State of Missouri, Respondent v. Phillip Belton, Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: State of Missouri, Respondent v. Phillip Belton, Appellant. Case Number: WD61900 Handdown Date: 03/02/2004 Appeal From: Circuit Court of Jackson County, Hon. John M. Torrence Counsel for Appellant: John M. Schilmoeller Counsel for Respondent: John M. Morris and Andrea K. Spillars Opinion Summary: Phillip Belton was convicted by a jury of involuntary manslaughter and armed criminal action. On appeal, he challenges the sufficiency of the evidence to support his involuntary manslaughter conviction and alleges instructional error on the charge of armed criminal action. AFFIRMED IN PART; REVERSED IN PART. Division One holds: (1) The evidence was sufficient to support the conviction for involuntary manslaughter. Belton was reckless in waving around a gun and pointing it at the victim a few minutes before he shot the victim. The involuntary manslaughter conviction is affirmed. (2) The court prejudicially erred in instructing the jury that it could consider armed criminal action with the underlying felony of involuntary manslaughter. Pursuant to the Missouri Supreme Court's recent decision in State v. Williams, slip op. no. SC85355 (Mo. banc, Jan. 13, 2004), the underlying felony for an armed criminal action charge must involve knowing or purposeful conduct. Because involuntary manslaughter requires a showing of only reckless conduct, it could not support a charge of armed criminal action. The armed criminal action conviction is reversed. Citation: Opinion Author: Lisa White Hardwick Opinion Vote: AFFIRMED IN PART; REVERSED IN PART. Smith, P.J., and Holliger, Jr., concur.

Opinion: Phillip Belton was convicted by jury of involuntary manslaughter, section 565.024,(FN1) and armed criminal action, section 571.015. On appeal, he challenges the sufficiency of the evidence to support his involuntary manslaughter conviction and alleges instructional error on the charge of armed criminal action. We affirm the involuntary manslaughter conviction and reverse the armed criminal action conviction. SUFFICIENCY OF THE EVIDENCE Belton was charged with second-degree murder, section 565.021, and armed criminal action in the shooting death of Donald Adkins. At trial, the evidence established that Belton attended a gathering at Adkins' home on December 11, 1999. Three witnesses testified Belton was showing off a gun and waving it around in the dining room, where Adkins was sitting at a table. Two of the witnesses left the home after they heard Belton threaten to shoot Adkins in the head. A third witness, Tamara Hill, went into a bedroom because she was afraid of the gun. Upon hearing a gunshot a few minutes later, Hill came back into the dining room and saw that Adkins had been shot in the head. At the close of evidence, the trial court denied Belton's motion for judgment of acquittal. The jury found Belton guilty of the lesser-included offense of involuntary manslaughter and armed criminal action. Belton was sentenced to two consecutive five-year prison terms. Belton contends the trial court erred in denying the acquittal motion because the evidence was insufficient to convict him of involuntary manslaughter. Our review of this issue is limited to a determination of whether there was sufficient evidence from which a reasonable trier of fact could have found Belton guilty beyond a reasonable doubt. State v. Chaney, 967 S.W.2d 47, 52 (Mo. banc 1998). We accept as true all evidence and inferences favorable to the state, and disregard all evidence and inferences to the contrary, giving great deference to the trier of fact. State v. Bristol, 98 S.W.3d 107, 111 (Mo.App. W.D. 2003). To convict Belton of involuntary manslaughter, the State had to prove that he "recklessly cause[d]" Adkins' death. Section 565.024.1(1). A person "acts recklessly ... when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation." Section 562.016.4. In the context of involuntary manslaughter, "[r]ecklessness involves conscious risk creation and resembles 'knowingly' in that a state of awareness is

