               IN THE MISSOURI COURT OF APPEALS
                       WESTERN DISTRICT
STATE OF MISSOURI,                                          )
                                                            )
                                        Respondent,         )
                                                            )    WD78092
v.                                                          )
                                                            )    OPINION FILED:
                                                            )    January 26, 2016
JONATHAN L. FIELDS,                                         )
                                                            )
                                          Appellant.        )

                    Appeal from the Circuit Court of Jackson County, Missouri
                             The Honorable Joel P. Fahnestock, Judge

                     Before Division II: Cynthia L. Martin, Presiding Judge, and
                         Mark D. Pfeiffer and Karen King Mitchell, Judges

         Jonathan Fields (“Fields”) appeals his conviction and sentence, following a jury trial in

the Circuit Court of Jackson County, Missouri (“trial court”), for one count each of attempted

robbery in the first degree, armed criminal action, and resisting a lawful stop. He asserts

instructional and sentencing error. We affirm.

                                       Facts and Procedural History1

         On the morning of September 20, 2013, Fields was driving a maroon van. Theodore

Watkins (“Watkins”) was in the front passenger seat, and Marlyn Standifer (“Standifer”) and
         1
           Because we view Fields’s primary point as asserting trial court error in refusing to submit his proffered
verdict directing instructions, we view the evidence in the light most favorable to the defendant. State v. Avery, 120
S.W.3d 196, 200 (Mo. banc 2003). We recognize that as to Fields’s secondary point asserting trial court error in
imposing sentence, we are to view the facts in a light most favorable to the verdict. State v. Baumruk, 280 S.W.3d
600, 607 (Mo. banc 2009). We will do so in considering any additional facts relevant to the disposition of the
secondary point. See State v. McCabe, 345 S.W.3d 311, 313 n.1 (Mo. App. W.D. 2011).
Fields’s brother, Joshua Fields, were in the back seat. Watkins heard Joshua Fields talking on

the phone, asking someone named “Bubba,” “Which house is it?” Joshua Fields directed Fields

to drive to the house with the bikes in front of it. The house was the residence of Daniel Starr

(“Starr”). Fields parked in front of the house next to Starr’s house. Joshua Fields said, “We’re

going to wait for the guy to come out of the house.” Watkins said, “I’m not waiting. We’re

going to go in there now.”

       Joshua Fields and Standifer exited the van; both had weapons.            They went to the

backyard of Starr’s house. Starr’s next-door neighbor, Curtis Washington (“Washington”), was

cleaning up debris in Starr’s backyard. Watkins exited the van and went to the backyard of

Starr’s house. Joshua Fields and Standifer had Washington at gunpoint. One of the gunmen told

Washington that if he didn’t get them into Starr’s house, he would be killed. The men directed

Washington to knock on Starr’s back door. Two of Starr’s children answered the door and told

Washington that Starr was sleeping. Washington asked them to wake Starr up. One of Starr’s

daughters woke him up and told him that Washington was at the door. When Starr unlocked the

door, Standifer pushed Washington in; Joshua Fields and Watkins rushed in after them.

Standifer pointed his gun at Starr.       Starr ran back to the bedroom where his wife and

one-year-old child were, shut the door, and told his wife to call the police.

       Starr retrieved his .45 Glock semi-automatic handgun from under his mattress. He

cracked the door open an inch or two, looked down the hallway, and saw one of the three men

holding Washington. One of the men told Starr to come out of the bedroom because “[y]our kids

is in the house. . . . You got ten seconds or it’s going to be a murder.” When Starr heard a single

shot, he started firing down the hallway at the men, and Standifer and Joshua Fields fired back.

Watkins ran out of the house and jumped back into the front seat of the van. After exchanging a

round of shots, Standifer and Joshua Fields stopped firing. Starr heard his front door open, so he

                                                  2
ran out after the men. He saw Standifer and Joshua Fields get into the maroon van parked in

front of his house and shot at the van as it drove away until his gun was empty. At least one of

his bullets shattered the van’s rear window.

       Kansas City, Missouri, Police Department Patrol Officer David Elliott received a call

over his police radio to be on the lookout for a maroon van in connection with an armed robbery

in progress at a residence. Less than a minute later, Officer Elliott saw a maroon van matching

the broadcast description. He noticed that the van’s back window had a big hole in it, as if the

window had been shot out. Officer Elliott turned on the patrol car’s lights and siren and pursued

the van.

