                     In the Missouri Court of Appeals
                            Eastern District
                                       DIVISION ONE

STATE OF MISSOURI,                          )      No. ED107732
                                            )
       Respondent,                          )      Appeal from the Circuit Court
                                            )      of the City of St. Louis
vs.                                         )
                                            )      Hon. Steven R. Ohmer
TRAVON DORNAY JOHNSON,                      )
                                            )      Filed:
       Appellant.                           )      June 23, 2020

       Travon Johnson (“Defendant”) appeals from the judgment entered after a jury trial on

multiple convictions stemming from a drive-by shooting. We affirm as modified.

       In September of 2014, Lamont Hamm was in the car with his girlfriend Layla White and

their three-year old son. It was approximately 4:00 p.m., daylight, and White was driving when a

dark colored Chevy Impala began chasing them. Hamm saw two men lean out of the Impala’s

front and rear passenger windows and begin shooting at them, injuring White. Hamm identified

the shooters as Defendant and Trevon Jackson (“Codefendant”); the Impala was driven by a third

unknown person. Hamm said he and Defendant used to be friends, but that Defendant was upset

with him because a friend of Hamm’s had broken into Defendant’s home. Hamm told police he

was tired of Defendant shooting at him, referring to an incident in August of 2014 in which Hamm

and another man were shot at; the other man died, and initially Hamm did not identify Defendant
as the shooter to police, but now that “innocent” people were involved Hamm said he was willing

to divulge Defendant’s involvement in that earlier incident.

       In addition to Hamm’s eyewitness account of the September shooting, there was cell phone

evidence showing that Defendant had received several calls just before 4:00 p.m. on that day at

locations near where the incident occurred. When Defendant and Codefendant were arrested after

trying to flee in Defendant’s blue Chevy Impala the day after the September shooting, the police

found two guns in the car, one of which was a 9mm identified by ballistics evidence as the gun

used in the shooting. Defendant admitted the guns were his. Unspent ammunition of the same

caliber was also found in a search of Defendant’s home.

       Defendant and Codefendant were jointly charged for the September shooting with three

counts of assault in the first degree (one for each of the three victims in the car), one count of

unlawful use of a weapon and four associated armed criminal action counts. Defendant was also

charged individually with murder, assault, unlawful use of a weapon and associated ACAs for the

August incident and individually for resisting a lawful stop, resisting arrest and assault of a law

enforcement officer stemming from the car chase prior to his arrest in September. At the joint trial

with Codefendant, Defendant presented an alibi defense, claiming he was helping his girlfriend

move the day of the September shooting, and Codefendant presented no evidence. Defendant was

found not guilty on all counts relating to the August incident, guilty on all counts involving his

September arrest and guilty on all counts relating to the September shooting. Codefendant was

found not guilty. Defendant was sentenced to a total of 90 years imprisonment. Defendant appeals

only the convictions relating to the September shooting.

       Inconsistent Verdicts




                                                 2
       In his first point on appeal, Defendant contends the court plainly erred in accepting guilty

verdicts for Defendant on the same counts for which Codefendant was found not guilty. On each

of the counts for which Defendant and Codefendant were jointly charged, the jury received two

sets of verdict-directors: one set regarding the requirements for finding Defendant guilty and one

set regarding the requirements for finding Codefendant guilty. Each verdict-director for each

defendant on each count had two components. The first component was to determine the actus

reus: in each set, the jury was instructed that if it found that either Defendant or Codefendant

engaged in the requisite acts constituting the crime—so, for assault in the first degree, knowingly

causing serious injury by shooting—then it must find that the crime occurred. The second

component of each verdict-director instructed the jury to determine the requisite mens rea: in

Defendant’s set of instructions, the jury was directed to find Defendant guilty if it found that “with

the purpose of promoting or furthering the commission of” that crime, Defendant acted together

with Codefendant in the requisite acts; similarly, to find Codefendant guilty, the jury had to find

that “with the purpose of promoting or furthering the commission of” that crime, Codefendant

acted together with Defendant in the requisite acts.

       Defendant insists that Codefendant’s not guilty verdicts were dependent on a finding that

Codefendant did not “act together” with Defendant and since Defendant’s guilty verdicts were

necessarily dependent on the opposition conclusion, the verdicts are inconsistent. But this logic

ignores the individualized mens rea element. Codefendant was only guilty of the crime if he acted

together with Defendant with the purpose of promoting or furthering the commission of the crime.

