dangerous
instrument need to be found on Hudson’s person when he was arrested.
There was sufficient evidence to support Hudson’s conviction of robbery in
the first degree. Point II is denied.
II.
In his first Point, Hudson argues the trial court erroneously omitted the
definition of a “dangerous instrument” from the verdict director for first-degree
robbery. Hudson concedes that he did not object to the instruction on this basis,
and that he is therefore entitled to review solely for plain error.
A.
“For instructional error to rise to the level of plain error, [Hudson] must
demonstrate that the trial court so misdirected or failed to instruct the jury as to
cause manifest injustice or miscarriage of justice.” State v. Cooper, 215 S.W.3d 123,
125 (Mo. 2007) (citation omitted).
Failing to require the jury to find every fact essential to conviction may
constitute plain error. “‘A verdict-directing instruction must contain each element
of the offense charged and must require the jury to find every fact necessary to
constitute essential elements of [the] offense charged.’” Id. (quoting State v.
Doolittle, 896 S.W.2d 27, 30 (Mo. 1995)). “A violation of due process arises when an
instruction relieves the State of its burden of proving each and every element of the
crime and allows the State to obtain a conviction without the jury deliberating on
and determining any contested elements of that crime.” Cooper, 215 S.W.3d at 126
(citation omitted). Because it is fundamental that the State must be required to
prove, and the jury must be required to find, each element of an offense, it is well-
10
established that “‘[p]lain error exists when an instruction omits an essential
element and the evidence establishing the omitted element was seriously disputed.’”
State v. Zetina-Torres, 482 S.W.3d 801, 811 (Mo. 2016) (quoting State v. Stover, 388
S.W.3d 138, 154 (Mo. 2012)); see also, e.g., State v. Rhymer, 563 S.W.3d 714, 722
(Mo. App. W.D. 2018); State v. Henderson, 551 S.W.3d 593, 600 (Mo. App. W.D.
2018).
The elements of first degree robbery were submitted to the jury in Instruction
No. 8, which was based on MAI-CR 3d 323.02 (now MAI-CR 4th 424.00). The
relevant portion of Instruction No. 8 provided that, to convict Hudson, the jury must
find that “in the course of taking the property, [Hudson] displayed or threatened the
use of what appeared to be a deadly weapon or dangerous instrument.” Instruction
No. 8 did not, however, define the term “dangerous instrument.” This violated Note
on Use 3 to MAI-CR 323.02, which states that when the term “dangerous
instrument” is used in the instruction, “the paragraph defining that term must be
used.” The omitted definition would have advised the jury that a “dangerous
instrument” is “any instrument, article or substance which, under the
circumstances in which it is used, is readily capable of causing death or other
serious physical injury.” The State concedes that it was error to omit this definition
of “dangerous instrument” from Instruction No. 8.
“[T]he absence of a required definition from a verdict-directing instruction
has the potential of effectively omitting an essential element of the offense.” State
v. Jones, 519 S.W.3d 818, 826 (Mo. App. E.D. 2017) (citing State v. Arnold, 397
S.W.3d 521, 529 (Mo. App. S.D. 2013)). “In determining whether the jury
instruction misdirected the jury, an appellate court will be more inclined to reverse
judgments where the erroneous instruction did not merely allow a wrong word or
some other ambiguity to exist, but excused the State from its burden of proof on a
contested element of the crime.” Jones, 519 S.W.3d at 826 (citation and internal
11
quotation marks omitted). Here, the omission of the definition of a “dangerous
instrument” from Instruction No. 8 excused the State from having to prove, and the
jury from having to find, that Hudson threatened the use of an instrument which
appeared to be “readily capable of causing death or other serious physical injury.”