       During the pursuit, the front-seat passenger, Watkins, jumped out of the van and ran

through a wooded area. He was later taken into custody when he ran near a highway. The

pursuit continued until the driver, Fields, lost control and the van went into a ditch. During the

chase, the officer observed Watkins throw several items, including Standifer’s and Joshua

Fields’s guns, out the passenger side window of the van. Police recovered a semi-automatic

handgun, blue gloves, a floor mat, and various other items. Fields, Standifer, and Joshua Fields

were taken into custody.

       Fields was charged as a prior and persistent offender with one count of attempted robbery

in the first degree, one count of armed criminal action, and one count of resisting a lawful stop.

While he was in jail, Fields made telephone calls to his girlfriend and to his brothers, during

which he expressed his displeasure with Watkins for cooperating with the police in the

investigation of what took place in Starr’s house.

       At trial, after the State presented its evidence and rested its case, Fields moved for

judgment of acquittal at the close of the State’s evidence. The trial court denied Fields’s motion.

Thereafter, Fields rested without presenting any evidence. He moved for judgment of acquittal

                                                 3
at the close of all the evidence; the trial court denied the motion. Fields’s counsel proffered

alternative verdict directing instructions on accomplice liability, which were refused. The jury

found Fields guilty of attempted robbery in the first degree and armed criminal action, which

were submitted on an accomplice liability theory, and of resisting a lawful stop, which was

submitted on principal liability.

       At the sentencing hearing, the State recalled Kansas City, Missouri, Police Detective

Troy Schwalm as a witness to testify regarding Fields’s jail telephone calls with his brothers

concerning the operation of their family business of buying and selling of narcotics. The State

recommended that the trial court sentence Fields as a persistent offender to concurrent sentences

of twenty-five years’ imprisonment for attempted robbery, ten years for armed criminal action,

and seven years for resisting a lawful stop. The trial court denied Fields’s motion for a new trial.

The trial court imposed the sentences recommended by the State.

       Fields appealed.

                                    Point I – Jury Instructions

                                       Standard of Review

       “Our review of a trial court’s refusal to submit a tendered jury instruction is limited to

determining whether the trial court abused its discretion.” State v. Coen, 364 S.W.3d 767, 771

(Mo. App. W.D. 2012). “A trial court abuses its discretion if the ruling is clearly against the

logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice

and indicate a lack of careful consideration.” Id. (internal quotation omitted).

                                             Analysis

       In Fields’s first point, he asserts that the trial court abused its discretion in refusing to

submit his modified verdict directing instructions on accomplice liability. He complains that the




                                                 4
MAI-approved instructions submitted to the jury erroneously instructed the jury on accomplice

liability. We disagree.

        The State proffered the following verdict directing instruction for attempted robbery in

the first degree:

                                      INSTRUCTION NO. 6

                 A person is responsible for his own conduct and he is also responsible for
        the conduct of other persons in committing an offense if, before or during the
        commission of an offense, he acts with the other persons with the common
        purpose of committing that offense or if, before or during the commission of an
        offense, for the purpose of committing that offense, he aids or encourages the
        other persons in committing it. The commission of an offense includes immediate
        flight therefrom.

               As to Count I, if you find and believe from the evidence beyond a
        reasonable doubt:

                First, that on or about September 20, 2013, in the County of Jackson, State
                         of Missouri, Theodore Watkins, Joshua Fields, or Marlyn Standifer
                         forcibly entered the residence of Daniel Starr at 7111 East 111th
                         Terrace, Kansas City, Missouri, and displayed what appeared to be
                         a deadly weapon, and

                Second, that such conduct was a substantial step toward the commission of
                      the offense of robbery in the first degree of Daniel Starr at 7111
                      East 111th Terrace, Kansas City, Missouri, and

                Third, that Theodore Watkins, Joshua Fields, or Marlyn Standifer engaged
                        in such conduct for the purpose of committing such robbery in the
                        first degree,

        then you are instructed that the offense of attempted robbery in the first degree
        has occurred, and if you further find and believe from the evidence beyond a
        reasonable doubt:

                Fourth, that with the purpose of promoting or furthering the commission
                       of that attempted robbery in the first degree, the defendant aided or
                       encouraged Theodore Watkins, Joshua Fields, or Marlyn Standifer
                       in committing the offense,

        then you will find the defendant guilty under Count I of attempted robbery in the
        first degree.



