               In the Missouri Court of Appeals
                                  Western District

STATE OF MISSOURI,                        )
                             Respondent, )
v.                                        )            WD75699
                                          )            FILED:
TODD FONVILLE,                            )
                               Appellant. )

     APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY
             THE HONORABLE WESLEY B. POWELL, JUDGE

      BEFORE DIVISION FOUR: JAMES E. WELSH, CHIEF JUDGE PRESIDING,
            VICTOR C. HOWARD, LISA WHITE HARDWICK, JUDGES
      Todd Fonville appeals from his convictions for first-degree murder, second-

degree murder, two counts of armed criminal action, leaving the scene of a motor

vehicle accident, and knowingly burning. He contends the circuit court erred in giving

the jury a non-approved instruction on partial verdicts instead of the hammer instruction

after the jury informed the court that it had reached a verdict on some counts but was

deadlocked on others. Fonville argues that the instruction adversely affected the jury

and coerced it to reach a verdict on all counts. For reasons explained herein, we affirm.




                          FACTUAL AND PROCEDURAL HISTORY
        The sufficiency of the evidence to support Fonville's convictions is not at issue.

On April 11, 2011, Fonville, his girlfriend, Anna Marie Becchina, and her friend, Miguel

Apodaca, were at Apodaca's house smoking methamphetamine. At some point,

Fonville and Apodaca began talking about robbing Jose Morales, one of Apodaca's

associates who occasionally sold him drugs. They decided that they would ask Morales

to come over and sell them two ounces of methamphetamine. While Morales was

there, Fonville would rob him and appear to rob Apodaca before fleeing. Apodaca

called Morales and asked him to bring over two ounces of methamphetamine. Before

Morales arrived, Fonville put on a pair of gloves, and Apodaca gave him a sawed-off

shotgun, which Fonville loaded, and some extra shells.

        When Morales arrived, his girlfriend, Debeney Kreiling, was in the car with him.

Kreiling stayed in the car while Morales went into the house and downstairs to the

basement with Apodaca. According to Apodaca, after he and Morales went into the

basement, Fonville came out of a small bedroom in the basement and shot Morales in

the face, blinding him. As Morales staggered and fell to his knees, Fonville walked over

to him, reloaded the shotgun, and shot him in the side of the head, killing him. Apodaca

went through Morales's pockets, recovering a small baggie of methamphetamine and

$600.

        Either Apodaca or Fonville then yelled to Becchina, who was upstairs, to go get

Kreiling. Becchina summoned Kreiling. Becchina told Kreiling that Morales was in the

basement. When Kreiling got to the basement, she saw Morales's body and started to

scream. Fonville shot Kreiling in the chest. He then hit her in the head several times




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with the shotgun and stabbed her in the jaw and chest, killing her. After he killed

Kreiling, Fonville went upstairs and told Becchina not to go downstairs.

          Fonville, Apodaca, and Becchina wrapped the bodies of Morales and Kreiling in

blankets and loaded them into Morales's car. The group took Kreiling's purse, which

she had set down in Apodaca's house, and got into Morales's car. Fonville drove as

they looked for a place to dispose of the bodies. As Fonville was driving, a small child

walked out from behind a parked car. Fonville hit the child. Becchina yelled at Fonville

to stop the car, but he said that he could not stop because there were two dead bodies

in the car.1

          The group decided to go someplace to burn the car. Fonville drove to Cliff Drive

and pulled off the road. Fonville and Becchina tried to take the car stereo out of

Morales's car, but they could only remove the face plate. They grabbed other items

from the car, including a computer that belonged to Kreiling, a rosary, an iPod-type

device, and Kreiling's purse. Apodaca and Becchina got out and started running away

from the car, while Fonville poured gasoline over the victims' bodies and lit the car on

fire. An eyewitness saw all of three of them as they ran from the burning car.

          Fonville, Becchina, and Apodaca ran to a nearby elementary school, where

Fonville disposed of several live shotgun shells that Apodaca had given him. Fonville

called a friend to get a ride for him and Becchina, while Apodaca got a ride with one of

his friends. Fonville and Becchina went to her mother's residence, where they called

one of their friends, LeEric McClenton, to come over. Apodaca went to his house to try

to clean the blood and to destroy other evidence.



