                                                     In the
                                Missouri Court of Appeals
                                           Western District


                                                          
STATE OF MISSOURI,                                        
                                                             WD76911
                    Respondent,                              OPINION FILED:
v.                                                        
                                                             December 16, 2014
KHIRY DEVON SUMMERS,                                      
                                                          
                     Appellant.                           
                                                          
                                                          


                       Appeal from the Circuit Court of Cole County, Missouri
                               The Honorable Patricia S. Joyce, Judge

                           Before Division Four: Alok Ahuja, C.J. Presiding,
                           Victor C. Howard, and James Edward Welsh, JJ.


       Khiry D. Summers appeals his convictions, following a jury trial, of second-degree

(felony) murder (§ 565.021, RSMo1), first-degree robbery (§ 569.020), and armed criminal

action, (§ 571.015), for which he was sentenced to twenty-three years' incarceration. Summers

also challenges his consecutive sentence for armed criminal action. We affirm the convictions

but remand for resentencing on the armed criminal action conviction.




       1
           Statutory references are to the Revised Statutes of Missouri (RSMo) 2000, unless otherwise noted.
                                                 Background

       Viewed in the light most favorable to the verdict, 2 the evidence at Summers' trial showed

that in April 2012, Summers and two others, Tracy Session and Brandon Chase, conspired to rob

Keith Mosley of some marijuana. They arranged to meet with Mosley on the pretext of buying

marijuana from him, but rather than purchase the marijuana, they planned to rob Mosley of it.

       On April 22, 2012, Summers, Chase and Session set out to meet with Mosley at an

apartment in Jefferson City. Summers was armed with his brother's .380-caliber Ruger handgun,

and Session was armed with a .40-caliber Glock handgun. When the three arrived at the

apartment, they found Mosley there with another man, Brent Slaughter. Chase and Summers,

who had covered his face with a black T-shirt, entered the apartment. Session waited outside.

       Once inside, Summers pulled his .380-caliber handgun on Mosley and demanded that he

hand over the marijuana. Mosley walked toward Summers and attempted to reason with him.

Summers tried to grab the marijuana from Mosley, but Mosley put it behind his back. Summers

then fired three shots into the floor. One of the bullets ricocheted and struck Slaughter in the leg.

Hearing the shots, Session opened the door and fired one .40-caliber bullet into Mosley's

abdomen. The bullet lacerated Mosley's spine and he fell to the floor, dropping the marijuana.

While Mosley lay on the floor, Summers took the two bundles of marijuana that Mosley had

been holding. Summers, Session and Chase then left the apartment.

       When the police arrived, they found Mosley lying in the doorway of the apartment.

Officers found a single .40-caliber shell casing about four to five feet from the apartment's front

door. They also observed three bullet marks in the dining room floor and found three .380-

caliber shell casings that were later matched to Summers' brother's gun. The officers found a

       2
           State v. Baumruk, 280 S.W.3d 600, 607 (Mo. banc 2009).

                                                       2
small amount of marijuana on the floor. Mosley was taken to a local hospital and then airlifted

to a hospital in Columbia, where he died. A .40-caliber bullet was recovered from Mosley's

body during the autopsy.

         Summers fled to Illinois but returned to Jefferson City a few days later and surrendered to

police. In the presence of his attorney and after being read his Miranda3 rights, Summers gave a

statement detailing his involvement in the robbery and shooting. It was consistent with the

foregoing recitation of facts. A videotaped recording of Summers' statement was admitted into

evidence at his trial and played to the jury. A transcript of his statement also was admitted into

evidence at trial.

         At trial, Summers recanted his statement to the police. He claimed that his attorney had

created the story about him being involved in the robbery and advised him to use it.4 Summers

told the jury, instead, that he and Chase had gone to Mosley's apartment for Chase to buy some

marijuana for him while he remained outside. He said that when he heard an argument break out

inside the apartment, he opened the door and fired some shots into the floor. Summers claimed

that he then ran to his fiancée's house, which was nearby.

         The circuit court submitted charges of second-degree felony murder, robbery in the first

degree, and armed criminal action to the jury. The jury returned guilty verdicts on all three

counts. The court sentenced Summers as a persistent misdemeanor offender to concurrent terms

of twenty years' imprisonment for felony murder and first-degree robbery, and a consecutive

sentence of three years' imprisonment for armed criminal action.