involved, but the awareness is of risk, that is, of a probability less than a substantial certainty." State v. Miller, 981 S.W.2d 623, 630 (Mo.App. W.D. 1998) The State's evidence was undisputed that Belton was waving around a gun in Adkins' home. At one point, Belton pointed the gun at Adkins and threatened to shoot him. Witnesses then left the room for fear that the gun might be fired. Although none of the witnesses saw the actual shooting, Tamara Hill heard the fatal gunshot a few minutes after she left the dining room where Belton had threatened Adkins. The evidence was sufficient to establish a reasonable inference that Belton shot Adkins. The State's theory focused on an intentional shooting, but Hill testified she thought it was an accident. Similarly, Carlos Ward, an inmate at a correctional facility with Belton, testified that Belton admitted he "accidentally shot a guy in the head." An accidental shooting, where the irresponsible use of a gun is shown, can support a finding of recklessness. State v. Gaskins, 66 S.W.3d 110, 113 (Mo.App. S.D. 2001) ("defendant was reckless in engaging in a fight while he had a loaded gun in his jacket pocket"). At a minimum, the evidence was sufficient to establish the shooting death occurred as result of Belton's conscious disregard for the substantial risks involved in waving a gun around and pointing it toward Adkins. The jury could reasonably conclude his conduct was reckless, in that it grossly deviated from the standard of care a reasonable person would use under similar circumstances. See State v. Jennings, 887 S.W.2d 752, 754 (Mo.App. W.D. 1994) (raising a loaded gun toward victim was reckless conduct supporting a conviction for involuntary manslaughter). We find no error in the trial court's denial of the motion for acquittal on the involuntary manslaughter charge. The evidence was sufficient to support the jury's finding that Belton was guilty beyond a reasonable doubt of recklessly causing Adkins' death. Point I is denied. INSTRUCTIONAL ERROR Belton contends the trial court erred in instructing the jury to consider the armed criminal action charge in connection with a guilty verdict on involuntary manslaughter. He argues armed criminal action requires a mental state of purposeful or knowing conduct, pursuant to Section 571.015.1 (FN2) and Section 562.021.3 (FN3), R.S.Mo. Supp. 1999, and, therefore, cannot be submitted with the underlying felony of involuntary manslaughter, which requires the lower mens rea of reckless conduct. On a claim of instructional error, we will not reverse unless there is, in fact, an error in submitting the instruction and prejudice results to the defendant. State v. Richardson, 951 S.W.2d 718, 721 (Mo.App. W.D. 1997). Prejudice arises when an erroneous instruction adversely influences, confuses, or potentially misleads the jury. Id.; State v. Thompson,

112 S.W.3d 57, 71 (Mo.App. W.D. 2003). In State v. Williams, No. SC85355, 2004 WL 51793 at *4 (Mo. banc, Jan. 13, 2004), the Missouri Supreme Court recently clarified that "armed criminal action requires a culpable mental state of acting purposely or knowingly." Williams expressly overruled State v. Cruz, 71 S.W.3d 612, 619 (Mo.App. W.D. 2001), which held that the prescribed mental state for armed criminal action is the same as that for the underlying felony. Id. at 619. Under Cruz, any felony committed with a dangerous instrument or deadly weapon could serve as the underlying offense for armed criminal action. That is no longer true in light of Williams, which requires that a defendant "knowingly" commit an underlying offense. Accordingly, a conviction for involuntary manslaughter, which requires a mental state of recklessness (not purposeful or knowing conduct), cannot serve as the underlying felony offense for a charge of armed criminal action. Section 565.024. The trial court instructed the jury that Belton could be found guilty of armed criminal action if the jury determined: First, that defendant is guilty of the offense of involuntary manslaughter, as submitted in Instruction No. 6, and Second, that defendant knowingly committed that offense by or with or through the use or assistance or aid of a deadly weapon[.] Under Williams, paragraph first must be deemed erroneous in that it instructed the jury to consider an underlying offense, involuntary manslaughter, that did not include the required mental state to support a conviction for armed criminal action. Paragraph second further misled the jurors by asking them to determine whether Belton knowingly committed a felony that required only reckless conduct. Although Cruz was the prevailing law at the time the instruction was given, the submission of the armed criminal action charge can not be upheld on appeal in light of the Supreme Court's more recent substantive determination in Williams that a defendant must knowingly commit an underlying felony offense. See State v. Hayes, 23 S.W.3d 783, 791 (Mo.App. W.D. 2000) (substantive changes in the law are applied retrospectively to other pending cases, including those on appeal). The instruction clearly prejudiced Belton, as he was convicted on an armed criminal action charge that did not satisfy the statutory mens rea requirement. This prejudicial error requires reversal of his armed criminal action conviction. Conclusion The judgment of conviction is affirmed on the Count I charge of involuntary manslaughter. The conviction on the Count II charge of armed criminal action is reversed. All concur. Footnotes:

FN1. All statutory citations are to the Missouri Revised Statutes 1994, unless otherwise indicated. FN2. Section 571.015.1 provides in relevant part: "... any person who commits any felony under the laws of this state by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon is also guilty of the crime of armed criminal action[.]" FN3. Section 562.021.3, R.S.Mo. Supp. 1999, provides in relevant part: "... if the definition of any offense does not expressly prescribe a culpable mental state for any elements of the offense, a culpable mental state is nonetheless required and is established if a person acts purposely or knowingly; but reckless or criminally negligent acts do not establish such culpable mental state." Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.