1
    The child suffered only minor abrasions.

                                               3
      Back at the fire scene, the police discovered the burned bodies of Morales and

Kreiling in Morales's car sometime after 6:00 p.m. Around 9:30 p.m., Apodaca's mother

came home to find Apodaca and a friend of his outside the house. They asked to

borrow her car and left. When she went inside the house, she smelled a strong odor of

bleach and saw bleach on the basement steps. As she started to sweep the basement,

she noticed that the broom was "all filled up" with blood. She called the police. The

police found blood evidence inside and outside of the house.

      In the early morning hours of April 12, 2011, Apodaca went to Becchina's

mother's residence. Fonville, Becchina, and McClenton were still there. McClenton

heard Becchina talk about a "kid getting hit," but no one talked about the robbery or

murders. Sometime after 6:00 a.m., the police arrived and arrested Apodaca for

homicide. Becchina was arrested on an unrelated warrant. Fonville was not arrested at

that time. Both Apodaca and Becchina eventually made statements to the police about

the murders and identified Fonville as having been involved.

      Meanwhile, Fonville spent the day with McClenton at McClenton's brother's

residence. Fonville had Kreiling's laptop with him. He gave McClenton the iPod-type

device that he had taken from Morales's car. Fonville told McClenton, "I fucked up. I

shouldn't have shot them." The police eventually arrived and arrested Fonville. At the

residence, the police found Kreiling's laptop; a plastic bag containing a purse, some

cords, and jewelry; Morales's car stereo faceplate; the rosary taken from Morales's car;

and a pair of gloves in a trash can. One of the gloves had blood stains on it, and testing

showed that the stains were consistent with the DNA of Morales and Kreiling. Fonville's

DNA and Kreiling's DNA were consistent with a swab taken from inside the glove.



                                            4
       When the police interviewed Fonville, he initially told them that he was with his

boss from 9:00 a.m. to midnight on the day of the murders. After the police told him that

his boss denied being with him that day, Fonville admitted being at Apodaca's house but

claimed that Apodaca shot Morales and Kreiling. Fonville also admitted knowing that

Apodaca wanted to rob Morales; agreeing to be there to support Apodaca during the

robbery; going back downstairs with Apodaca after Becchina brought Kreiling in

following Morales's shooting; helping to put the victims' bodies in the car; driving the car

and hitting the child; discussing burning the car and selecting the spot to do so; and

disposing of the other shotgun shells near the school.

       The State charged Fonville with first-degree murder or, in the alternative, second-

degree felony murder for Morales's death; first-degree murder or, in the alternative,

second-degree felony murder for Kreiling's death; two counts of armed criminal action;

leaving the scene of a motor vehicle accident; and knowingly burning.

       A jury trial was held in late July 2012. The case was submitted to the jury for

deliberations at 12:35 p.m. on July 30, 2012. The jury deliberated until approximately

5:00 p.m. The jury did not reach a verdict that day and returned the next day at 9:00

a.m. to resume deliberations.

       Around 10:20 a.m. on July 31, 2012, the jury sent a note asking, "How do we

move on if one person is hung on instruction 21/22 when instruction 3 clearly states not

to single out?" Instruction 21 advised the jury that the presence of a person at or near

the scene of an offense was alone not sufficient to make him responsible for the

offense. Instruction 22 advised the jury that, when two or more persons are criminally

responsible for an offense that is divided into degrees, each person is guilty of that



                                             5
degree that is compatible with the state of mind with which he acted. Instruction 3 told

the jury not to single out certain instructions and disregard others. The parties agreed

to the court's response, which told the jury to be "guided by all the instructions as given

by the Court in their entirety."

       Around 11:00 a.m., the jury sent another note asking, "If we are [a] hung jury on

count 1 Instruction 5 can we still make a finding on Count 1 Instruction 6. OR another

way of putting it -- If we can't agree on Murder 1 can we still make a decision on murder

2?" Count 1 was the charge for Morales's death. Instruction 5 instructed on first-degree

murder for his death and Instruction 6 instructed on second-degree felony murder. The

jury was brought into the court room, where the foreperson advised the court that the

jury had reached unanimous verdicts on some counts. The jury was released for lunch

while an answer to their question about Instructions 5 and 6 was prepared. The court

sent a response, to which the parties agreed, stating: "The Court urges the jury to

reach unanimous verdicts on all counts in accordance with Instruction 25. However, if

you are unable to reach [a] unanimous verdict on Instruction 5, you may then consider

whether the defendant is guilty under Instruction 6." The jury resumed its deliberations.