In other words, Codefendant’s not guilty verdicts could be based on the finding that he acted

together with Defendant, but not for that criminal purpose. See State v. McGee, 284 S.W.3d 690,

708–09 (Mo. App. E.D. 2009) (holding that, on instructions similar to this case, jury could find




                                                  3
defendant was present but did not act with requisite purpose). The jury could have found that

Codefendant and Defendant acted together, but that only Defendant acted with the requisite mens

rea. The resulting guilty verdicts for Defendant and not guilty verdicts for Codefendant are,

therefore, not inconsistent. See id.

       Sufficiency of the Evidence

       In his second point relied on, Defendant purports to challenge the sufficiency of the

evidence, essentially raising the same argument as his first point: that the not guilty verdicts for

Codefendant “evidences a failure of proof” on the “acting together” element as it is set out in the

verdict-directors. This argument completely misses the point of a sufficiency of the evidence

challenge. A claim that the evidence was insufficient is actually a challenge to the trial court’s

ruling on the motion for judgment of acquittal at the close of evidence, which is filed before the

case is submitted to the jury. State v. Myles, 479 S.W.3d 649, 660 (Mo. App. E.D. 2015). Thus,

the real question is whether by the close of evidence the State has presented sufficient evidence to

submit the case to the jury, which is reviewed without regard to the verdict-director. Id.; see also

State v. Young, 369 S.W.3d 52, 54 n. 3 (Mo. App. E.D. 2012). And to succeed on a sufficiency

claim, an appellant must (1) identify the element of the crime he claims was not proven, (2) set

forth the evidence in the record tending to prove that element and (3) show why such evidence and

the reasonable inferences therefrom are so non-probative that no reasonable fact-finder could have

found that element was sufficiently proven. State v. Finch, 398 S.W.3d 928, 929 (Mo. App. S.D.

2013) (discussing three analytical steps required to challenge sufficiency). But here Defendant

does not identify any evidence, much less explain how it is not probative of the “acting together”

element. His argument is, instead, solely based on the jury’s conclusion under the verdict-director.

Not only is this argument wholly misplaced in a sufficiency challenge, it is without merit as




                                                 4
discussed above: Codefendant’s acquittal does not necessarily demonstrate a lack of evidence that

he and Defendant acted together. Defendant’s sufficiency challenge fails on its face.

       Admission of Evidence

       In his third point relied on, Defendant contends the court abused its discretion by admitting

into evidence the unused ammunition seized from his home. Defendant relies on the general

proposition that weapons and ammunition unconnected with the crime or the defendant are

inadmissible because they lack probative value and are prejudicial. See generally State v. Hosier,

454 S.W.3d 883, 895 (Mo. banc 2015). But this ammunition was not unconnected: it was found

in Defendant’s home and was of the same caliber as the ammunition used in the shooting.

Moreover, Defendant only challenges the admission of the ammunition itself, not the testimony

from the police officer describing the ammunition he found in Defendant’s home. “[A] defendant

is not prejudiced by the admission of allegedly improper evidence when the same facts were

established without objection by other evidence.” State v. Riggs, 520 S.W.3d 788, 798 (Mo. App.

S.D. 2016); see also State v. Jones, 369 S.W.3d 77, 81 (Mo. App. E.D. 2012). In other words, to

the extent the fact that Defendant had a “cache” of ammunition in his home was prejudicial, as he

claims, that is attributable to the officer’s testimony, not the admission of the ammunition itself.

See State v. Edwards, 31 S.W.3d 73, 82 (Mo. App. W.D. 2000) (finding no additional prejudice

from admission into evidence of knives found in defendant’s home where officer previously

testified without objection to finding knives in defendant’s home, which was not challenged on

appeal). It was not an abuse of discretion to admit the ammunition into evidence at trial.

       In his fifth point on appeal, Defendant contends the court clearly erred by denying his

motion to suppress and admitting into evidence statements he made to police. Defendant argues

that he immediately requested counsel when he was taken into custody and, though initially there




                                                 5
was no interrogation, a few hours later the police began interrogating him without counsel present.

