             IN THE MISSOURI COURT OF APPEALS
                     WESTERN DISTRICT
STATE OF MISSOURI,                                     )
                                                       )
                    Respondent,                        )
                                                       )
vs.                                                    )        WD78090
                                                       )
CALVIN HUTSON,                                         )        Opinion filed: April 19, 2016
                                                       )
                                                       )
                    Appellant.                         )

           APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY, MISSOURI
                    THE HONORABLE DANIEL R. GREEN, JUDGE

                         Before Division One: Victor C. Howard, Presiding Judge,
                            Gary D. Witt, Judge and Zel Fischer, Special Judge


           Calvin Hutson appeals his convictions and sentences following a jury trial for murder in

the second degree (felony), section 565.021;1 robbery in the first degree, section 569.020; armed

criminal action, section 571.015; and unlawful possession of a firearm, section 571.070, RSMo

Cum. Supp. 2013. Hutson raises four points on appeal challenging the admission of certain

testimony by witnesses; the sufficiency of the evidence to support the felony murder, robbery,

and armed criminal action convictions; and the giving of the hammer instruction to the jury. The

judgment of convictions is affirmed.



1
    All statutory references are to RSMo 2000 unless otherwise indicated.
                                      Factual Background

       Viewed in the light most favorable to the verdict, the evidence was as follows. On

December 27, 2012, Justin Beasley and Alexzondrea Walker met with the appellant, Calvin

Hutson, at an apartment in Jefferson City. Hutson made statements indicating that he wanted to

rob someone of marijuana. Hutson asked Beasley to find him a gun. They drove to the home of

a friend of Beasley’s and borrowed a nine-millimeter handgun. Hutson then made a phone call

to a man named Andre Hudson, the victim.

       That same evening, David Evans and the victim drove to the victim’s house in Holt’s

Summit. Evans wanted to borrow a shotgun from the victim because he had had trouble with his

stepdaughter’s boyfriend earlier in the day. The victim, the victim’s wife, and Evans then left in

a Chevy Suburban to drive back to Jefferson City. The victim’s wife was driving. The three first

stopped at a nearby gas station so the victim could buy liquor. The victim’s cell phone was

ringing nonstop. Hutson was calling the victim, and the victim’s wife could tell from the

conversations that the phone calls concerned a marijuana transaction. The victim told his wife

that they were going to meet somebody to get some money.

       In the meantime, Hutson and Beasley had gone to Zesto’s Drive-In restaurant in

Beasley’s Dodge Stratus. The victim directed his wife to drive to Zesto’s and to pull into an

alley above and behind the restaurant. Hutson told Beasley to follow the Suburban into the alley.

       The two vehicles stopped in the alley, and the victim got out of the Suburban and into the

back passenger seat of the Stratus behind Hutson. The victim had a handgun with him. Beasley

testified that he had the music turned up loud and could not hear what was being said between

Hutson and the victim. He said he heard someone yell and then a gunshot. He got out of the car




                                                2
and ran. He heard five or six more shots as he ran. Beasley testified that the victim fired the first

shot.

        As the victim’s wife sat in the Suburban, she saw the Stratus start to shake. She and

Evans then heard multiple gunshots and saw muzzle flashes inside the car. Bullets shattered the

back window of the Suburban. The victim’s wife saw the driver running, and she pulled the

Suburban around to try to follow him as she called 911. She and Evans then saw Hutson

walking down some steps. He was bloody and appeared dizzy but took off running when the

victim’s wife said to Evans, “That’s him.” The victim’s wife then drove after Hutson. She hit

Hutson with the SUV when he ran out in front of her as she drove down the alley. Hutson got up

and ran away, but he only made it about a block before the police stopped him.

         Meanwhile, Beasley returned to the Stratus and found the victim in the back seat. He

believed the victim was dead. Beasley got into the car and drove off but only got a short distance

before police started following him. He stopped the car, got out, and ran back to his house where

he changed clothes and fled. He eventually turned himself in. The officer who had been

pursuing the Stratus found the victim’s body in the back passenger seat. The victim’s pockets

contained $61 in cash, a bag of marijuana, and his phone.