Whether or not Hudson threatened the use of a dangerous instrument was
seriously disputed at trial. First, in his testimony Hudson disputed that any
robbery occurred—instead, according to him, his use of the Victim’s vehicle was part
of a consensual drug deal. The fact that Hudson claimed his use of the Victim’s
vehicle was consensual puts in dispute the State’s claim that he used a dangerous
instrument to misappropriate the vehicle. See State v. Neal, 328 S.W.3d 374, 383
(Mo. App. W.D. 2010) (finding plain error where verdict director for first-degree
robbery omitted “dangerous instrument” element, and the defendant’s “defense was
that [the victim] consented to the entirety of events of that night”); State v. Roe, 6
S.W.3d 411, 415–16 (Mo. App. E.D. 1999) (finding plain error where instruction did
not require jury to find intent to kill to support first-degree murder conviction,
where defendant denied any involvement in the murder; “although Defendant may
not have actively contested the intent element, as it would have been inconsistent
with his theory at trial, we cannot say that the element of intent in this case was in
no meaningful sense a contested element, because Defendant never conceded that
whoever shot [the victim] had the intent to kill him.”).
Beyond denying that any stealing occurred, at trial Hudson also specifically
contested the Victim’s testimony that he had wielded an object, and concerning the
nature of any object. During cross-examination of the Victim, Hudson’s counsel
emphasized that she never actually saw the object Hudson purportedly wielded, but
instead merely “felt some kind of an object in [her] side.” Counsel also emphasized
that the Victim never actually saw any object in Hudson’s hand, and that Hudson
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never expressly threatened to hurt her, and never said he had a weapon or
identified what that weapon was. Counsel continued:
Q. And you are telling us that he had something in his hand
and that is because you felt something in your side, is that right?
A. Yes.
Q. But you weren’t even turning and facing him at the time
that this took place?
A. No.
Q. So it’s kind of an assumption that he had something in his
hand, is that right?
A. Well, I felt something in my side.
Q. You felt something to your side?
A. Um-hum.
Q. Okay. And so you assume that that something was in Mr.
Hudson’s hand?
A. Yes.
Q. Even though you weren’t even turning to look at him to
see whether he was holding something against you or not, is that fair?
A. Yes.
Later, the Victim agreed with counsel’s statement that “you don’t really know what
he is doing over there, you just feel something in your side.” Counsel also
questioned the Victim about testimony that the police dispatcher had told officers
that the assailant had held a gun to the Victim’s head; counsel suggested that
Victim had been inconsistent as to whether Hudson had held a gun to her head, or
instead had held “something” that felt “like a sharp object” to her side.
The dispute as to whether Hudson was holding anything, and if so, what it
was, continued during the parties’ closing arguments. In its closing, the State
argued that Hudson “made sure [the Victim] thought he had a gun or a knife or
something that was going to hurt her.” The State also conceded that the Victim
13
“didn’t know if he had a weapon for sure or not,” but that the actual existence of a
weapon was unnecessary, if Hudson made it appear that he was armed.
During the defense closing, counsel emphasized the supposed vagaries and
inconsistencies in the Victim’s account as to whether Hudson had wielded an object,
and the nature of the object he had used. Thus, counsel argued:
Mr. Hudson opened the door and she feels something poking in her
side. She does not turn to look at Mr. Hudson. She specifically said
that. She does not turn to look at him. She does not know whether he
was holding anything in his hand. These are not my words. These are
[the Victim’s] words. She does not know whether he actually had
anything in his hand. She doesn’t even know whether he was actually
pushing something against her side. She didn’t see it. She felt
something. And from that, she concludes it may have been a gun. It
may have been a weapon. And hey, to be honest with you, if you feel
that, it may be a lot of things. That is true. It may be all kind of
things. But does that appear to be a deadly weapon or dangerous
instrument? She didn’t see anything. There is no possible way on this
Earth that they have met their burden, based on what [the Victim]
says. Something you don’t see does not have an appearance of
anything.
As in his cross-examination of the Victim, counsel also argued that the Victim had
been inconsistent, reporting that a gun had been held to her head during the 9-1-1
call, but later claiming that a sharp object had been held to her side.
Defense counsel also emphasized during closing argument that Hudson was
searched by police both shortly before the theft (when Officer Miller patted him
down at the McDonald’s restaurant), and shortly afterwards, when he was arrested.
Counsel emphasized that the officers on each occasion found “[n]othing. No weapon.
. . . Nothing that could have even been used as a weapon[,] . . . nothing hard,
nothing pointy, nothing.”