Thus, he contends, the statements he made during that interrogation were illegally obtained and

inadmissible. But Defendant acknowledges that the challenged statements were not played during

the State’s case in chief, only during cross-examination of Defendant to impeach him after he

testified inconsistently with those statements and in the State’s rebuttal to Defendant’s assertion

of an alibi that was not mentioned in his statements. A statement obtained illegally in violation of

the rules regarding interrogation after a request for counsel can be used to impeach a defendant or

on rebuttal. See generally Oregon v. Hass, 420 U.S. 714, 722 (1975); State v. Thomas, 698 S.W.2d

942, 948 (Mo. App. S.D. 1985); State v. Engel, 859 S.W.2d 822, 829 (Mo. App. W.D. 1993). “To

hold otherwise would . . . permit a constitutional shield to be perverted into a license to use perjury

by way of a defense, free from the risk of confrontation with prior inconsistent utterances.”

Thomas, 698 S.W.2d at 949 (internal quotation marks and citation omitted). Thus, even if they

were illegally obtained, it was not error to admit Defendant’s statements for purposes of

impeachment and rebuttal, and Defendant has provided no argument to suggest otherwise.

       Exclusion of Evidence

       In his fourth point on appeal, Defendant argues the court abused its discretion in excluding

testimony that an alternative person, Vincent Perry, had a motive and the opportunity to commit

this crime. Missouri follows the “direct connection rule”: evidence that another person had an

opportunity or motive to commit the charged crime is only admissible if there is also proof that

the other person committed some act directly connecting him with the crime. State v. McKay, 459

S.W.3d 450, 458 (Mo. App. E.D. 2014); State v. Nash, 339 S.W.3d 500, 513 (Mo. banc 2011). In

other words, the directly-connected act is a threshold requirement for the admission of other

evidence tending to show that the person had motive and opportunity. McKay, 459 S.W.3d at 45.




                                                  6
The act must clearly and directly link the other person with the corpus delicti. Id.; Nash, 339

S.W.3d at 513. “Disconnected and remote acts, outside the crime itself cannot be separately

proved for such purpose; and evidence which can have no other effect than to cast a bare suspicion

on another, or to raise a conjectural inference as to the commission of the crime by another, is not

admissible.” Nash, 339 S.W.3d at 513 (quoting State v. Rousan, 961 S.W.2d 831, 848 (Mo. banc

1998)).

          Defendant sought to introduce evidence that Perry had a motive to shoot at Hamm because

Hamm had stolen Perry’s guns. Defendant claims the threshold act directly connecting Perry to

the shooting is that on the day of this crime, Perry was driving Defendant’s blue Chevy Impala

and had access to the guns that were in that car. The testimony Defendant relies on, however, was

merely that Perry “had” Defendant’s car that day. The only testimony that he was seen “driving”

that car was limited to some unspecified point later in the day after dark, when Perry arrived at

Defendant’s sister’s home in the car. This amounts to nothing more than speculation that Perry

was driving that car at any other point during that day, much less at the time or place of the

shooting. It is not an act that clearly and directly connected Perry to the crime itself. There is no

more than a conjectural inference and bare suspicion that Perry committed the crime. Thus, it was

not an abuse of the trial court’s discretion to exclude evidence of Perry’s alleged motive.

          In his sixth point, Defendant argues that the court erred by prohibiting him from inquiring

into Hamm’s pending federal charges. As a general rule, a witness may not be impeached with a

pending criminal charge unless a foundation is laid clearly demonstrating one of the following

exceptions: (1) a specific interest of the witness; (2) the witness’s motivation to testify favorably

for the State; or (3) the witness is testifying with an expectation of leniency. State v. Moore, 252

S.W.3d 272, 276 (Mo. App. S.D. 2008). The key in laying this foundation is to show the witness’s




                                                   7
perception of expectancy of favorable treatment. Id. Speculative or theoretical motives for

testifying are not sufficient to show the necessary connection between the witness’s pending

charges and the giving of his trial testimony. See id.; see also State v. Watts, 813 S.W.2d 940, 943

(Mo. App. E.D. 1991). In other words, “unrelated pending charges” are inadmissible when there

is nothing in the record to demonstrate the witness’s “perception of either favorable treatment if

he testified favorably to the State or harsh treatment if he testified unfavorably.” Moore, 252

S.W.3d at 277.