        At the scene, Hutson told the police that he was in a gray car with a man named Terion

McDaniels when another vehicle pulled up and its occupants shot him. Hutson was taken to the

hospital with three gunshot wounds to his left arm, side, and hip. At the hospital, Hutson gave

police a different account of how he was shot. He said that he had gone to the area to meet a

man named Jay who wanted to buy some DVDs or CDs from him. After Jay got into the back

seat of the car and while they were talking, shots suddenly rang out inside the vehicle. Hutson




                                                 3
said he was hit and got out and ran until he collapsed where police found him. Hutson denied

having any weapons at the meeting.

       Police found a blood trail running from the scene of the shooting to the location where

Hutson was found. An officer who followed the trail found a bloody piece of carpet alongside a

shed. He discovered a Hi-Point nine-millimeter pistol and two large bags of marijuana under the

carpet. The slide of the handgun was in the lock-back position, which commonly means that all

of the bullets have been fired from the magazine. Hutson’s DNA was found on the opening of

the gun’s barrel and on the grip.

       Police found a Kel-Tec nine-millimeter pistol in the Stratus under the victim’s body. The

victim’s DNA was found on the grip of that handgun. The magazine contained two rounds, and

a third round was ejected from the chamber. A total of eight nine-millimeter shell casings and a

bullet were found in the back of the car, including one shell casing that was under the victim’s

body. Forensic tests showed that four of the shell casings had been fired from the High Point

and three had been fired from the Kel-Tec. The eighth cartridge could not be matched to a

particular handgun, but it had class characteristics consistent with being fired from a Hi-Point

and inconsistent with being fired from a Kel-Tec.

       Analysis of the recovered cell phones that belonged to Hutson and the victim showed that

Hutson made several calls to the victim on December 27 beginning at shortly before 3:00 pm and

ending shortly after 7:00 pm. The victim called Hutson about six minutes after the last phone

call from Hutson.

       An autopsy showed that the victim had been shot four times. He suffered wounds to both

arms, a shoulder, and the head. The fatal wound entered the left eye damaging the brain.




                                               4
       Hutson did not testify. He presented the testimony of a man who lived near the scene of

the shooting and recovered the shotgun that Evans had left near a shed. Hutson’s defense at trial

was that he shot the victim in self-defense after the victim shot him first. He requested a self-

defense instruction, and one was given.

       The jury found Hutson guilty on all counts. The trial court sentenced him to consecutive

sentences of life imprisonment for felony murder, fifteen years for robbery, fifteen years for

armed criminal action, and a concurrent sentence of seven years for unlawful possession of a

firearm. This appeal by Hutson followed.

                                   Admission of Testimony

       In the first two points addressed in this appeal, Hutson challenges the trial court’s

admission of certain testimony of Walker and Beasley. Walker testified that when Beasley said

he “didn’t feel right,” he meant “he didn’t feel right about going with [Hutson] to rob

somebody.” Beasley testified that when Hutson used the term “a lick,” he meant a robbery.

Hutson argues that Walker’s and Beasley’s opinions about what other people meant when they

made these statements were speculation without any probative value and were highly prejudicial.

       Walker initially testified without objection that Hutson asked her boyfriend Beasley if he

knew of “any licks we can hit.” She then testified without objection that “people my age know a

lick means a quick come on, robbery, something quick coming or something.” The prosecutor

asked Walker if she had given Beasley any advice following his conversation with Hutson:

       A. No. It wasn’t—not after the conversation. It was me and Justin were by
       ourselves. He was taking me to work. He said, I do not feel right about it. And I
       said, if you don’t feel right, don’t do it. The defendant wasn’t there.

       Q: Do you know what [Beasley] was talking about when he said something didn’t feel
       right?




                                               5
Defense counsel objected that the question called for speculation as to what Beasley was talking

about. The trial court overruled the objection, and Walker testified:

       A: He was basically talking about going to rob. He didn’t feel right about going
       with [Hutson] to rob somebody, to hit a lick, he didn’t feel right about it.

       Beasley was the next witness to testify for the State. He testified without objection that

Hutson wanted to talk to him about doing a “lick”:

       Q: And what’s the word “lick” mean?

       A: It can mean a lot of things.

       Q: What did it mean when you were talking about it with him?

       A: A robbery.

       Q: And so what did you do after—did he make any request of you, he being the
       defendant, Calvin Hutson—

       A: Yes.

       Q: —ask you for anything?

       A: Yes.

       Q: What was that?

       A: A gun.

