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Date: 03-13-2021
Case Style:
State of Missouri vs. Richard McNabb
Case Number: WD83494
Judge: Gary D. Witt
Court: MISSOURI COURT OF APPEALS
WESTERN DISTRICT
Plaintiff's Attorney: Michel A. Trapasso
Defendant's Attorney:
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Description:
Saint Louis, MO - Criminal defense attorney represented Richard McNabb with a appealinug 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.
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 3
"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. 4
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 5
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
2 Paragraph "Second" of the verdict director submitted to the jury for the offense of tampering with a
judicial officer required the jury to find that McNabb committed three separate acts; it asked the jury to find that he:
"[1] threatened to kill Richard Shields, [2] secured a rifle, and [3] transported the rifle to a location near Richard
Shields'[s] home." The second and third acts do not appear necessary to a determination of whether McNabb
"threaten[ed] . . . [a] judicial officer" within the meaning of section 575.095.1(1). Instead, McNabb's acts of
securing and transporting the rifle arguably implicate section 575.095.1(4), which proscribes "engag[ing] in conduct
reasonably calculated to harass or alarm such judicial officer . . ., including stalking pursuant to section 565.225 or
565.227." The verdict directing instruction on this charge did not, however, ask the jury to find that McNabb's
actions were "reasonably calculated to harass or alarm" Shields, which is an essential element for an offense under
subsection (4). 6
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
3 The defendant in Jindra was not charged under section 575.095.1(1) but was instead convicted of
violating section 575.095.1(4). 7
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 so with the purpose to harass,
intimidate or influence a judicial officer in a judicial proceeding.
State v. McGirk, 999 S.W.2d 298, 302 (Mo. App. W.D. 1999).
In the present case, McNabb never threatened Shields directly. He communicated
his intent to harm Shields and then himself to his sister, who lived in Pennsylvania, but
subsequently also to Step-father, with whom he lived. McNabb notably called Stepfather, with whom he had just recently spoken at home, to tell him that he was going to
kill Shields. He specifically informed Step-father that he had taken his rifle and that he
was going to Google Shields's home address, even though there is no evidence that he
actually did so. The evidence was that while McNabb was on the phone with Step-father,
Meladie was on the phone in the same room relaying the information to authorities on the
911 call. A jury could reasonably have found that McNabb intended for Step-father to 8
relay the threat to police, who would reasonably have notified Shields, with McNabb
having the purpose that Shields would feel intimidated or harassed. While the jury could
also have found that McNabb did not intend that either his sister or Step-father would
relay his threats, this court
accepts as true all of the evidence favorable to the state, including all
favorable inferences drawn from the evidence and disregards all evidence
and inferences to the contrary. . . . In reviewing a challenge to the
sufficiency of the evidence, appellate review is limited to a determination
of whether there is sufficient evidence from which a reasonable juror might
have found the defendant guilty beyond a reasonable doubt.
State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993) (emphasis added). While the initial
call to McNabb's sister in Pennsylvania, may not have been sufficient for a factfinder to
determine that McNabb's intent was to have his threats communicated to law
enforcement and subsequently to Shields, his repeated calls to family members stating his
threats against Shields could be interpreted, by a fact finder, to have no other purpose
than to ensure the threats were delivered to the victim. The evidence did establish that
the threats were in fact communicated to Shields and the prosecutor and his family were
evacuating their home due to concerns for their safety in response to the threats. We find
that a reasonable juror could have concluded that McNabb's purpose in making the
repeated threats against Shields was to cause the threats to be ultimately communicated to
Shields and for him to be intimidated, harassed, or influenced.
Outcome: For all of the above-stated reasons, we affirm the judgment of the trial court.
Plaintiff's Experts:
Defendant's Experts:
Comments: