STATE OF MISSOURI, Plaintiff-Respondent v. JOSHUA J. BROWN

Missouri Court of Appeals

Southern District

In Division

STATE OF MISSOURI, )

)

Plaintiff-Respondent, )

)

v. ) No. SD37348

) Filed: December 12, 2023

JOSHUA J. BROWN, )

)

Defendant-Appellant. )

APPEAL FROM THE CIRCUIT COURT OF BARTON COUNTY

Honorable David R. Munton, Circuit Judge

AFFIRMED

Joshua Brown (Defendant) appeals from his conviction for one count of second-degree

felony murder. See § 565.021. 1 Defendant raises four points on appeal. The first three contend

the trial court should have dismissed the charge against him based on double jeopardy, and the

fourth point contends the evidence was insufficient to support his conviction. Because his

contentions are without merit, we affirm the judgment of the trial court.

Factual and Procedural Background

On the night of November 2, 2014, Deputy Matthew Chism (Deputy Chism) of the

Cedar County Sheriff’s Office attempted to stop a car he observed with a headlight out. Deputy

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All statutory references are to RSMo Cum. Supp. (2013).

Chism engaged in a pursuit with the vehicle when it failed to pull over. During the pursuit, an

object was thrown from the vehicle, which was later found to be “an eyeglass case” containing

methamphetamine. Eventually, the vehicle slowed down enough for a passenger, carrying a

backpack, to exit the vehicle and flee on foot.

As the vehicle drove away, Deputy Chism stopped his own vehicle and exited to chase

the passenger, who was later identified as William Collins (Collins). A local resident observed

Collins running from Deputy Chism and saw the two men briefly fight in his front yard before

continuing to run. From inside his house, the resident heard a series of gunshots. A 911

dispatcher, who was waiting nearby in Deputy Chism’s vehicle, also heard the gunshots. There

were no witnesses who actually saw the shooting.

The resident went outside and discovered Collins and Deputy Chism both lying on the

ground with gunshot wounds. Officers who arrived at the scene of the shooting found two

handguns and Collins’ backpack, which contained several “burglar tools.” Deputy Chism and

Collins both received medical care. Collins died at the scene, and Deputy Chism was

pronounced dead after being transported to a hospital. 2

Police checked the license plate of the car that had fled from Deputy Chism and

identified Defendant as a person who may have been driving the car. Defendant was located

and gave three interviews to police the morning after the shooting. During the first interview,

he denied that he was driving the vehicle during the pursuit. According to Defendant, the car,

which belonged to his mother, had been stolen earlier in the evening. He stated that he walked

around town looking for the car, found it, and drove it back to his mother’s house. Defendant

claimed that he had not been with Collins at all that night.

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Shell casings were recovered at the scene, and bullets were removed later from each

body. At trial, the parties stipulated that Collins had been shot by Deputy Chism, and the deputy

had been shot by Collins.

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During the second interview, Defendant admitted that he had picked up Collins in his

mother’s car and that the two had smoked meth together. Collins showed Defendant a gun, and

Defendant knew Collins was not supposed to have the gun. 3 Defendant “freaked out” because

Collins had a gun with him. Defendant was driving when he saw police lights behind him.

Defendant said he wanted to pull over, but Collins told him not to do it. According to

Defendant, Collins told him “he had a warrant [and] a gun.” Eventually, Collins told Defendant

to slow down so Collins could jump out of the vehicle. Defendant did as Collins asked and

then drove the car home.

At the first trial, Defendant was charged with second-degree felony murder, attempted

distribution of a controlled substance, hindering prosecution of a felony, and tampering with

physical evidence in a felony prosecution. The State presented the felony-murder charge as the

killing of Deputy Chism predicated on the offense of hindering prosecution. Specifically, the

jury was instructed that the underlying felony was “Hindering Prosecution of William Collins

for Possession of a Firearm by a Convicted Felon[.]” The jury returned a verdict of guilty on

all four counts. 4

At the sentencing hearing, defense counsel argued that the evidence did not support

Defendant’s convictions for hindering prosecution and felony murder. The trial court agreed

and entered a judgment of acquittal notwithstanding the verdict on both charges. The State

appealed the trial court’s judgment, arguing that it made a submissible case on the charges of

hindering prosecution and felony murder. State v. Brown, 543 S.W.3d 647 (Mo. App. 2018)

3

At trial, the parties stipulated that Defendant and Collins each had felony convictions

prior to November 2, 2014.

4

Count 2 was amended from attempted distribution of a controlled substance to

possession of a controlled substance.

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(“Brown I”). This Court affirmed the trial court’s judgment, but our analysis was limited to

the hindering-prosecution issue. Id. at 648.

Following the State’s unsuccessful appeal, it brought an additional charge of felony

murder against Defendant. The second-amended information alleged that Defendant

committed the class A felony of second-degree murder, in that “Collins was shot and killed as

a result of the perpetration or immediate flight from perpetration of the class C felony of

unlawful possession of a firearm,” in violation of § 571.070, “committed by [D]efendant acting

alone and in concert with William Collins[.]”

Defendant submitted several motions to dismiss on grounds that included collateral

estoppel, double-jeopardy claim preclusion, and double-jeopardy protections established by

§ 556.041. These motions were denied, and the case proceeded to trial. The jury found

Defendant guilty of second-degree murder, and the trial court sentenced him to a term of fifteen

years’ imprisonment. This appeal followed.

Standard of Review

Defendant’s first three points raise double-jeopardy claims, which are subject to de novo

review. State v. Andrews, 643 S.W.3d 497, 499 (Mo. banc 2022).

Defendant’s fourth point challenges the sufficiency of the evidence to support his

conviction. Our review of this claim is “limited to whether the State has introduced adequate

evidence from which a reasonable finder of fact could have found each element of the crime

beyond a reasonable doubt.” State v. Lammers, 479 S.W.3d 624, 632 (Mo. banc 2016). An

appellate court must consider all evidence in the light most favorable to the verdict and grant

the State all reasonable inferences. Id. Any contrary evidence and inferences are disregarded.

Id.

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Discussion and Decision

Point 1

Defendant argues that collateral estoppel should have precluded the State from

prosecuting him for felony murder. According to Defendant, the trial court’s determination on

the issue of proximate cause in the first trial should have resolved the issue of proximate cause

in Defendant’s favor in the second trial.

The trial court in the first trial entered a judgment of acquittal on the charges of

hindering prosecution and felony murder. Regarding the felony-murder charge, the trial court

reasoned that “when [Collins] gets out of the car, I think that is an intervening break. And that’s

why it was no longer felony murder.”

The State appealed the judgment of acquittal and raised two points: (1) that there was

sufficient evidence to support the charge of hindering prosecution; and (2) that there was

sufficient evidence to support the charge of felony murder. In Brown I, we affirmed the trial

court’s judgment but only reached the State’s first point on appeal, concluding that the State

failed to make a submissible case on the charge of hindering prosecution. Brown I, 543 S.W.3d

at 648. Because we affirmed Defendant’s acquittal on the underlying felony, we did not address

the State’s argument regarding Defendant’s acquittal for felony murder. We explained: “[Point

II] asserts that Defendant committed felony murder ‘in that Deputy Chism’s death was the result

of Defendant’s hindering prosecution.’ Point I’s failure thus defeats this point as well. We

deny Point II and affirm the judgment.” Id. at 651.

Defendant cannot assert collateral estoppel based on the trial court’s findings in the first

trial regarding proximate cause for felony murder because that was not the basis for our decision

on appeal.

When an appellate Court affirms a judgment of a trial court on grounds different

from those of the trial court, the trial court’s decree and judgment is in effect

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modified and the judgment is res judicata only as to those matters included

within the judgment as modified. The trial court’s decision is not res judicata

as to the grounds not relied on by the appellate court.

Cheatham v. Walsh, 669 S.W.2d 587, 589 (Mo. App. 1984) (internal citations omitted).

Because in Brown I we only affirmed the trial court’s ruling that there was insufficient evidence

to support the charge of hindering prosecution, collateral estoppel applies only to that part of

the judgment from the first trial. All other findings by the trial court in the first trial, including

that the State did not sufficiently prove proximate cause to support the charge of felony murder,

are without preclusive effect. Therefore, collateral estoppel did not preclude the State from

prosecuting Defendant for felony murder in the present case.

Defendant relies heavily on Ashe v. Swenson, 397 U.S. 436 (1970), but that reliance is

misplaced. In Ashe, six men were engaged in a poker game in the basement of a home when:

[s]uddenly three or four masked men, armed with a shotgun and pistols, broke

into the basement and robbed each of the poker players of money and various

articles of personal property. The robbers – and it has never been clear whether

there were three or four of them – then fled in a car belonging to one of the

victims of the robbery. Shortly thereafter the stolen car was discovered in a

field, and later that morning three men were arrested by a state trooper while

they were walking on a highway not far from where the abandoned car had been

found. [Ashe] was arrested by another officer some distance away.

Id. at 437. Ashe was charged with robbing Donald Knight, who was one of the participants in

the poker game. At trial:

the State called Knight and three of his fellow poker players as prosecution

witnesses. Each of them described the circumstances of the holdup and itemized

his own individual losses. The proof that an armed robbery had occurred and

that personal property had been taken from Knight as well as from each of the

others was unassailable. The testimony of the four victims in this regard was

consistent both internally and with that of the others. But the State’s evidence

that [Ashe] had been one of the robbers was weak. Two of the witnesses thought

that there had been only three robbers altogether, and could not identify [Ashe]

as one of them. Another of the victims, who was [Ashe’s] uncle by marriage,

said that at the “patrol station” he had positively identified each of the other three

men accused of the holdup, but could say only that [Ashe’s] voice “sounded very

much like” that of one of the robbers. The fourth participant in the poker game

did identify [Ashe], but only by his “size and height, and his actions.”

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Id. at 438. The jury found Ashe not guilty due to insufficient evidence. Id. at 439.

Six weeks later, Ashe was tried again for robbing a different participant in the poker

game, Roberts. After the second trial, Ashe was convicted. His direct appeal asserting double

jeopardy was denied, and his later collateral attack on the judgment was unsuccessful. Ashe

then brought a habeas corpus petition, which ultimately made its way to the United States

Supreme Court. The Court held that Ashe was entitled to relief because the second prosecution

violated the Fifth Amendment’s protection against double jeopardy. Id. at 443-45. The Court

reasoned that: (1) collateral estoppel is an ingredient in the Fifth Amendment’s double-

jeopardy analysis; and (2) this simply means “that when an issue of ultimate fact has once been

determined by a valid and final judgment, that issue cannot again be litigated between the same

parties in any future lawsuit.” Id. at 443. Applying these principles, the Court reached the

following conclusion:

Straightforward application of the federal rule to the present case can lead to but

one conclusion. For the record is utterly devoid of any indication that the first

jury could rationally have found that an armed robbery had not occurred, or that

Knight had not been a victim of that robbery. The single rationally conceivable

issue in dispute before the jury was whether [Ashe] had been one of the robbers.

And the jury by its verdict found that he had not. The federal rule of law,

therefore, would make a second prosecution for the robbery of Roberts wholly

impermissible.

Id. at 445.

We have reviewed Ashe in depth to show why it is factually distinguishable. There, the

only basis in the record for Ashe’s first acquittal was an implicit finding that he was not one of

the robbers. It was that finding which collaterally estopped the State from further prosecution.

In Brown I, we affirmed the trial court’s entry of judgment notwithstanding the verdict because

the State failed to prove the predicate felony of hindering prosecution. We did not decide the

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proximate-cause issue because it was unnecessary to do so. Therefore, Ashe does not control

our decision on the issue. Point 1 is denied.

Point 2

Defendant claims that he was denied his rights under the Double Jeopardy Clause of the

Fifth Amendment to the U.S. Constitution. He argues that the trial court should have dismissed

the felony-murder charge against him because the underlying felony was an “included offense”

of an offense of which he was acquitted in his first trial.

The Fifth Amendment “protects defendants from successive prosecutions for the same

offense after acquittal or conviction[.]” State v. Hardin, 429 S.W.3d 417, 421 (Mo. banc 2014).

To determine whether a successive prosecution is prohibited by the Double Jeopardy Clause,

we apply the “same-element” test from Blockburger v. United States, 284 U.S. 299 (1932).

See State v. Burns, 877 S.W.2d 111, 112 (Mo. banc 1994). “[T]he Blockburger test asks

whether each offense contains an element not contained in the other; if not, the Double Jeopardy

Clause bars a successive prosecution.” Burns, 877 S.W.2d at 112. We identify the elements

of an offense from the statute that defines the offense. Hardin, 429 S.W.3d at 424.

