Criminal Law : Felon In Possession – Felony Murder- Necessity Defense

Listen to this article

(1)Where the mother of defendant’s children was killed while they were present during the struggle for a gun that he illegally possessed as a felon, the felon-in-possession conviction was sufficient as an underlying felony to support a conviction for felony murder because a rational juror could find that the defendant’s illegal possession of a gun was a foreseeably proximate cause of the victim’s death, and an instructional error on the felony-murder charge did not result in manifest injustice.

(2)Where defendant and the mother of his children argued, struggled for control of a gun resulting in the mother’s accidental shooting, and the defendant left the children with their dying mother, adequate evidence supported four counts of endangering the welfare of a child.

(3)Where a defendant in a felony murder case challenged the denial of a continuance to depose a doctor, the testimony would have been cumulative, so the denial was not an abuse of discrection, and the exclusion of evidence concerning past domestic violence was proper because the evidence was not legally relevant.

(4)Where a defendant in a felony murder case argued that the trial court erred in refusing to grant a jury instruction on the defense of necessity, an emergency justification instruction can only be given when the situation developed through no fault of the actor, and the defendant illegally brought the gun into the home, so the court did not err, but a reversal and remand is necessary for the correction of a clerical error in the written judgment.

Judgment is affirmed in part; reversed and remanded.

State v. Harding (MLW No. 70450/Case No. ED104013 – 24 pages) (Missouri Court of Appeals, Eastern District, Page, J.) Appealed from circuit court, Warren County, Sutherland, J. (Samuel Buffaloe for appellant) (Christine Lesicko for respondent).

Read the full text of this opinion. (PDF)