       Defendant has made no record in this case as to Hamm’s perception of how his testimony

in this case might impact his treatment in the federal case. First, Defendant made no attempt to

introduce this evidence at trial after the court granted the State’s motion in limine to exclude

evidence of the pending federal charges, much less make an offer of proof upon its continued

exclusion. See State v. Hunt, 451 S.W.3d 251, 263 (Mo. banc 2014) (“To preserve a claim of

improperly excluded evidence, the proponent must attempt to present the excluded evidence at

trial and, if it remains excluded, make a sufficient offer of proof”). Second, Defendant relies

entirely on counsel’s narrative in response to the motion in limine to demonstrate the content of

the excluded evidence and prove its admissibility. Reliance on counsel’s assertions instead of a

traditional offer of proof runs the risk that those assertions will be insufficient to accomplish the

purpose of an offer of proof, namely to demonstrate the content, purpose and other facts necessary

to establish the admissibility of the excluded evidence. State v. Murphy, 534 S.W.3d 408, 415

(Mo. App. E.D. 2017). That is precisely the problem here. Counsel’s narrative merely attests to

the existence of the federal indictment and counsel’s speculative belief that the federal case might

be impacted by Hamm’s testimony in this case. There is absolutely nothing in this narrative about




                                                 8
whether Hamm believed that or expected leniency or was motivated to testify in a way that Hamm

believed might impact his federal case.

       The cases Defendant cites in support of this point are clearly distinguishable. In State v.

Joiner, the pending charges against the witness were brought by the same prosecutor trying the

defendant’s case. 823 S.W.2d 50, 53 (Mo. App. E.D. 1991). The holding in Joiner has been

expressly limited to that circumstance, which is not present in this case. See State v. Nettles, 10

S.W.3d 521, 528 (Mo. App. E.D. 1999). In State v. Clark, there was an offer of proof in which

the witness stated he hoped he would reap a benefit in sentencing on another case by testifying

against the defendant. 364 S.W.3d 540, 544 (Mo. banc 2012). But here, there is nothing in the

record connecting Hamm’s perceptions about the federal case and his testimony in this case. Thus,

Defendant has wholly failed to demonstrate an exception to the general rule that pending charges

are inadmissible and there was no error, therefore, in excluding that evidence here.

       In his seventh point, Defendant claims the trial court erred when it prohibited him from

asking Layla White about Hamm’s reputation for lying. A person can testify as to another

witness’s reputation for truthfulness and veracity if that person is familiar with “the general

reputation of the witness in the neighborhood or among the people with whom the witness

associates.” State v. Smith, 314 S.W.3d 802, 811 (Mo. App. E.D. 2010) (internal quotation marks

and citation omitted). But one’s personal opinion about another witness’s truthfulness is irrelevant

and inadmissible. See State v. Smith, 314 S.W.3d 802, 811 (Mo. App. E.D. 2010).

       The only attempt by Defendant to solicit evidence about Hamm’s reputation for lying is as

follows:

               Q: Do you know the community that Lamont lives in generally?
               A: Yes.
               Q: Do you have an opinion about his reputation for truthfulness?
               PROSECUTOR: Objection.


                                                 9
                  COURT: Sustained.
                  DEFENDANT’S COUNSEL: Judge, I'll leave it at that. 1

Again, Defendant made no offer of proof as to White’s answer, instead relying on the assertion in

his motion for new trial that in a deposition White had said Hamm had a very bad reputation for

lying. But even assuming that “he has a very bad reputation for lying” would have been White’s

answer at trial, it was not shown that White was familiar with Hamm’s general reputation in the

community—only that she “know[s] the community”—and the question asked only for White’s

opinion about Hamm’s reputation. Defendant’s question would not have solicited proper evidence

of Hamm’s poor reputation for truthfulness. Having “left it at that” and failing to make an adequate

offer of proof, Defendant has provided no record to establish the admissibility of the challenged

testimony, and it was not error to exclude it.