       Around 2:30 p.m., the jury advised the court that it had reached a verdict. When

the court asked if a verdict had been reached on all counts, the foreperson said it had

not. The court then asked if the jury was "hopelessly deadlocked on certain counts, one

or more counts." The foreperson replied, "Yes." The jury returned to the jury room

while the court discussed the situation with the parties.

       The court informed the parties that the bailiff had said that, when he checked on

the jurors, "there were jurors that were visibly upset and crying. And one or more jurors



                                             6
had indicated that they're not coming back tomorrow." Because the jury indicated that it

had reached a unanimous verdict on some counts, the court wanted to see if a verdict

on those counts could be returned "to avoid a potential mistrial in the entire case." The

court proposed giving the jury a non-MAI instruction, Instruction 27, which was

patterned after an Eighth Circuit instruction regarding partial verdicts. The proposed

instruction read:

             Members of the jury, if you have reached unanimous agreement as
       to some of the counts, you may return a verdict as to those counts, and
       then continue deliberating on the others.

              If you do choose to return a verdict as to some of the counts now,
       that verdict will be final. You will not be able to change your minds about it
       later on.

       The court explained that, if the jury came back with a verdict on some counts, the

court would then decide whether to declare a mistrial as to the remaining counts. In

response to the court's proposed instruction, Fonville's counsel stated, "I would still

prefer to have the hammer instruction given, although, I understand with what we've

heard, why the Court thinks that this would be appropriate. So I don't have an objection

to Instruction Number 27 as to form, however, I guess I do object to it in general." The

court sent the instruction to the jury at 2:40 p.m.

       At 3:45 p.m., the jury returned a verdict on all counts. The jury found Fonville

guilty of second-degree murder for Morales's death, first-degree murder for Kreiling's

death, both counts of armed criminal action, leaving the scene of a motor vehicle

accident, and knowingly burning. Pursuant to the jury's recommendation, the court

sentenced Fonville to concurrent terms of fifteen and eight years for the murder of

Morales and the associated armed criminal action count, to be served consecutively to



                                              7
concurrent terms of life without probation or parole and ten years for the murder of

Kreiling and the associated armed criminal action count; a consecutive term of four

years and a $400 fine for leaving the scene of a motor vehicle accident; and one year

time served for knowingly burning. Fonville appeals.

                                    STANDARD OF REVIEW

       Fonville asserts only instructional error in this appeal. The decision to submit an

instruction to the jury is a matter within the circuit court's discretion. State v. Davis, 318

S.W.3d 618, 630 (Mo. banc 2010). Therefore, our review is for an abuse of that

discretion. State v. Watson, 407 S.W.3d 180, 184 (Mo. App. 2013). Reversal based on

instructional error is warranted "where an instruction misled, misdirected, or confused

the jury, and the defendant was prejudiced." Id.

                                          ANALYSIS

       In his sole point on appeal, Fonville contends the circuit court erred in submitting

Instruction 27, a non-approved instruction on partial verdicts. He asserts that Instruction

27 adversely affected the jury by suggesting that jurors should compromise on the

counts on which they had reached a verdict in order to reach a verdict on the remaining

counts, and the instruction coerced the jury to reach a verdict.

       Fonville argues that, when the jury indicated that it was "hopelessly deadlocked"

on some counts, the court should have given MAI-CR3d 312.10, the approved hammer

instruction, instead of Instruction 27, a non-MAI instruction. Citing Rule 28.02(c), he

notes that, whenever there is an applicable approved instruction, it must be used

instead of a non-approved instruction.




                                              8
       Instruction 27 cannot be characterized as a hammer instruction, however, as it

did not serve the same purpose as a hammer instruction. MAI-CR3d 312.10, the

approved hammer instruction, advises the jury:

            You should make every reasonable effort to reach a verdict, as it is
       desirable 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 Notes on Use for MAI-CR3d 312.10 provide that "[t]his instruction may be given

when the Court deems it appropriate and when the length of deliberation or

communication from the jury causes the Court to believe that the jury may be

deadlocked." The plain language of MAI-CR3d 312.10 indicates that the purpose of the

hammer instruction is to encourage jurors to reach a verdict and to communicate to

jurors the desirability of reaching a verdict in every case. See State v. Carriker, 342

S.W.3d 425, 426 (Mo. App. 2011).