Defendant argues that unlawful possession of a firearm, the underlying offense for his

felony-murder charge, has the same elements for the purposes of the Blockburger test as

hindering prosecution, an offense of which he was acquitted in his first trial. Hindering

prosecution is defined by § 575.030, which states:

1. A person commits the crime of hindering prosecution if for the purpose of

preventing the apprehension, prosecution, conviction or punishment of another

for conduct constituting a crime he:

(1) Harbors or conceals such person; or

(2) Warns such person of impending discovery or apprehension, except this

does not apply to a warning given in connection with an effort to bring another

into compliance with the law; or

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(3) Provides such person with money, transportation, weapon, disguise or other

means to aid him in avoiding discovery or apprehension; or

(4) Prevents or obstructs, by means of force, deception or intimidation, anyone

from performing an act that might aid in the discovery or apprehension of such

person.

Id. Unlawful possession of a firearm is defined by § 571.070 as follows:

1. A person commits the crime of unlawful possession of a firearm if such

person knowingly has any firearm in his or her possession and:

(1) Such person has been convicted of a felony under the laws of this state, or

of a crime under the laws of any state or of the United States which, if committed

within this state, would be a felony; or

(2) Such person is a fugitive from justice, is habitually in an intoxicated or

drugged condition, or is currently adjudged mentally incompetent.

Id.

When compared under the Blockburger “same-element” test, it is clear that these two

statutes each contain elements not contained in the other. Unlawful possession of a firearm

requires the defendant to be either a convicted felon, a fugitive from justice, intoxicated or

drugged, or adjudged mentally incompetent, while none of these conditions is an element of

hindering prosecution. Alternatively, hindering prosecution requires a defendant to have the

purpose of “preventing the apprehension, prosecution, conviction, or punishment of another”

person, which is not necessary for the commission of unlawful possession of a firearm. Because

these statutes each contain an element not present in the other, Defendant’s second prosecution

was not barred by the Fifth Amendment’s Double Jeopardy Clause. 5 Point 2 is denied.

5

Defendant’s Blockburger argument focuses on the jury instructions for each offense.

His reasoning is flawed because our analysis of an “included offense” focuses on the statute

defining the offense, not the jury instructions. Hardin, 429 S.W.3d at 424.

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Point 3

Defendant’s third point is based on the language of § 556.041. In pertinent part, this

statute states:

When the same conduct of a person may establish the commission of more than

one offense he may be prosecuted for each such offense. He may not, however,

be convicted of more than one offense if

(1) One offense is included in the other, as defined in section 556.046; or

(2) Inconsistent findings of fact are required to establish the commission of the

offenses; or

(3) The offenses differ only in that one is defined to prohibit a designated kind

of conduct generally and the other to prohibit a specific instance of such

conduct[.]

§ 556.041. Defendant argues that his acquittal for the charge of hindering prosecution in his

first trial should have precluded prosecution in his second trial for felony murder predicated on

unlawful possession of a firearm. However, the plain language of § 556.041 shows its

inapplicability to the case at bar. This statute establishes circumstances under which a

defendant may not “be convicted of more than one offense[.]” Since Defendant was acquitted

of hindering prosecution in the first trial, he was not convicted of more than one offense within

the meaning of the statute in the second trial. 6 Accordingly, Point 3 is denied.

Point 4

Defendant’s fourth point contends the evidence was insufficient to sustain his

conviction for felony murder. As noted above, our review of this contention is limited to

6

Defendant contends that § 556.041 should apply because he was convicted of two

other charges during the first trial: possession of a controlled substance and tampering with

physical evidence. However, his argument then proceeds to apply § 556.041 to the offenses of

hindering prosecution and unlawful possession of a firearm. Defendant fails to show a

relationship between felony murder and either possession of a controlled substance or

tampering with physical evidence – the offenses for which he was actually convicted – that

would fall within the scope of any of the provisions of § 556.041.

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whether the State introduced adequate evidence from which a reasonable juror could have found

each element of the crime beyond a reasonable doubt. See State v. Lammers, 479 S.W.3d 624,

632 (Mo. banc 2016). We must consider all evidence in the light most favorable to the verdict

and grant the State all reasonable inferences. Id.

A person commits second-degree murder if he “[c]ommits or attempts to commit any

felony, and, in the perpetration or the attempted perpetration of such felony[,] another person

is killed as a result of the perpetration or attempted perpetration of such felony[.]”

§ 565.021.1(2). “A person commits the crime of unlawful possession of a firearm if such person

knowingly has any firearm in his or her possession and: (1) [s]uch person has been convicted

of a felony under the laws of this state ….” § 571.070.1(1). Because the word “knowingly”

only appears in the first element of this statute, there is no requirement that the State prove a

mental state as to the second element. State v. Purifoy, 495 S.W.3d 822, 825 (Mo. App. 2016)

(holding that the State was not required to prove that the defendant knew he had a prior felony

conviction, only that he knowingly possessed a firearm); see also State v. Fikes, 597 S.W.3d

330, 334 (Mo. App. 2019) (agreeing with Purifoy and holding that the State was not required

to prove the defendant knew he had a prior felony conviction).