       Defense counsel next elicited from Beasley during cross-examination that Hutson never

said the word robbery, only the term “lick.” Defense counsel later returned to the subject in his

cross-examination:

       Q: I want to talk to you about “hit a lick.” [Hutson] said hit a lick. Right?

       A: Yeah.

       Q: You’ve said hit a lick before, haven’t you?

       A: Yes.



                                                 6
Q: And lick can mean things other than robbery, can’t it?

A: Yes.

Q: It means to get cash fast, doesn’t it?

A: Yeah.

Q: It can mean buy some weed and turn around and sell it at a profit, couldn’t it?

A: Yes.

Q: It could mean selling fake weed and making a profit, couldn’t it?

A: Yes.

Q: In fact, you recently won playing some dice, didn’t you?

A: Yes.

Q: And you put your hands in the air?

A: Yeah.

Q: And you said, I hit a lick?

A: Yep.

Q: And you weren’t talking about a robbery?

A: No.

Q: You were talking about winning a dice game.

A: Yes.

Q: And [Hutson] told you, I’m going to hit a lick?

A: Yes

Q: He didn’t say robbery?

A: No.

The prosecutor then questioned Beasley on redirect:



                                            7
       Q: Mr. Beasley, when [Hutson] was using the term “lick” to you that afternoon
       on December 27th, what was he using it to mean at that time?

At this point, Defense counsel objected for the first time about testimony concerning the term “a

lick,” and the trial court overruled the objection. The prosecutor continued:

       Q: And what was he using it to mean when he was talking to you that afternoon?

       A: A robbery.

       Hutson’s motion for new trial claimed that the trial court erred in overruling his objection

to Beasley’s testimony about what Hutson meant when he said he was going to hit a lick. The

motion, however, did not raise a claim of error regarding Walker’s testimony about what Beasley

meant when he said he didn’t feel right; therefore, that claim was not properly preserved for

appeal. State v. Tripp, 168 S.W.2d 667, 679 (Mo. App. W.D. 2005). Issues not preserved may

be reviewed for plain error only, which requires the reviewing court to find that manifest

injustice or a miscarriage of justice has resulted from the trial court error. State v. Baumruk, 280

S.W.3d 600, 607 (Mo. banc 2009).

       A trial court’s ruling on the admissibility of evidence is reviewed for abuse of discretion.

State v. Winfrey, 337 S.W.3d 1, 5 (Mo. banc 2011). “The trial court abuses its discretion when

its ruling is clearly against the logic of the circumstances and is so unreasonable as to indicate a

lack of careful consideration.” Id. (internal quotes and citation omitted). The appellate court

reviews for prejudice, not mere error, and will reverse only if the error was so prejudicial that it

deprived the defendant of a fair trial. Id. “Trial court error is prejudicial if there is a reasonable

probability that the court’s error affected the outcome of the trial.” Id. (internal quotes and

citation omitted).

       The trial court has broad discretion to admit a lay witness’s testimony. State v. Davidson,

242 S.W.3d 409, 413 (Mo. App. E.D. 2007). Generally, a lay witness must state facts from

                                                  8
which the jury forms an opinion and may not testify regarding his or her opinion on a matter in

dispute. State v. Starkey, 380 S.W.3d 636, 647 (Mo. App. E.D. 2012); Davidson, 242 S.W.3d at

413. An exception to the general rule allows a lay witness to provide an opinion if the witness

possesses knowledge that is not available to the jury and that would be helpful to the jury to

determine a disputed issue. Id.; State v. Bivines, 231 S.W.3d 889, 893 (Mo. App. W.D. 2007).

Additionally, “a witness who personally observed events may testify to his matter of fact

comprehension of what he has seen in a descriptive manner which is actually a conclusion,

opinion or inference, if the inference is common and accords with the ordinary experiences of

everyday life.” Davidson, 242 S.W.3d at 414 (internal quotes and citation omitted). Such

practice is justified by convenience as a “short-hand rendition of a composite situation” and by

necessity to avoid losing evidence where it would be extremely difficult or impossible for the

witness to convey an accurate sense of his or her observations if limited to a statement of facts in

the traditional sense. Id. Thus, in Davidson, the witness was permitted to testify to her opinion

about the meaning of statements made by the defendant in a series of letters that he addressed to

her. Id. at 413-414. In State v. Langford, 455 S.W.3d 73, 76-77 (Mo. App. S.D. 2014), a store

clerk was permitted to testify about her impression that the defendant was attempting to pay for

items with a fake fifty-dollar bill that he laid on the counter. And in Starkey, a prosecutor was

allowed to testify as a crime victim that he believed the defendant’s threats against him were

credible. 380 S.W.3d at 647-48.