         3
             Miranda v. Arizona, 384 U.S. 436 (1966).
         4
        In rebuttal, the attorney denied this, stating that she had advised Summers only "to confess to what his
involvement was" in order, primarily, to clear up any misconceptions about who shot and killed Mosley.

                                                         3
                                             Discussion

       Summers raises four points on appeal. His first three points all are dependent upon the

success of Point I, in which he contends that the circuit court erred in denying his motions for

acquittal on first-degree robbery because the State failed to produce sufficient evidence that he

"used force or the threat of force to effectuate a stealing," in that "there was no evidence that any

force used by [him] effectuated his taking of the green plant material" from Mosley. As to

Points II and III, Summers argues that because first-degree robbery was the underlying offense

for the armed criminal action and felony murder convictions, if the first-degree robbery charge is

vacated, then those two convictions also must be vacated.

       In reviewing the sufficiency of the evidence, we accept as true all evidence favorable to

the State and disregard all evidence and inferences to the contrary. State v. Crawford, 68 S.W.3d

406, 407-08 (Mo. banc 2002). Our review is "limited to determining whether there is sufficient

evidence from which a reasonable juror might have found the defendant guilty beyond a

reasonable doubt." Id. at 408. When reviewing sufficiency of the evidence to support a criminal

conviction, we do not act as a "super juror" with veto powers; rather, we give great deference to

the jury's findings. State v. Nash, 339 S.W.3d 500, 509 (Mo. banc 2011). To the extent that our

review involves the interpretation of a statute, that is an issue of law which we review de novo.

See State v. Porter, 241 S.W.3d 385, 390 (Mo. App. 2007).

       "In considering the sufficiency of the evidence, there must be sufficient evidence of each

element of the offense." State v. Dixon, 70 S.W.3d 540, 544 (Mo. App. 2002). "The elements of

an offense are derived from the statute establishing the offense or, when relevant, common law

definitions." Id. (citing State v. McTush, 827 S.W.2d 184, 188 (Mo. banc 1992)). The elements



                                                  4
of first-degree robbery are derived from section 569.020, the statute establishing that offense.

Section 569.020.1 provides:

       A person commits the crime of robbery in the first degree when he forcibly steals
       property and in the course thereof he, or another participant in the crime,

               (1) Causes serious physical injury to any person; or

               (2) Is armed with a deadly weapon; or

               (3) Uses or threatens the immediate use of a dangerous instrument against
               any person; or

               (4) Displays or threatens the use of what appears to be a deadly weapon or
               dangerous instrument.

       The definitive issue here is whether the evidence fits within the definition of first-degree

robbery in section 569.020 -- specifically, whether it supports a finding that Summers "forcibly

stole" property from Mosley. As defined by statute, "a person 'forcibly steals,' and thereby

commits robbery, when, in the course of stealing, . . . he uses or threatens the immediate use of

physical force upon another person for the purpose of [p]reventing or overcoming resistance to

the taking of the property or to the retention thereof immediately after the taking[.]" Section

569.010(1)(a) (emphasis added). "Stealing" is defined as appropriating the property of another

"with the purpose to deprive [him] thereof, either without [his] consent or by means of deceit or

coercion." § 570.030.1, RSMo Cum. Supp. 2011.

       Summers states that despite initially charging him with first-degree robbery under an

"accomplice liability" theory, the State abandoned accomplice liability in submitting first-degree

robbery to the jury. This is the basis of his claim that he could be convicted of robbery "based

only on his own actions" and that the evidence failed to establish that "his own use or threatened

use of physical force" caused Mosley "to deliver up" the marijuana, as stated in the verdict


                                                 5
director. Summers argues that it was Session's "intervening act" of shooting Mosley that allowed

Summers to take the marijuana, and not his own use or threat of force. In other words, Summers

argues, "without accomplice liability as part of the instruction, [Session's] act of shooting

[Mosley] breaks the chain of causation between any force or threat of force by [Summers] and

[Summers'] taking the green plant material from [Mosley]."

        This argument is without merit. As noted, we address a challenge to the sufficiency of

the evidence by looking to the elements of the crime charged. See State v. Hines, 377 S.W.3d

648, 655 (Mo. App. 2012). In doing so, we "consider not only the circumstances immediately

surrounding the alleged robbery but events prior to the robbery to determine whether the

elements of the offense are satisfied." State v. Neal, 328 S.W.3d 374, 379 (Mo. App. 2010).

"The language 'in the course of' and 'in the course thereof' modify both the statutory definition of

'forcibly steals,' the first element of first-degree robbery, and the second element, [in this case, 'is

armed with a deadly weapon']." See id. (quoting §§ 569.010(1) and 569.020). "Both phrases

have been interpreted to mean that the entire course of the robbery must be considered to

determine whether the elements have been satisfied." Id. (citing State v. Yancy, 779 S.W.2d 712,

714-15 (Mo. App. 1989)). As explained in Yancy:

        "In the course" of forcible stealing is a broad term. It covers the whole
        transaction or occurrence. The statute does not state that during the actual taking
        of the property appellant must simultaneously display or threaten the use of a
        deadly weapon, but only that "in the course thereof" defendant uses or threatens to
        use a weapon. As long as a weapon is used "in the course" of forcible stealing,
        the offense is robbery in the first degree.

779 S.W.2d at 715.5 Under Yancy, if the use of force or the threat of the immediate use of force

"precedes or is contemporaneous with the taking, the offense of robbery is complete." Id. "And


        5
            Superseded by statute on other grounds, as stated in State v. Kelly, 43 S.W.3d 343, 349 (Mo. App. 2001).

                                                           6
if the use of a weapon is a part of the whole, single, transaction, the offense is robbery. It is the

use of a weapon 'in the course' of forcible stealing, that makes the offense robbery in the first

degree." Id.

           Here, the record contains sufficient evidence that Summers' conduct satisfied the

statutory elements for the crime of robbery in the first degree. Summers concocted a plan with

Chase and Session to rob Mosley, and Summers participated in that robbery. Both Summers and

Session were armed with a deadly weapon (a handgun). In the course of that robbery, Summers

threatened Mosley with his handgun, demanded that he hand over the marijuana, and then shot

three times into the floor (injuring Slaughter in the process). Session caused serious physical

injury to Mosley by shooting him, and Summers then stole Mosley's marijuana. This evidence is

sufficient to establish that Summers "forcibly stole" the marijuana and that he did so while

"armed with a deadly weapon." Thus, the circuit court did not err in denying Summers' motions

for acquittal or in entering judgment of conviction for first-degree robbery. Point I is denied.

           Summers' Points II and III seek vacation of his convictions for armed criminal action and

second-degree felony murder, both of which were charged in connection with the robbery.

Summers concedes that the outcome of those points is dependent on the success of Point I. He

raises no independent grounds on which those convictions should be reversed. Because there

was sufficient evidence to support Summers' conviction of first-degree robbery, we affirm

Summers' convictions on all three counts.

           In his final point, Summers claims that the circuit court plainly erred in imposing a

consecutive sentence for armed criminal action because the court did so under the mistaken

belief that the applicable statute required it, resulting in manifest injustice and a miscarriage of

justice.

                                                    7
       "As a general proposition, a trial court has the discretionary authority to determine

whether multiple sentences of imprisonment are to be served consecutively or concurrently."

Mosby v. State, 236 S.W.3d 670, 679 (Mo. App. 2007). At Summers' sentencing hearing, the

court stated:

       The Court, having considered the evidence and the sentence, sentences the
       defendant to twenty years on Count I, twenty years on Count II, and three years
       on Count III. I think the armed criminal action has to run consecutive.

The court's written judgment reflected that the sentences for felony murder and first-degree

robbery were to be served concurrently, with the sentence for armed criminal action to be served

consecutively. The circuit court's interpretation of the statute is incorrect. Section 571.015.1

provides, in relevant part, that "[t]he punishment imposed pursuant to this subsection shall be in

addition to any punishment provided by law for the crime committed by, with, or through the

use, assistance, or aid of a dangerous instrument or deadly weapon." As explained by our

Supreme Court, the statute does not mandate that a sentence for armed criminal action be

consecutive to a sentence for the underlying conviction. State v. Treadway, 558 S.W.2d 646,

653 (Mo. banc 1977);6 see also State v. Olney, 954 S.W.2d 698, 700-01 (Mo. App. 1997).

