In the Missouri Court of Appeals
Western District
STATE OF MISSOURI, )
Respondent, )
v. ) WD78011
)
ERIA DOSS, )
Appellant. ) FILED: November 1, 2016
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY
THE HONORABLE DAVID M. BYRN, JUDGE
BEFORE DIVISION ONE: LISA WHITE HARDWICK, PRESIDING JUDGE,
ALOK AHUJA, CHIEF JUDGE AND CYNTHIA L. MARTIN, JUDGE
Eria Doss appeals from the circuit court's denial of his motion for judgment
of acquittal for second-degree felony murder and its corresponding count of armed
criminal action while his case was on remand for a new penalty phase. Because
Doss's request was beyond the scope of our mandate, we affirm the denial of his
motion and the entry of judgment on his convictions.
FACTUAL AND PROCEDURAL HISTORY
In April 2009, Doss and his co-defendant Michael Gunn shot and killed
Justin Budreau and Andrew Eli. Doss was subsequently convicted by a jury of two
counts of second-degree felony murder, two counts of first-degree robbery, and
four counts of armed criminal action, for which the circuit court sentenced him to
an aggregate total sentence of two consecutive life terms.
On direct appeal, this court found the evidence was insufficient to support
Doss's convictions for first-degree robbery relating to Budreau and its
corresponding armed criminal action count. State v. Doss, 394 S.W.3d 486, 494
(Mo. App. 2013). We reversed those convictions. This court also found prejudicial
error in the admission of Doss's juvenile records during the penalty phase of the
trial. Id. at 497. Therefore, we vacated Doss's sentences on his remaining
convictions and remanded the case to the circuit court for a new penalty phase.
Id. at 497-98.
On remand, Doss filed a motion for judgment of acquittal on the second-
degree felony murder count relating to Budreau and its corresponding armed
criminal action count. Doss argued that, because this court vacated his conviction
for first-degree robbery relating to Budreau based on insufficient evidence, the
felony murder and armed criminal action convictions based on the first-degree
robbery also had to be set aside. Doss's counsel did not raise this claim on direct
appeal. Nevertheless, Doss argued that the circuit court had the authority to grant
his motion for judgment of acquittal based on Supreme Court Rules 30.29, 29.11,
and 29.12.
The circuit court found the rules cited by Doss were inapplicable, noting that
a motion for judgment of acquittal could only be filed pursuant to Rule 72 or Rule
27.07. The court observed that Doss's motion would have been untimely under
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Rule 72, which applies only to civil cases. The court noted that Doss's motion was
also untimely under Rule 27.07(c), which provides that a motion for judgment of
acquittal "must be filed within fifteen days after the return of the verdict or the jury
is discharged." Ultimately, the court stated that it had a "specific ruling and a
specific mandate from the Court of Appeals," and that it would be overstepping its
authority if it were to sustain Doss's motion for judgment of acquittal. Therefore,
the court denied Doss's motion and proceeded with the new penalty phase and
resentencing. Doss was sentenced to consecutive sentences of 30 years in prison
for both murder counts, 10 years in prison the robbery count, and three years in
prison for each of the three armed criminal action counts. Doss appeals.
ANALYSIS
In his sole point on appeal, Doss contends the circuit court erred in denying
his motion for judgment of acquittal for the second-degree felony murder count
relating to Budreau and its corresponding armed criminal action count. He argues
that the circuit court had the authority to grant the motion for judgment of acquittal
under Rules 29.07(c) and 29.12(b). We disagree.
The scope of the circuit court's authority on remand was defined by our
mandate. Developers Sur. & Indem. Co. v. Woods of Somerset, LLC, 455 S.W.3d
487, 492 (Mo. App. 2015). The circuit court was required to "render judgment in
accord with our mandate and opinion." Gerken v. Sherman, 351 S.W.3d 1, 6 (Mo.
App. 2011). There are two types of remands: "'(1) a general remand, which does
not provide a specific direction and leaves all issues open to consideration in the
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new trial; and (2) a remand with directions, which requires the [circuit] court to
enter a judgment in conformity with the mandate.'" Id. (citation omitted). Thus,
while "'[a] general remand leaves all issues not conclusively decided open for
consideration at the new trial,'" a mandate with express instructions directing the
circuit court to take a specific action or actions leaves the circuit court with "no
authority to deviate from those instructions." Developers Sur. & Indem. Co., 455
S.W.3d at 492 (citation omitted). "Any act by the [circuit] court that diverges
from those instructions is void." Id.
Here, our mandate remanded the case to the circuit court for proceedings
consistent with our opinion. Our opinion provided that, due to the erroneous
admission of evidence at the penalty phase, Doss's sentences were vacated and
the cause was remanded for a new penalty phase on his convictions of two counts
of second-degree felony murder, one count of first-degree robbery, and three
counts of armed criminal action. Doss, 394 S.W.3d at 498. This was an express
instruction to the circuit court to take the specific action of conducting a new
penalty phase on Doss's remaining convictions. Under our mandate, the circuit
court had no authority to reconsider, let alone set aside, any of those convictions.
Such actions would have been beyond the scope of our mandate and, therefore,
void.1 Developers Sur. & Indem. Co., 455 S.W.3d at 492. The circuit court did
1
Moreover, we note that the rules Doss cites, Rules 29.07(c) and 29.12(b), did not provide the
circuit court with the authority to grant his motion for judgment of acquittal. Rule 29.07(c) states
that "[a] judgment of conviction shall set forth the plea, the verdict or findings, and the adjudication
and sentence. If the defendant is found not guilty or for any other reason is entitled to be
discharged, judgment shall be entered accordingly." This rule merely sets forth what information is
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not err in denying Doss's motion for judgment of acquittal. Doss's point on appeal
is denied.2
CONCLUSION
The judgment is affirmed.
____________________________________
Lisa White Hardwick, Judge
All Concur.
required to be included in a final judgment in a criminal case. See, e.g., State v. Paul, 401 S.W.3d
591-92 (Mo. App. 2013). It does not allow the circuit court to enter a new judgment at any time
notwithstanding other procedural rules. Likewise, Rule 29.12(b), the plain error rule, did not give
the circuit court such authority, as the rule "does not provide an independent basis under which a
person convicted of a crime can subsequently challenge his conviction or sentence." State v.
Lawrence, 477 S.W.3d 170, 170 (Mo. App. 2015).
2
Doss also argues that we, independently, should address the sufficiency of the evidence to
support his second-degree felony murder conviction relating to Budreau and its corresponding armed
criminal action conviction. In support of this argument, he relies on State ex rel. Verweire v. Moore,
a case in which a defendant successfully raised a sufficiency of the evidence claim in a habeas
corpus action. 211 S.W.3d 89, 91-92 (Mo. banc 2006) (abrogated on other grounds by State v.
Lammers, 479 S.W.3d 624, 636 (Mo. banc 2016)). This is not a habeas corpus action, however.
Instead, it is simply an appeal from the denial of an untimely motion for judgment of acquittal that
fell outside the scope of our limited remand.
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