State v. McNabb

621 S.W.3d 658

STATE of Missouri, Respondent,

v.Richard MCNABB, Appellant.

WD 83494

Missouri Court of Appeals, Western District.

OPINION FILED: March 2, 2021

Motion for Rehearing and/or Transfer Denied March 30, 2021

Application for Transfer Denied June 1, 2021

Michel A. Trapasso, Jefferson City, MO, for respondent.

Christian Lehmberg, Columbia, MO, for appellant.

Before Division Three: Edward R. Ardini, Jr., Presiding Judge, Alok Ahuja, Judge and Gary D. Witt, Judge

Gary D. Witt, Judge

Richard McNabb ("McNabb") appeals the judgment of the Circuit Court of Vernon County, Missouri ("trial court") finding him guilty, after a jury trial, of one count of tampering with a judicial officer pursuant to section 575.095.¹ On appeal, McNabb challenges the sufficiency of the evidence to support his conviction. We affirm the judgment of the trial court.

Factual and Procedural Background

We review the facts in the light most favorable to the jury's verdict. State v. Hunt , 451 S.W.3d 251, 257 (Mo. banc 2014). On January 3, 2017, McNabb was living with his mother and his step-father ("Step-father"). McNabb's half-sister Meladie ("Meladie"), his girlfriend, and his two children also lived in the home. McNabb had a third child, who previously passed away. The prosecuting attorney, Richard Shields ("Shields"), brought charges against McNabb in relation to his third child's death, which were still pending during the relevant timeframe. On the evening of January 3, 2017, when Step-father returned home for the evening, McNabb was upset about Shields and was complaining about him to Step-father. McNabb stormed out of the house.

After McNabb left the house, Meladie came out of her room and asked Step-father where McNabb was. McNabb had told her earlier in the day that he loved her, which struck her as odd at the time, because the two were not close. Step-father did not know where McNabb had gone.

Shortly thereafter, Meladie received a call from her sister Nicole, who lived in Pennsylvania. McNabb had called Nicole and told her that he was going to kill Shields and then kill himself. This worried Nicole, and she asked Meladie to call 911 from her phone because when she tried to dial it from Pennsylvania, it went to the wrong law enforcement agency. Meladie was worried that McNabb was in trouble and might hurt himself, so she called 911.

While Meladie was on the phone with 911, McNabb called Step-father. McNabb told Step-father that he was going to kill Shields, and Step-father told McNabb that "would be the dumbest thing he could ever do." McNabb told Step-father that he had taken Step-father's rifle from the home, and Step-father confirmed that the gun was missing. Step-father noticed, however, that McNabb had failed to take the ammunition or the ammunition magazine for the rifle. McNabb told Step-father that he was going to Google Shields's address to find out where he lived. As Step-father spoke with McNabb, Meladie relayed the information to the 911 operator. The 911 operator told Meladie to call back if she heard anything else from McNabb. Police were dispatched to Shields's home and to McNabb's home.

McNabb's girlfriend was in the house and heard the 911 call and called McNabb to inform him that Meladie had called the police. McNabb returned home shortly thereafter and was angry. It was less than an hour from the time McNabb first left the house until he returned. When he returned, Meladie went into her room, closed the door, and hid in the closet. McNabb and Step-father argued. McNabb threatened to kill Step-father and Meladie, and Step-father hit McNabb, who returned the blow. Meladie called 911 again and told them that McNabb had returned home and he and Step-father were in a fight. It was just over eleven minutes between the end of Meladie's first 911 call and the 911 call where she reported McNabb had returned home. The 911 operator asked whether McNabb still had the rifle, and Meladie answered that McNabb said he had left it on his ex-girlfriend's back porch. The ex-girlfriend lived near Shields, and the ex-girlfriend's mother had not known that McNabb had been to her house, but she found the rifle on the porch when police informed her where McNabb said he had left it. She turned the gun over to police when they arrived; the gun was unloaded.

McNabb saw and heard police arrive at his home, and walked out of the garage. When police asked to speak with him, he responded, "F--- you, you m----- f------," before going back into the house and locking the door. McNabb went into his bedroom and locked the door to that room and exited through a window. He ran to a neighbor's house. The neighbor called Meladie, and Meladie told police where to find McNabb. Police apprehended McNabb at the neighbor's house and placed him under arrest. While all of this was taking place, additional officers had responded to Shield's home and were in the process of having he and his family pack belongings to evacuate their home when they were notified that McNabb was in custody.