       Summers concedes that he has not preserved this claim for appellate review. Issues that

were not preserved may be reviewed only for plain error under Rule 30.20. State v. Baumruk,

280 S.W.3d 600, 607 (Mo. banc 2009). Rule 30.20 authorizes this Court to review, in its

discretion, "plain errors affecting substantial rights . . . when the court finds that manifest

injustice or miscarriage of justice has resulted therefrom." Our Supreme Court has established a

threshold review to determine if a court should exercise its discretion to entertain a Rule 30.20

review of a claimed plain error. First, we determine whether or not the claimed error "facially

       6
           Overruled on other grounds by Sours v. State, 593 S.W.2d 208, 210 (Mo. banc 1980).

                                                        8
establishes substantial grounds for believing that 'manifest injustice or miscarriage of justice has

resulted[.]"' State v. Brown, 902 S.W.2d 278, 284 (Mo. banc 1995) (quoting Rule 30.20). If not,

we should not exercise our discretion to conduct a Rule 30.20 plain error review. If, however,

we conclude that we have passed this threshold, we may proceed to review the claim under a

two-step process pursuant to Rule 30.20. In the first step, we decide whether plain error has, in

fact, occurred. Baumruk, 280 S.W.3d at 607. "All prejudicial error, however, is not plain error,

and plain errors are those which are evident, obvious and clear." Id. In the absence of evident,

obvious, and clear error, we should not proceed further with our plain error review. If, however,

we find plain error, we must continue to the second step to consider whether or not a miscarriage

of justice or manifest injustice will occur if the error is left uncorrected. Id. at 607-08.

       Here, the circuit court's statement that it thought "the armed criminal action has to run

consecutive" is a misstatement of the law. See Treadway, 558 S.W.2d at 653; Olney, 954

S.W.2d at 700-01. "When the record demonstrates that the trial court imposed consecutive

sentences based on a misunderstanding of the statute, the defendant is entitled to re-sentencing."

State v. Scott, 348 S.W.3d 788, 800 (Mo. App. 2011); Olney 954 S.W.2d at 700-01. "This is so

even if it is likely the court will return the same sentence." State v. Cowan, 247 S.W.3d 617, 619

(Mo. App. 2008).

       In Olney, this Court granted plain error review where the circuit court sentenced a

defendant based on a mistaken belief that the sentence for armed criminal action must run

consecutive to other sentences. 954 S.W.2d at 700-01. Relying on both Treadway and Olney,

the Southern District did the same in State v. Taylor, 67 S.W.3d 713, 716 (Mo. App. 2002). As

in this case, the circuit courts in both Olney and Taylor expressed the mistaken belief that armed

criminal action sentences are required to be consecutive. Both were reviewed for plain error and

                                                   9
ultimately remanded for resentencing. See Olney, 954 S.W.2d at 700-01 (circuit court

interpreted section 571.015.1's mandate that its sentence be imposed "in addition to any other

punishment" to mean that "it's got to be a consecutive sentence"); Taylor, 67 S.W.3d at 715-16

(circuit court declined "to make a legal determination" as to whether the phrase "in addition to"

in section 571.015 requires a consecutive or concurrent sentence).

       Relying on those two cases, Summers argues that his sentence for armed criminal action

should be remanded to the circuit court on the same basis. The State agrees, asserting that, based

on the circuit court's mistaken belief that the armed criminal action sentence had to be served

consecutively, that sentence should be remanded to the circuit court.

       We concur. Here, the circuit court's misstatement of the law is sufficiently similar to

those in Olney and Taylor as to also warrant plain error review, and based on that plain error

review, we remand for resentencing on the same basis. Accordingly, we vacate Summers' armed

criminal action sentence and remand for the circuit court to exercise its judicial discretion on

whether that sentence should be imposed concurrently or consecutively.

                                            Conclusion

       Based on the foregoing, we affirm the circuit court's judgment of guilt on all three

charges, and we affirm the sentences for murder and robbery. We reverse and remand for

resentencing as to the armed criminal action charge.


                                                       /s/ JAMES EDWARD WELSH
                                                       James Edward Welsh, Judge


All concur.




                                                 10