                                                 5
               However, unless you find and believe from the evidence beyond a
       reasonable doubt each and all of these propositions, you must find the defendant
       not guilty of that offense.

              A person commits the offense of robbery in the first degree when he takes
       property with the purpose of withholding it from the owner permanently, in doing
       so uses or threatens the immediate use of physical force in preventing or
       overcoming resistance to the taking of the property, and in the course of taking
       the property displays or threatens the use of what appears to be a deadly weapon.

               As used in this instruction, the term “substantial step” means conduct that
       is strongly corroborative of the firmness of the defendant’s purpose to complete
       the commission of the offense of robbery in the first degree.

The State proffered the following verdict directing instruction for armed criminal action:

                                            INSTRUCTION NO. 7

                A person is responsible for his own conduct and he is also responsible for
       the conduct of other persons in committing an offense if, before or during the
       commission of an offense, he acts with the other persons with the common
       purpose of committing that offense or if, before or during the commission of an
       offense, for the purpose of committing that offense, he aids or encourages the
       other persons in committing it. The commission of an offense includes immediate
       flight therefrom.2

              As to Count II, if you find and believe from the evidence beyond a
       reasonable doubt:

                  First, that defendant is guilty of the offense of attempted robbery in the
                           first degree, as submitted in Instruction No. 6, and

                  Second, that Theodore Watkins, Joshua Fields, or Marlyn Standifer
                        committed that offense by or with or through, the knowing use or
                        assistance or aid of a deadly weapon,

       then you are instructed that the offense of armed criminal action has occurred, and
       if you further find and believe from the evidence beyond a reasonable doubt:

                  Third, that with the purpose of promoting or furthering the commission of
                          that armed criminal action, the defendant aided or encouraged
                          Theodore Watkins, Joshua Fields, or Marlyn Standifer in
                          committing the offense,

       then you will find the defendant guilty under Count II of armed criminal action.


       2
           Emphasis was added by this Court in both instructions.

                                                         6
               However, unless you find and believe from the evidence beyond a
       reasonable doubt each and all of these propositions, you must find the defendant
       not guilty of that offense.

Fields’s counsel objected to the State’s instructions on the ground that the last sentence in the

first paragraph, while it follows MAI, allegedly erroneously instructs the jury on the law of

accomplice liability. Fields’s counsel argued that section 562.041 limits accomplice liability to

what happens “before and during” the crime, and flight as a continuation of the crime is not

supported by the statute. Fields’s counsel proffered jury instructions on Counts I and II that were

identical to the State’s proffered instructions, except that the sentence on immediate flight was

omitted.   The trial court refused Fields’s proffered instructions and submitted the State’s

proffered verdict directing instructions on Counts I and II to the jury, over Fields’s objections.

       MAI-CR 3d 304.04 provides for the modification of the ordinary verdict directing

instruction for an offense to cover the situation where the defendant acted with or aided another

person or persons in the commission of an offense. Paragraph 8 of the Notes on Use for this

instruction is applicable:

       [i]n cases where, in addition to evidence of the defendant’s assisting or
       encouraging before or during the offense, there is evidence of assistance or
       encouragement occurring after the offense has been completed, and the defendant
       contends that the only aid, if any, provided by the defendant occurred after the
       offense was completed.

MAI-CR 3d 304.04, Notes on Use ¶ 8 (Sept. 1, 2003). Under these circumstances, the opening

paragraph of the instruction is modified to add at the end: “The commission of an offense

includes immediate flight therefrom.” MAI-CR 3d 304.04, Notes on Use ¶ 8 (Sept. 1, 2003).

       Rule 28.02(c) provides that “[w]henever there is an MAI-CR instruction or verdict form

applicable under the law and Notes on Use, the MAI-CR instruction or verdict form shall be

given or used to the exclusion of any other instruction or verdict form.” (Emphasis added.)

Here, there was an evidentiary basis for modifying Instructions 6 and 7 by including the

                                                  7
language contained in Notes on Use ¶ 8.      The two jury instructions, thus, were in conformity

with the requirements of MAI-CR 3d 304.04 and its concomitant Note on Use ¶ 8.