McNabb was charged with attempted murder and tampering with a judicial officer. The case was tried to a jury, and the jury found McNabb guilty of tampering with a judicial officer but was unable to reach a unanimous verdict on the charge of attempted murder. McNabb was sentenced to ten years in the Missouri Department of Corrections for tampering with a judicial officer. The State subsequently dismissed the charge of attempted murder. This appeal follows.

Standard of Review

When an appellant challenges the sufficiency of the evidence to support his conviction, we review the evidence in the light most favorable to the jury's verdict, giving the State the benefit of all reasonable inferences. State v. Thompson , 314 S.W.3d 407, 410 (Mo. App. W.D. 2010). We do not reweigh the evidence but determine only whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. Id. We "may not supply missing evidence or give the State the benefit of unreasonable, speculative, or forced inferences." State v. Hunt , 451 S.W.3d 251, 257 (Mo. banc 2014).

Analysis

McNabb's challenge to the sufficiency of the evidence to support his conviction is his only point on appeal. As relevant to this appeal, section 575.095.1(1)² declares that "[a] person commits the offense of tampering with a judicial officer if, with the purpose to harass, intimidate or influence a judicial officer in the performance of such officer's official duties, such person [t]hreatens or causes harm to such judicial officer...." The parties agree that Shields is a judicial officer as defined by the statute. However, McNabb argues that the evidence failed to establish that he threatened or harmed Shields with the purpose to harass, intimidate, or influence Shields. We disagree.

Because Shields was not harmed, the State had to show that McNabb threatened Shields with the purpose to harass, intimidate, or influence him. To show that McNabb acted "with the purpose" of harassing, intimidating or influencing Shields's actions, the State had to show that it was McNabb's "conscious object ... to cause" such harassment, intimidation or influence. § 562.016.2, RSMo. Showing that McNabb acted with such a purpose is equivalent to showing that he acted with "specific intent." Bryant v. State , 316 S.W.3d 503, 509 (Mo. App. E.D. 2010) (citing State v. Whalen , 49 S.W.3d 181, 186–87 (Mo. banc 2001) ). The fact that a defendant knows that his actions could or would cause a particular result "is not the requisite mental state of acting purposely." State v. Keeler , 856 S.W.2d 928, 931 (Mo. App. S.D. 1993). Instead, the State must show that the defendant desired to produce a particular outcome.

Because McNabb had no contact or communication with Shields regarding his plan to kill first Shields and then himself, the State's evidence would need to support a finding that McNabb intended to harass or intimidate Shields by telling his own family that he was going to kill Shields and then himself. See State v. Jindra , 504 S.W.3d 187, 190 (Mo. App. W.D. 2016).

A person can violate section 575.095.1(1) by relaying threats against a judicial officer to a third party. See Jindra , 504 S.W.3d at 190, State v. Hamilton , 130 S.W.3d 718, 719 (Mo. App. S.D. 2004). In Hamilton , threats intended to intimidate a judicial officer (a probation officer) were made in the presence of the judicial officer and later outside her presence to the judicial officer's supervisor and to law enforcement personnel, for whom it "would, arguably, have been [a] dereliction of duty" not to relay the information to the judicial officer so that she could take steps to protect herself. Hamilton , 130 S.W.3d at 720. In Jindra , the defendant violated the statute by relaying threats against a judge through a court clerk and through people who worked with the judge's husband.³ Jindra , 504 S.W.3d at 191. Jindra understood and intended that the threats would be communicated to the judge, and they were intended to intimidate or harass her. The Jindra opinion compared section 575.095 to the federal bank robbery statute, 18 U.S.C. § 2113(a), which prohibits taking "by intimidation." Id. The opinion noted that "by intimidation" had been interpreted as conduct "reasonably calculated to produce fear." Id. In both Hamilton and Jindra it was a reasonable inference from the evidence that the defendant was aware the threats made would be relayed to the judicial officer and it was the defendant's intent that the threats be relayed to accomplish the goal of intimidation or harassment of the judicial officer.

[The statute] does not restrict certain "speech" because of its message or content. Instead, it enjoins certain speech because of the impact it is intended to have on the person to whom it is directed. Under the statute, a defendant must engage in conduct reasonably calculated to harass or alarm a judicial officer, and the defendant must do

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