       In this case, Walker’s testimony about what Beasley meant when he said he didn’t feel

right was her matter of fact comprehension of the entire transaction. Walker first witnessed

Hutson ask Beasley about “hitting a lick” and finding a gun and then she had the private

conversation with Beasley. As in Davidson, Walker’s testimony was a “short-hand rendition of a



                                                 9
composite situation.”     She had personal knowledge of the matter having observed the

conversation between Hutson and Beasley, and her opinion about what Beasley meant was

helpful to the jury. The trial court did not plainly err in allowing her testimony.

       Similarly, Beasley’s testimony about what Hutson meant by the term “lick” was also

admissible. Beasley had special knowledge regarding his conversation with Hutson, and he

further had a familiarity with the slang term as evidenced by his testimony regarding other

meanings the word can have. His testimony assisted the jury in determining the meaning of the

slang word unfamiliar to the average juror and the context of his conversation with Hutson.

       Even if the admission of Beasley’s testimony were improper, Hutson would not be

entitled to relief. A defendant is not prejudiced when allegedly improper evidence was merely

cumulative to other evidence admitted without objection establishing the same facts. State v.

Davies, 330 S.W.3d 775, 797 (Mo. App. W.D. 2010). Prior to Beasley’s testimony, Walker

testified without objection that she heard Hutson asked Beasley if he knew of “any licks we can

hit” and that a “lick” means a robbery. Furthermore, Beasley testified on direct examination

without objection that Hutson wanted to talk to him about doing a “lick” and that a “lick” meant

a robbery in that conversation. Beasley’s testimony that Hutson objected to on redirect was,

therefore, merely cumulative to testimony on the same matter already admitted without

objection. The points are denied.

                                    Sufficiency of the Evidence

       In the next point addressed in this appeal, Hutson contends that the trial court erred in

denying his motion for judgment of acquittal and entering judgment of conviction and sentence

for first-degree robbery. He argues that the evidence was insufficient to establish beyond a

reasonable doubt that he tried to forcibly steal marijuana from the victim with the use or threat of



                                                 10
a firearm. He further argues that because the first-degree robbery charge formed the basis for

both the felony murder and armed criminal action charges, those convictions were also not

supported by sufficient evidence for the same reason.

        Review of a challenge to the sufficiency of the evidence to support a criminal conviction

is limited to determining whether sufficient evidence was presented from which a reasonable

juror could find the defendant guilty beyond a reasonable doubt. State v. Nash, 339 S.W.3d 500,

508-09 (Mo. banc 2011). It is not an assessment of whether the reviewing 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 rationale fact-finder could have found the

essential elements of the crime beyond a reasonable doubt. Id. The evidence and all reasonable

inferences drawn from the evidence are viewed in the light most favorable to the jury’s verdict,

and any contrary evidence and inferences are disregarded. Id. at 509. The reviewing court does

not act as a “super juror” with veto powers but gives great deference to the trier of fact. Id. It

will not weigh the evidence anew since the fact-finder may believe all, some, or none of the

testimony of a witness when considered with the facts, circumstances, and other testimony in the

case. Id. The reviewing court reviews a sufficiency of the evidence claim not based on how the

jury was instructed but upon how the crime was charged. State v. Zetina-Torres, No. SC95194,

slip op. at 6 (Mo. banc March 1, 2016).

        Count II of the substitute information charged that Hutson committed attempted robbery

in the first degree:

        [I]n that on or about December 27, 2012, in the County of Cole, State of Missouri,
        the defendant, acting with another, set up a purported drug transaction with the
        victim, and threatened him with a firearm and demanded money and drugs, and
        such conduct was a substantial step toward the commission of the crime of
        Robbery in the First Degree, and was done for the purpose of committing such
        robbery.

                                               11
       For purposes of this case, a person commits the crime of first-degree robbery “when he

forcibly steals property and in the course thereof he, or another participant in the crime, … [u]ses

or threatens the immediate use of a dangerous instrument against any person; or … “[d]isplays or

threatens the use of what appears to be a deadly weapon or dangerous instrument.” § 560.020.1.