       Fields’s claim of instructional error is based on the language in section 562.041.1(2)

RSMo 2000:

       1. A person is criminally responsible for the conduct of another when

       ....

       (2) Either before or during the commission of an offense with the purpose of
       promoting the commission of an offense, he aids or agrees to aid or attempts to
       aid such other person in planning, committing or attempting to commit the
       offense.

Fields argues that the statute pertains only to conduct occurring either before or during the

commission of the offense and the statute does not specifically extend accomplice liability to

conduct occurring during the immediate flight from the commission of the offense. Therefore,

according to Fields, the submitted instructions misstated the law, and he is entitled to a new trial

before a properly instructed jury. In so arguing, Fields ignores the case law describing “getaway

car” operation and “flight” in the “getaway car” as being an integral part of committing an

underlying offense and supporting accomplice liability.

       “Any evidence, either direct or circumstantial, that shows affirmative participation in

aiding the principal to commit the crime is sufficient to support a conviction.” State v. Williams,

409 S.W.3d 460, 468 (Mo. App. W.D. 2013) (internal quotation omitted).                “Affirmative

participation may be proven by inference . . . .” Id. “Circumstances that may support the

inference of an accomplice’s affirmative participation include presence at the crime scene; flight

therefrom; association or companionship with others involved before, during, and after the

crime; conduct before and after the offense; knowledge; motive; and a defendant’s attempt to

cover up his involvement.” Id. (emphasis added) (internal quotation omitted).



                                                 8
        Proof that a defendant acted as the driver of a getaway vehicle for a robbery has been

held to be sufficient evidence of encouragement and participation to create accomplice liability.

See State v. Jones, 296 S.W.3d 506, 510 (Mo. App. E.D. 2009) (“[P]roof that the defendant knew

the principal actor had robbed someone and that the defendant acted as a getaway driver is

sufficient evidence of participation to support a finding of accomplice liability.); State v. Meuir,

138 S.W.3d 137, 144 (Mo. App. S.D. 2004) (“[P]roof that a defendant acted as the driver of a

getaway vehicle for a robbery” “has been held to be sufficient evidence of encouragement and

participation to create accomplice liability.”).      In this case, the evidence and reasonable

inferences showed that Fields drove Watkins, Standifer, and Joshua Fields to the crime scene and

acted as the getaway driver after the crime was committed.

        Accordingly, MAI-CR 3d 304.04 and its concomitant Note on Use ¶ 8 accurately states

the law of accomplice liability and the trial court did not err in refusing Fields’s proffered verdict

directing instructions and submitting the State’s modified verdict directing instructions to the

jury.

        Point I is denied.

                                       Point II – Sentencing

        In Fields’s second point, he asserts that the trial court erred in sentencing him to an

excessive term of imprisonment. He contends that the trial court sought to punish him for

maintaining his innocence and for exercising his right to trial. He further claims that his

punishment was excessive because it exceeded the State’s pre-trial ten-year sentence

recommendation and because other participants in the crime received lesser sentences after

pleading guilty. He argues that his sentence totaling twenty-five years was a violation of his

rights to due process of law and to fair and impartial sentencing.




                                                  9
                                        Standard of Review

       A trial court’s sentencing decision is reviewed for abuse of discretion. State v. Ise, 460

S.W.3d 448, 464 (Mo. App. W.D. 2015). “An abuse of discretion occurs when the trial court’s

action is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of

careful consideration.” Id. (internal quotation omitted).

                                              Analysis

       Section 557.036.1 RSMo Cum. Supp. 2013 provides that the sentencing court “shall

decide the extent or duration of sentence or other disposition to be imposed under all the

circumstances, having regard to the nature and circumstances of the offense and the history and

character of the defendant and render judgment accordingly.” “It is fundamental that one

convicted of a crime must not be subjected to a more severe punishment simply because he or

she exercised a constitutional right.” Ise, 460 S.W.3d at 464 (internal quotation omitted). In

Taylor v. State, this court set forth the applicable standard:

       [I]f a defendant’s exercise of a constitutional right was an actual factor considered
       by the sentencing court in imposing sentencing, then the exercise of the right was
       a ‘determinative factor’ in sentencing, and retaliation has been demonstrated, even
       if other factors could have been relied on by the trial court to support the same
       sentence.