         Moreover, as Defendant himself admits, the veracity of Hamm’s testimony was “already

highly questionable” based on other unchallenged evidence admitted at trial to impeach Hamm’s

credibility, including his extensive criminal history, prior gang affiliation and his admission that

he lied to police about an earlier shooting incident in August of 2014. Defendant contends that

because the jury acquitted him of the counts relating to the August incident, had these two

additional pieces of impeachment evidence—Hamm’s reputation for lying and his pending federal

charges—been admitted that “might reasonably have tipped the balance of the scales” in his favor

on the other counts. But because the jury already knew Hamm was a liar and a criminal, there is

no reasonable probability that disclosure of two additional pieces of evidence demonstrating that

he was a liar and a criminal would have affected the outcome of the trial.



1
  Defendant also cites another line of questioning in which White testified that Hamm had “lied to her before” and
was asked whether he “lies about a lot of things,” which drew an objection from the State that was also sustained. But
this exchange occurred during Codefendant’s cross-examination of the witness and, in any event, has nothing to do
with Hamm’s reputation, only White’s personal experience with Hamm.


                                                         10
       Written Sentence

       In his eighth and final point on appeal, Defendant argues the trial court plainly erred in

entering a written sentence on two counts that are materially different than the sentences imposed

during the court’s oral pronouncement on those counts. In general, where an oral pronouncement

of a defendant’s sentence is materially different than the written sentence, the oral pronouncement

controls if it is unambiguous. State v. Wolford, 590 S.W.3d 324, 330 (Mo. App. E.D. 2019).

       Here, the court orally pronounced the sentence as follows:

       Counts VII and VIII, assault first and ACA, 25 years each. “Those sentences run
       concurrent with each other for a total sentence of 25 years.”

       Counts IX and X, assault first and ACA, 25 years each. “The sentence in Count X
       runs concurrent with the sentence in Count IX for a total sentence of 25 years. But
       those sentences, again, IX and X run consecutive to the sentences in VII and VIII,
       for a total sentence of 50 years.”

       Counts XI and XII, assault first and ACA, 25 years each. “Those sentences run
       concurrent with each other for a total sentence of 25 years, but consecutive to
       Counts VII and VIII, and consecutive to Counts IX and X, for a total sentence there
       of 75 years.”

       Counts XIII and XIV, unlawful use of a weapon and ACA, 25 years each. “Those
       sentences run concurrent with each other for a total sentence of 25 years. Those
       sentences also run concurrent with Counts VII, VIII, IX, X, XI and XII.”

       Count XV, assault second on a law enforcement 15 years, and Count XVI and XVII,
       resisting stop and resisting arrest, 7 years each. “Those sentences run concurrent
       with each other for a total sentence of 15 years, but those sentences also run
       consecutive to Counts VII, VIII, IX, X, XI, XII, XIII, and XIV, for a total sentence
       of 90 years.”

       The written judgment accurately reflects this oral pronouncement except as to Count XIV.

For that count, the court checked the “concurrent” box and wrote in Count XIII next to it. But the

court also checked the “consecutive” box and wrote in Counts VII through XII next to that. Thus,

the written judgment indicates that Count XIV is to run concurrent with Count XIII, which is

consistent with the oral pronouncement, but consecutive to Counts VII through XII, which is


                                                11
materially different than the oral pronouncement that XIV would run concurrent with all of those

earlier counts. The State concedes the “consecutive” box was inadvertently marked on Count XIV.

Defendants asks us to remand for the trial court to fix the discrepancy, but we may correct this

type of error in the written judgment without remand. See Wolford, 590 S.W.3d at 332–33.

       Defendant contends the written judgment on Count XIII contains the same problem, but on

that count the court checked only the “concurrent” box and wrote in Counts VII through XII.

Although those counts are written near the “consecutive” box, the box itself is unchecked and there

is no indication that Count XIII is to run consecutively to those earlier counts. Thus, the written

judgment is the same as the oral pronouncement, and there is no error to correct on that count.

       Conclusion

       Defendant’s eighth point on appeal is granted, and all other points are denied. The

judgment and sentence is modified as follows: on Count XIV, Defendant was sentenced to 25

years in prison to be served concurrently with the sentence on Counts VII through XIII. The

judgment and sentence is affirmed as modified herein.




                                             ROBERT G. DOWD, JR., Judge

Robert M. Clayton III, P.J. and
Michael E. Gardner, J., concur.




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