       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:

       (a) Preventing or overcoming resistance to the taking of the property or to the
           retention thereof immediately after the taking; or

       (b) Compelling the owner of such property or another person to deliver up the
           property or to engage in other conduct which aids in the commission of the
           theft.”

§ 569.010(1). To be guilty of an attempt, the person must, with the purpose of committing the

offense, do any act that is a substantial step toward the commission of the offense. State v. Ess,

453 S.W.3d 196, 208 (Mo. banc 2015)(citing § 564.011). “A ‘substantial step’ is conduct which

is strongly corroborative of the firmness of the actor’s purpose to complete the commission of

the offense.” § 564.011.

       Hutson argues that the State presented no evidence that he displayed, used, or threatened

the use of a gun in an attempt to forcibly steal money or drugs from the victim. Specifically, he

argues that no evidence was presented that he displayed any weapon prior to being shot by the

victim, that he made any physical or verbal conduct indicating a threat to use a weapon, or that

he was attempting to forcibly steal any property from the victim.

       The phrases “in the course thereof” and “in the course of” in sections 560.020 and

560.010(1) require consideration of the entire course of the robbery in determining whether the

elements of robbery have been satisfied. State v. Summers, 456 S.W.3d 441, 444-45 (Mo. App.



                                                12
W.D. 2014). Thus, not only are the circumstances immediately surrounding the alleged robbery

considered but also events prior to the robbery. Id. at 445. If the use of a weapon is a part of the

whole, single transaction, the offense is robbery. Id. at 445. It is the use of a weapon “in the

course of” forcible stealing that makes the offense first-degree robbery. Id.

       In this case, consideration of events prior to and in the entire course of the attempted

robbery indicates that Hutson used a weapon to try to take the victim’s marijuana. He planned a

robbery and asked Beasley to find a gun he could use, he contacted the victim and set up the

purported drug deal at which the robbery would take place, he went to that meeting armed with a

handgun, and he shot the victim four times in the car. Bags of marijuana were found alongside

his handgun, which he had discarded as he tried to flee the scene.

       In making his argument under this point, Hutson relies on State v. Presberry, 128 S.W.3d

80 (Mo. App. E.D. 2003).        In that case, the Eastern District overturned the defendant’s

conviction of attempted first-degree robbery. Id. at 95. Evidence presented in the case showed

that police officers were conducting surveillance of an ATM where customers had recently been

accosted by a man; some reported that the man had displayed a gun. Id. at 93. The officers saw

a man on a cell phone start to approach a car at the ATM and then run away; the defendant was

sitting in a vehicle nearby with binoculars and a cell phone. Id. The police stopped the man who

ran from the ATM and found a pellet gun in the sleeve of his coat. Id. The defendant and the

other man had been communicating by cell phone. Id.

       In reversing the conviction, the Eastern District relied on this court’s decision in State v.

Ballenger, 72 S.W.3d 154, 157 (Mo. App. W.D. 2002). Presberry, 128 S.W.3d at 93. That case

held that a substantial step toward the commission of the underlying crime may be less than the

last act needed to commit the underlying crime but must be something more than mere



                                                13
preparation to commit the crime. Id. at 92. The Eastern District found that reasonable jurors

could not have determined beyond a reasonable doubt that the defendant committed a substantial

step toward first-degree robbery. Id. at 93. The court reasoned that, at most, the arguably

suspicious conduct of the defendant and the other man may have constituted acts in preparation

of robbery.    Id.   This court, however, has since overruled Ballenger and disagreed with

Presberry.    State v. Young, 139 S.W.3d 194, 198 (Mo. App. W.D. 2004).           In Young, we

explained that under the attempt statute, section 564.011, a substantial step toward the

commission of an offense does not require an overt act or an act beyond mere preparation. Id.

       The evidence in this case showed not only preparation by Hutson to commit robbery but

overt acts towards the commission of the offense. Hutson planned to rob the victim of marijuana

and acquired a handgun to use in committing the offense. He then arranged the meeting with the

victim, took the handgun to the meeting, and shot the victim four times. Such evidence showed

that Hutson had the purpose to commit the underlying offense of robbery and then took a

substantial step toward committing the offense.