Given this testimony and argument, it is evident that the existence and
nature of any object Hudson wielded was seriously disputed. The jury’s
deliberations would undoubtedly have been influenced by an instruction telling
14
them not only that they needed to find that Hudson had threatened the use of what
appeared to be a “dangerous instrument,” but that they had to find that the
instrument appeared to be “readily capable of causing death or other serious
physical injury.” The circuit court plainly erred by omitting the required definition
of a “dangerous instrument” from the verdict director for first-degree robbery in this
case. See, e.g., State v. Doolittle, 896 S.W.2d 27, 29–30 (Mo. 1995) (finding plain
error and reversing first-degree robbery conviction where instruction failed to define
“dangerous instrument” or to require jury to find that defendant employed a
dangerous instrument; at trial, the defendant disputed that he wielded a Coke
bottle in theft from convenience store, or that he used it as a dangerous
instrument); State v. Arnold, 397 S.W.3d 521, 529 (Mo. App. S.D. 2013) (prosecution
for offense of trafficking in stolen identities, which required a finding that the
defendant intended to transfer means of identification “for the purpose of
committing identity theft”; finding plain error where verdict director omitted
required definition of “identity theft,” and “defense counsel consistently argued that:
(1) Defendant did not know the means of identification were in the car [in which the
Defendant was a passenger]; and (2) said items belonged to the driver, who ran
away . . .” and was never apprehended).3
3 This case is distinguishable from State v. Jones, 519 S.W.3d 818 (Mo. App.
E.D. 2017), on which the State relies. In Jones, the State charged Jones with attempting to
cause physical injury with a dangerous instrument—his vehicle. 519 S.W.3d at 821. The
State contended that, in the underlying incident, Jones attempted to evade a bail bondsman
by using his vehicle to strike the bail bondsman’s vehicle and push it into a pole. Id. Jones
contended that his vehicle accidentally struck the bail bondsman’s, because the bail
bondsman “was speeding, driving recklessly, and swerving into the other lane.” Id. at 822.
As here, the verdict director omitted the required definition of a “dangerous instrument.”
Id. The Eastern District rejected Jones’ claim that this constituted plain error. Id. at 827.
But in Jones, the defendant admitted that he wielded the object in question (his vehicle),
and did not dispute that the object in question could constitute a “dangerous instrument.”
Instead, the defendant in Jones argued that he did not intentionally wield the object at all.
As we have explained in the text, this case is fundamentally different: here, Hudson
contested both that he wielded an object, and that this object constituted a “dangerous
instrument.”
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B.
Having found that the circuit court plainly erred in failing to provide the jury
with the MAI-required definition of a “dangerous instrument,” we must now
address the appropriate remedy.
“The general rule is that the remedy for instructional error is to remand the
case for a new trial.” State v. Neal, 328 S.W.3d 374, 383 (Mo. App. W.D. 2010)
(citation omitted). This case is unusual, however. As we explained in § I, above, the
evidence at trial was sufficient to establish Hudson’s guilt of first-degree robbery.
Moreover, the instructional error in this case relates only to a single element of
first-degree robbery: whether Hudson “[d]isplay[ed] or threaten[ed] the use of what
appears to be a deadly weapon or dangerous instrument.” § 569.020.1(4). The
instructional error did not affect the jury’s finding that the other elements of first-
degree robbery had been established beyond a reasonable doubt: that Hudson took
a Chevrolet Tahoe belonging to the Victim; that Hudson did so for the purpose of
withholding it permanently from the Victim; and that Hudson threatened the
immediate use of physical force against the Victim for the purpose of preventing her
resistance to Hudson’s taking of the vehicle. These “untainted” elements constitute
the lesser offense of second-degree robbery. See § 569.030. The jury was instructed
on this lesser-included offense. In addition, Hudson was not entitled to jury
sentencing in this case, because the circuit court found him to be a prior and
persistent offender.