       Instruction 27 did not contain language encouraging the jury to reach a verdict on

any counts on which it was deadlocked. Instead, it simply notified the jury that, if it had

reached unanimous agreement on any of the counts, which the jury indicated that it

had, then it could return a verdict on those counts if it wanted to do so and then

continue deliberating on the other counts. The instruction further advised the jury that, if

it chose to return a verdict on some of the counts, that verdict would be final as to those

counts. Contrary to Fonville's claim, nothing in Instruction 27 required, or even

encouraged, the jury to reach a verdict on all counts. Likewise, we fail to see how the

                                             9
court's merely advising the jury of the finality of a returned verdict on any counts in any

way suggested to the jury that it should enter a compromise verdict to break the

impasse on the deadlocked counts.

       That Instruction 27 did not require or encourage a verdict distinguishes this case

from those cases relied upon by Fonville in which non-approved instructions were

deemed erroneous because they encouraged the jury to return a verdict and, therefore,

should not have been used in lieu of MAI-CR3d 312.10. See, e.g., State v. Steward,

734 S.W.2d 821, 824 (Mo. banc 1987) ("Is it your opinion that any further balloting will

arrive at a unanimous verdict on the three counts presented to you because you have to

give me a verdict in order to complete entire [sic] work of the jury. You have to give me

a verdict. Guilty or not guilty on each of the three counts placed against you."

(Emphasis in original.)); State v. Hayes, 563 S.W.2d 11, 12 (Mo. banc 1978) ("I

admonish this jury to bring back one of these verdicts . . . .").

       Because Instruction 27 was not an encouragement to return a verdict on

deadlocked counts but served an entirely different purpose of explaining that the jury

could return a partial verdict on counts on which it had already unanimously agreed and

continue deliberating on the others, it was not a non-approved hammer instruction used

in lieu of MAI-CR3d 312.10. See, e.g., State v. Bracken, 333 S.W.3d 48, 56-57 (Mo.

App. 2011) (statements instructing the jury to continue deliberations were not the

"functional equivalent" of the hammer instruction); State v. Franklin, 751 S.W.2d 128,

130 (Mo. App. 1988) (statements instructing the jury to continue deliberations were

designed to determine if the jury could reach a verdict and were not used as a substitute

for the hammer instruction).



                                             10
       Merely instructing the jury to continue deliberations is not coercive where, as

here, the court neither states nor implies: (1) that the jury will not be released until it

returns a verdict; (2) that it must reach a verdict by a certain time; or (3) that it was

required to reach a verdict. State v. Manley, 414 S.W.3d 561, 570 (Mo. App. 2013).

Additionally, the circumstances surrounding the deliberations and verdict do not indicate

that the verdict was coerced. The court did not know which counts or how many counts

were deadlocked, let alone the split or the direction of the split. See State v. Campbell,

147 S.W.3d 195, 203-04 (Mo. App. 2004). After the court gave Instruction 27, the jury

deliberated for another one hour and five minutes before returning its verdict on all

counts. "'Missouri courts have found that a time period as short as approximately one-

half hour was not a sign that the verdict was coerced.'" Id. at 203. Instruction 27 was

not coercive and was not used in place of the applicable approved hammer instruction

in violation of Rule 28.02(c).

       There is no applicable approved instruction for advising the jury that it can return

a partial verdict when it has reached a verdict on some counts but not others. Where no

pattern instruction exists, the court may give a non-MAI instruction as long as it is

"simple, brief, impartial, and free from argument" and does not "submit detailed

evidentiary facts." Rule 28.02(d). See also Morgan v. State, 272 S.W.3d 909, 911 (Mo.

App. 2009). Instruction 27 met these requirements and did not misstate Missouri law.

There is no prohibition against a jury returning a partial verdict. Section 546.390, RSMo

2000, requires that any verdict upon which the jury agrees be rendered in open court

and any verdict upon which the jury does not agree be retried. Thus, Section 546.390

appears to support what the court was trying to do here -- ensure that any counts upon



                                              11
which a unanimous verdict had been reached be rendered in open court. See also

State v. Anderson, 698 S.W.2d 849, 853-54 (Mo. banc 1985) (Blackmar, J., concurring)

(indicating that the court should be "mindful" of its "responsibility" to determine whether

"there were any prospects for a complete or partial verdict" from a deadlocked jury).

       Because Instruction 27 was not the subject of an applicable approved instruction

and was simple, brief, free from argument, consistent with the law, and not coercive, the

court did not abuse its discretion in giving it to the jury. Fonville's point is denied.

                                         CONCLUSION

       We affirm the circuit court's judgment.


                                                   ________________________________
                                                ____
                                                   LISA W HITE HARDWICK, JUDGE


ALL CONCUR.




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