392 S.W.3d 477, 488 (Mo. App. W.D. 2012). The determinative factor test is satisfied when

“words stated by or attributed to the trial court [are] directly connected [to] the imposition of

enhanced sentencing with a comment about the exercise of a constitutional right.” Id. at 490.

“[S]omething beyond the bare possibility that retaliation could have been a factor in sentencing

must be shown.” Id. at 488.

       At the sentencing hearing, the State recalled Detective Schwalm, who testified to the

content of telephone calls made from Fields’s telephone account at the jail among Fields and his

two brothers. According to Detective Schwalm, Fields and Joshua Fields talked with Jason

                                                  10
Fields, who was not in custody, about Jason setting up a drug distribution network while Fields

and Joshua Fields were incarcerated.

       The State recommended that Fields be sentenced as a persistent offender to twenty-five

years’ imprisonment on Count I, ten years’ imprisonment on Count II, and seven years’

imprisonment on Count III, to be served concurrently.

       Fields’s counsel argued that the State’s original offer of ten years’ imprisonment if Fields

pleaded guilty was the appropriate sentence because his involvement in the crime was minimal

compared to the other participants. The prosecutor responded that the State’s original plea offer

was made before the State discovered Fields’s prison phone calls—phone calls suggesting that

Fields lacked remorse for the crimes he had committed and that he was more interested in the

possibility of future criminal endeavors as opposed to rehabilitation of his criminal past.

       After hearing the evidence and arguments, the trial court pronounced sentence:

       All right. Thank you. Then in Case No. 1316-CR03059-02:

              Count I, attempted robbery in the first degree, a Class B felony, however,
       the Court had available the A punishment range, I sentence you to 25 years in the
       Missouri Division of Adult Institutions.

              Count II, armed criminal action, an unclassified felony, I sentence you to
       ten years in the Missouri Division of Adult Institutions.

              On Count III, resisting arrest, a Class D felony, I sentence you to seven
       years in the Missouri Division of Adult Institutions. All those counts will run
       concurrently, meaning at the same time.

The trial court did not justify, explain, or detail to Fields the factors taken into account at

sentencing. The trial court made no comment indicating that Fields’s decision to exercise a

constitutional right (i.e., maintaining his innocence and exercising his right to proceed with a

trial) was an actual factor the court considered in imposing sentence. We find no comments by

the trial court or evidence in the record even suggesting the possibility that the trial court

improperly punished Fields for claiming innocence and exercising his constitutional right to
                                                 11
proceed to trial and find no abuse of discretion in the sentences imposed. To the contrary, the

record would have reflected to the trial court that Fields had no remorse for the criminal conduct

of which he was convicted and, instead, demonstrated a propensity to have telephone discussions

with family members about the possibility of considering the perpetration of other criminal

endeavors in the future.

         Given the record in this case, the trial court did not abuse its discretion in the imposition

of Fields’s sentence.3

         Point II is denied.

                                                    Conclusion

         We affirm the trial court’s judgment.




                                                       Mark D. Pfeiffer, Judge

Cynthia L. Martin, Presiding Judge,
and Karen King Mitchell, Judge, concur.




         3
            Fields also argues in the argument portion of his appellate brief that the State’s recommendation that he
be sentenced to twenty-five years’ imprisonment manifested prosecutorial vindictiveness. However, Fields failed to
raise this claim in his point relied on. “The argument shall be limited to those errors included in the ‘Points Relied
On.’” Rule 84.04(e). “Issues raised in the argument portion of a brief but not in the point relied on are not
preserved for appeal.” State v. Karr, 968 S.W.2d 712, 717 (Mo. App. W.D. 1998). Therefore, we need not and do
not consider Fields’s claim of prosecutorial vindictiveness. That said, ex gratia, we reiterate that the record reflects
that after the State’s original plea offer, the State became aware of Fields’s phone calls from jail in which Fields was
demonstrating a lack of remorse and, instead of focusing on rehabilitating his past criminal conduct, was engaging in
telephone discussions reflecting an interest in the possibility of future criminal conduct. This was a relevant and
appropriate factor for the State to consider in its sentencing recommendation to the court.

                                                          12