In these circumstances, when (1) an instructional error relates only to an
element which differentiates a greater offense from a lesser-included offense; (2) the
lesser offense was actually litigated; (3) there was otherwise sufficient evidence to
support the jury’s conviction of the greater offense; and (4) jury sentencing is not
available, we believe the appropriate remedy is to give the State the option of
retrying the defendant for the greater offense, or instead agreeing to the entry of a
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conviction of the lesser offense, without the necessity of a retrial. The Eastern
District reached this conclusion in State v. Roe, 6 S.W.3d 411 (Mo. App. E.D. 1999),
in circumstances which are functionally identical to the situation here. The Court
cogently explained why, in these circumstances, the interests of judicial economy,
and of fairness to the parties, justified giving the State the option whether to retry
the defendant for the greater offense:
It is fundamental that the appellate remedy should extend no
further than the scope of the wrong. The wrong here is that the trial
court misdirected the jury as to the proper essential elements of first-
degree murder and armed criminal action[, by failing to correctly
instruct on the state of mind required to support a first-degree murder
conviction]. However, the erroneous instruction clearly contained all
the requisite elements of second-degree murder and armed criminal
action, albeit with some language from the first-degree murder
instruction that could be deemed surplusage. Further, both second-
degree murder and armed criminal action were, in fact, submitted as
lesser-included offenses. Thus, Defendant had full notice and a
complete opportunity to defend against the charges of second-degree
murder and armed criminal action. Despite a vigorous defense, the
jury still found, unanimously and beyond a reasonable doubt, that
Defendant committed all the constituent elements of second-degree
murder and armed criminal action. Finally, the court found Defendant
to be a prior offender, a classification that makes the assessment of
punishment a question for the judge rather than the jury, thus
foreclosing any expectation of Defendant that the jury would assess his
sentence. Given these circumstances, remand for a new trial is an
appellate remedy that exceeds the scope of the wrong, representing a
windfall to Defendant who failed to timely raise his claim of error.
Under the circumstances, the appropriate disposition of this case is . . .
[one] in which the State is allowed on remand to choose whether to
retry the defendant or accept the lesser convictions.
Id. at 417 (footnotes omitted). The Court noted that, because the procedural error
did not affect the jury’s finding of the essential elements of second-degree murder
and armed criminal action, “Defendant received a perfectly fair trial as to second-
degree murder and armed criminal action[,]” and therefore giving the State the
choice to have a conviction entered for the lesser offenses without a retrial “does not
violate Defendant’s constitutional right to a fair trial.” Id. at 418. The Eastern
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District followed Roe, and entered the same dispositional order, in State v. Bell, 488
S.W.3d 228, 247–49 (Mo. App. E.D. 2016).4
We believe Roe is persuasive, and that the remedy it affords furthers the
interests of judicial economy, and is fair to the parties. On remand, the State will
have the opportunity to elect whether to retry Hudson for first-degree robbery, or
instead accept the entry of a conviction for second-degree robbery.
Conclusion
Hudson’s conviction for first-degree robbery is reversed, and the case is
remanded to the circuit court for further proceedings with respect only to the
robbery charge. On remand, Hudson will be entitled to a new trial unless the State
elects, within sixty days from the issuance of our mandate, to accept the entry of a
conviction for the lesser-included offense of second-degree robbery. If the State
elects the entry of a conviction of the lesser offense, Hudson shall be resentenced
accordingly.
___________________________________
Alok Ahuja, Judge
All concur.
4 In State v. Neal, 328 S.W.3d 374 (Mo. App. W.D. 2010), we took the Roe
principle a step further. Neal was a prosecution for rape and first-degree robbery. On the
robbery count, the verdict director proffered by the State wholly omitted the “dangerous
instrument” element; thus, although the defendant had been charged with first-degree
robbery, the tendered instruction correctly set forth the elements of second-degree robbery.
Neal did not object to the instruction. In these circumstances, we held that “[b]oth parties
consented to the submission of the lesser included offense of robbery in the second degree[,]”
instead of first-degree robbery. Id. at 385. Given that the parties had essentially consented
to try the case solely on a second-degree robbery charge, we held that “[n]either judicial
economy nor the rights of the parties would be served by granting either party a new trial”
on first-degree robbery. Id. We therefore ordered the entry of a conviction for second-
degree robbery. In this case, by contrast, the State plainly sought to submit the offense of
first-degree robbery to the jury, and the approach taken in Neal is inapplicable.
18