The second-amended information alleged, inter alia, that Defendant acted in concert

with Collins in committing the crime of unlawful possession of a firearm.

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.

§ 562.041.1(2). “The underlying premise for this statutory form of criminal liability is that all

persons who act in concert to commit a crime are equally guilty.” State v. Mueller, 568 S.W.3d

62, 71 (Mo. App. 2019). “Missouri eliminated the distinction between principals and

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accessories in 1979, and it is now the law that all persons who act in concert are equally guilty.”

State v. Barnum, 14 S.W.3d 587, 591 (Mo. banc 2000). Evidence to support a conviction may

be “[a]ny evidence, either direct or circumstantial, that shows ‘affirmative participation’ in

aiding” another to commit the crime. Mueller, 568 S.W.3d at 71. “[T]he requirement of

affirmative participation may be satisfied by inference.” Id.

Defendant argues that there was insufficient evidence to support the element of

proximate cause required for felony murder. According to Defendant, there were two

intervening acts that broke the chain of causation between his actions and Collins’ death: (1)

Collins exiting the car; and (2) Deputy Chism following Collins on foot instead of continuing

to pursue Defendant’s car.

We apply a “foreseeability” proximate-cause analysis in felony murder cases, which

permits a defendant to be held “responsible for any deaths that are the natural and proximate

result of the crime unless there is an independent intervening cause.” State v. Burrage, 465

S.W.3d 77, 80 (Mo. App. 2015). Felony murder requires the underlying felony and the killing

to be parts of a single continuous transaction and to be closely connected in time, place, and

causal relationship. State v. Priest, 585 S.W.3d 397, 399 (Mo. App. 2019). We must

“determine if the underlying felony ‘set into motion the chain of events’ that caused the death.”

Id. (quoting Burrage, 465 S.W.3d at 80).

There was sufficient evidence from which a reasonable juror could have concluded

beyond a reasonable doubt that Defendant’s act of aiding Collins in the unlawful possession of

a firearm proximately caused Collins’ death. First, there was sufficient evidence to prove that

Collins knowingly possessed a firearm and that he had a prior felony conviction. Second,

Defendant knew Collins had a gun during the pursuit. Defendant continued to flee at Collins’

instruction because “he had a warrant [and] a gun.” When Collins told Defendant to slow down

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so Collins could jump out of the vehicle, Defendant did so. Collins’ flight from the vehicle

quickly led to Deputy Chism chasing Collins on foot and the two men shooting each other. The

shooting occurred close in time and place to Defendant letting Collins out of the car.

Ultimately, Defendant helped an armed individual flee from an armed police officer, and a

reasonable jury could decide that a shootout was foreseeable as a natural and proximate result

of this act.

Defendant’s claim that there were two independent intervening acts is without merit.

Defendant cannot assert that Collins exiting the car was an independent act because Collins’

departure was only made possible by Defendant’s choice to slow the car. This act was not only

foreseeable; it was directly caused by Defendant’s actions. An intervening act is not

independent when it is a result of a defendant’s own actions. See State v. Moore, 580 S.W.2d

747, 752-53 (Mo. banc 1979) (“the act of Williams was not an independent act because it was

the attempted robbery by the appellant and his accomplices which provoked Williams to pull

the pistol he was carrying from his waistband and it was the shot fired from one of the felons

which brought Williams’ return fire”). As to Defendant’s second claimed intervening act,

Deputy Chism’s decision to follow Collins on foot may not have been expected by Defendant,

but it was foreseeable under the circumstances. After pursuing Defendant’s car for some time,

Deputy Chism would have seen the car slow down and a man with a backpack exit and run

away. It would have been entirely reasonable for Deputy Chism to determine that the man

fleeing on foot was doing so because he was carrying something he was attempting to hide from

the pursuing police officer. Deputy Chism’s choice to pursue Collins was a direct consequence

of Defendant’s choice to let Collins out of the car, so it was not an independent intervening act.

Point 4 is denied.

The judgment of the trial court is affirmed.

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JEFFREY W. BATES, J. – OPINION AUTHOR

MARY W. SHEFFIELD, J. – CONCUR

JENNIFER R. GROWCOCK, J. – CONCUR

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