       Hutson’s argument also fails because he relies on evidence and inferences contrary to the

verdict. He argues that his statement that he wanted to “hit a lick” could have meant a lot of

different things. But the evidence showed that one recognized meaning of the phrase is to

commit a robbery, and the jury was entitled to believe that Hutson’s use of that phrase conveyed

such intent. Hutson also argues that evidence was presented that it is common to bring a gun to a

drug deal. Again, the jury was entitled to draw the contrary inference that Hutson brought the

handgun to commit a robbery. Finally, Hutson relies on Beasley’s testimony that the victim was

the first to fire his gun in arguing that there was no evidence that he displayed a weapon before

being shot. The jury may believe all, some, or none of the testimony of a witness. Nash, 339



                                                  14
S.W.3d at 509. The jury was not required to believe Beasley’s testimony that the victim fired the

first shot.

        Sufficient evidence was presented for the jury to reasonably infer that Hutson used a

firearm in the course of an attempt to rob the victim. Hutson raises no independent grounds on

which his convictions for felony murder and armed criminal action should be reversed. The trial

court did not err in denying Hutson’s motion for acquittal or in entering judgments of conviction

for first-degree robbery, felony murder, and armed criminal action. The point is denied.

                                       Hammer Instruction

        In the final point in this appeal, Hutson contends that the trial court erred in giving the

hammer instruction to the jury ten hours into its deliberation. He asserts that the court coerced a

verdict with the instruction.

        The jury began its deliberations at 10:15 a.m. At 7:10 p.m., the foreman sent a note

indicating that one of the jurors would like to speak privately with the judge and asking whether

it was possible. By agreement of the parties, the court sent back a written answer stating, “No.”

        The foreman sent a note at 7:58 p.m. that read:

               We are stuck in trying to come to a unanimous decision. One juror
        believes she needs to think the situation through. Are we here until the decision is
        made tonight? Will we go home at some point tonight and reconvene tomorrow
        morning? Requesting guidance.

The trial court took up the note at 8:38 p.m. The prosecutor requested that the trial court read the

hammer instruction to the jury, and defense counsel objected. The trial court overruled the

objection and brought the jury in at 8:45 p.m. stating:

                Good evening, ladies and gentlemen. You will recall one of the
        instructions I read to you, it indicated that the trials are governed by rule and those
        rules are binding on the attorneys, they are binding on me, and they are binding
        on you. So I want you to know that everything that we do here is we’re all
        working under a plate, if you would. What I’m going to do is I’m going to read

                                                  15
       you an instruction. After I read you that instruction, you are to follow the
       Marshal’s instructions.

               This will be Instruction No. 18 in our ensemble. You should make every
       reasonable effort to reach a verdict, as it is desired that there be a verdict in every
       case. Each of you should respect the opinions of your fellow jurors as you would
       have them respect yours, and in a spirit of tolerance and understanding endeavor
       to bring the deliberations of the whole jury to an agreement upon a verdict. Do
       not be afraid to change your opinion if the discussion persuades you that you
       should. But a juror should not agree to a verdict that violates the instructions of
       the Court, nor should a juror agree to a verdict of guilty unless he is convinced of
       the defendant’s guilt beyond a reasonable doubt.

               The Marshal is going to take you back to your jury room.

The jury returned to open court at 9:00 p.m. and announced its verdict. At the defense’s request,

the jury was polled, and all jurors expressed their agreement with the verdict.

       The length of time that a jury is allowed to deliberate and the decision whether to give the

hammer instruction are matters within the trial court’s discretion. State v. Williams, 409 S.W.3d

460, 466 (Mo. App. W.D. 2013). “To demonstrate an abuse of discretion, the appellant must

show from the record that the jury’s verdict was coerced.” Id. at 467.

       The hammer instruction itself is not coercive in that it seeks open discussion, tolerance,

and the desirability of a unanimous verdict and admonishes the jurors against basing a verdict on

evidence they do not believe is true. State v. Johnson, 948 S.W.2d 161, 164 (Mo. App. E.D.

1997). “The verdict is only considered coerced when under the totality of the circumstances it

appears that the trial court was virtually directing that a verdict be reached and by implication

indicated that it would hold the jury until a verdict was reached.” Id. (internal quotes and

citation omitted). A reviewing court considers several factors in determining whether a hammer

instruction coerced the jury’s verdict. Williams, 409 S.W.3d at 467. They include: (1) the

amount of time the jury deliberates before the instruction is given; (2) the amount of time that

elapses between the reading of the instruction and the verdict; (3) whether the trial court knows

                                                 16
numerically how the jury is split and the position of the majority; and (4) whether the giving of

the instruction conforms with the Notes on Use. Id.

