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
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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
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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
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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.
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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.
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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
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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).
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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.
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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
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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
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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.
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