       Hutson argues that by not answering the jury’s question about if and when it would go

home and instead reading the hammer instruction, the trial court led the jury to believe it would

not be released until it came to a unanimous verdict and, thereby, coerced the verdict. In making

this argument, he relies on State v. McNail, 767 S.W.2d 84 (Mo. App. E.D. 1989). In McNail,

the defendant was charged with two counts of rape of his minor daughter. Id. at 84. The jury

began deliberations at 1:05 p.m. on a Saturday that was the start of a three-day holiday period.

Id. at 86. The jury sent a note at approximately 5:30 p.m. indicating a ten to two split in favor of

guilt. Id. The court responded over the defendant’s objection that the jury should continue

deliberating. Id. The jury sent a second note at 7:45 p.m. stating that the two holdout jurors

would not compromise their positions and asking how long the jury must deliberate before being

declared a hung jury. Id. The court again advised the jury over the defendant’s objection to

continue deliberating. Id. At 8:07 p.m., the trial court read the hammer instruction over the

defendant’s objection. Id. Shortly after 9:00 p.m., the court instructed a deputy sheriff to obtain

from the jurors contact numbers of relatives or friends who could bring a change of clothes and

toiletries for an overnight stay at a hotel. Id. The jury returned a verdict ten minutes later

acquitting the defendant of one count, convicting on the other, and imposing the minimum

punishment of five years imprisonment. Id.

       The Eastern District found coercion under the totality of the circumstances. Id. It

reasoned, “It is difficult to conceive that under these circumstances the verdict was other than a

compromise reached because the trial court had virtually directed that a verdict be reached and

by implication indicated it would hold the jury until a verdict was reached.” Id. at 87.



                                                17
       Unlike in McNail, the record in this case fails to indicate coercion. The jury deliberated

for ten hours and thirty minutes before the court gave the hammer instruction and another fifteen

minutes after the instruction before reaching a verdict. Several cases have found that shorter

deliberation times did not indicate coercion. See, e.g., State v. Scott, 348 S.W.3d 788, 798-99

(Mo. App. S.D. 2011)(deliberation for four hours and fifty minutes before instruction and thirty-

nine minutes after), abrogated on other grounds by State v. Sisco, 458 S.W.3d 304 (Mo. banc

2015); State v. Carriker, 342 S.W.3d 425, 427 (Mo. App. E.D. 2011)(deliberation for three hours

before instruction and ten minutes after); State v. Dodd, 10 S.W.3d 546, 553 (Mo. App. W.D.

1999)(deliberation for two hours and forty-seven minutes before instruction and thirty minutes

after); State v. Jackson, 896 S.W.2d 77, 80 (Mo. App. W.D. 1995)(deliberation for two hours and

thirty minutes before instruction and thirty-three minutes after); State v. Kinder, 858 S.W.2d 838,

839 (Mo. App. S.D. 1993)(deliberation for two hours and nineteen minutes before instruction

and ten minutes after).

       Likewise, although the trial court was informed that the jury was having trouble arriving

at a unanimous verdict and that one juror believed she needed more time to think about the case,

that information did not necessarily reflect an eleven to one split in the jury or indicate the

position of the majority or any one juror.

       Finally, the trial court complied with the Notes on Use in giving of the hammer

instruction. It allowed counsel for both sides to make objections before giving the instruction; it

numbered, read, and submitted the instruction to the jury; and the court noted on the record the

time that the jury first retired to deliberate, the time it gave the hammer instruction, and the time

the jury returned a verdict.




                                                 18
       The trial court did not make any other statements to the jury other than reminding it of its

previous instruction that all participants in the jury trial, including the jury, must follow the

established rules. The trial court did not tell the jury that it must reach a verdict in the case and

did not imply that it would hold the jury until a verdict was reached. The hammer instruction

was clear that a juror was to only agree to a guilty verdict if she was convinced of the

defendant’s guilt beyond a reasonable doubt. The use of the hammer instruction did not coerce

the jury’s verdict, and the trial court did not abuse its discretion in giving it. The point is denied.

       The judgment of convictions is affirmed.



                                               __________________________________________
                                               VICTOR C. HOWARD, JUDGE

All concur.




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