In the 

Missouri Court of Appeals 

Western District

STATE OF MISSOURI,

Respondent,

v.

NATHAN R. HENDRICKS,

Appellant.

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WD83205

OPINION FILED: March 9, 2021

Appeal from the Circuit Court of Jackson County, Missouri

The Honorable Marco Roldan, Judge

Before Division Four: Cynthia L. Martin, Chief Judge, Presiding, Lisa White Hardwick, 

Judge and Mark D. Pfeiffer, Judge

Nathan R. Hendricks ("Hendricks") appeals from a judgment convicting him of 

felony murder in the second degree, burglary in the first degree, attempted robbery in the 

first degree, and two counts of armed criminal action. Hendricks asserts that the trial 

court committed error in instructing the jury on the charge of attempted robbery in the 

first degree, in failing to dismiss the charge of attempted robbery in the first degree due to 

an insufficient information, and in denying his motion for judgment of acquittal on the 

charge of felony murder in the second degree. Finding no error, we affirm. 
2

Factual and Procedural Background1

During 2017, Hendricks and Sheila Casey ("Casey") were in an "off-and-on" 

romantic relationship. At the same time, Casey was spending time with William Domann 

("Domann"). 

Hendricks and Casey ended their relationship in October 2017. Hendricks took a 

truck that Casey wanted, and Casey took a Corvette from Hendricks. Domann helped 

Casey hide the Corvette. Despite the end of their relationship, Casey and Hendricks 

remained in communication. 

On Sunday, October 29, 2017, at 2:16 p.m., Hendricks sent Casey a text message 

that read, "Well, I'm heading over to take care of it tonight. I love you. In touch with 

you. Or they going to pick you up tomorrow so good luck. I'm turning the phone off to 

see you." That same day, Casey spent time with Domann, including going to Ameristar 

Casino. Casey and Domann left the casino at approximately 11:25 p.m., and went back 

to Casey's house for a drink before Domann went home. At 2:12 a.m. on October 30, 

2017, Domann sent Casey a text message that read, "goodnight." 

Later that morning, Casey unsuccessfully tried to contact Domann. Casey and a 

friend went to Domann's home in Independence, Missouri. When they arrived, Casey 

noticed that the door was splintered and opened. Casey walked in the house and called 

Domann's name. He did not answer. Casey asked her friend to call the police. 

 

1We view the evidence in the light most favorable to the jury's verdict, disregarding all contrary evidence 

and inferences. State v. Campbell, 600 S.W.3d 780, 784 n.1 (Mo. App. W.D. 2020). 
3

The police arrived at Domann's home at approximately 10:30 a.m. Officer 

Cameron Ault ("Officer Ault") testified that the door and its frame had sustained damage 

that indicated it had been forced open. After calling out their presence and hearing no 

response, officers entered a bedroom, where they found Domann deceased. Domann was 

in bed, partially covered with a blanket. Domann's hands were bound with zip ties above 

his head. Officer Ault observed that Domann had an apparent gunshot wound to his 

neck. An autopsy revealed that Domann suffered blunt-force injuries to his face and 

hands around the time of his death, and multiple gunshot wounds to his head, shoulder, 

forearm, and hand. Stippling observed on Domann's head indicated he had been shot 

from a close range. 

Officers found a .9-millimeter handgun, with a live round in the chamber and 

seven rounds in the magazine, at the foot of the bed. Several empty .9-millimeter 

cartridge casings were found in the bedroom, along with a bullet lodged in insulation 

behind a bedroom wall and bullet fragments in the floor. Forensic analysis of the 

cartridge casings, bullets, and bullet fragments led to the conclusion that at least two guns 

were used in the shooting. Though one gun fired five of the recovered cartridge casings,

it was not the handgun found at the scene. Similarly, the bullets and bullet fragments 

could have been fired from the same firearm, but were not fired from the handgun found 

on the scene. A sixth cartridge casing found at the scene could not be ruled out as having 

been fired from the handgun found at the scene.

Officers found a trail of blood droplets leading from the bedroom where Domann 

was found, to the hall, through the kitchen and living room, out the front door, and onto 
4

the front porch. The blood droplets then led through a large wooded area behind the 

home. Officers followed a grass trail through the wooded area and found a roll of duct 

tape. The grass trail eventually led to a creek. On the other side of the creek was a strip 

mall parking lot, where officers found the liner of a jacket, a fleece glove, and zip ties 

that appeared to be of the type used to bind Domann's hands. A blood stain was also 

found on the concrete. 

A tenant located in the strip mall had surveillance cameras. Detective Chad Cox 

("Detective Cox") reviewed footage from the cameras. He observed a man limping in the 

parking lot behind Domann's home at around 5:34 a.m. on October 30, 2017, before 

getting in a white pickup truck. The video appeared to show a person on the passenger 

side sliding over to the middle of the seat to make room for the limping man.

Additional surveillance footage showed the same white pickup truck stopping at a 

nearby gas station at 4:57 a.m. the same morning. Hendricks exited the pickup truck, 

entered the store, and purchased items before leaving the gas station five minutes later. 

Surveillance footage from another local business showed the same white pickup truck 

traveling toward Domann's home around 5:11 a.m. 

DNA analysis of the blood found on the kitchen floor, the front porch, and the 

concrete were matched to Xavier Otero ("Otero"). When Detective Cox arrested Otero, 

he was suffering from a gunshot wound to his right leg. Detective Cox interviewed Otero 

and learned about the involvement of Onelio Garcia ("Garcia") in Domann's shooting. 

Garcia was arrested on November 4, 2017. 
5

Detective Cox received a tip that Hendricks had gone to his brother's home in 

Columbia, Missouri. Hendricks's brother confirmed that Hendricks and Casey had been 

to his house. Hendricks's brother gave Detective Cox the phone number that Hendricks 

had been using. Detective Cox tracked that phone number, leading to Hendricks's arrest 

in Gulfport, Mississippi. When he was arrested, Hendricks produced a driver's license 

that belonged to his brother. Casey was with Hendricks when he was arrested.2 

The State charged Hendricks via information as a prior and persistent offender 

with felony murder in the second degree ("Count I"), armed criminal action ("Count II"), 

burglary in the first degree ("Count III"), attempted robbery in the first degree ("Count 

IV"), and armed criminal action ("Count V").

3

 Garcia and Otero were also charged in 

connection with Domann's murder. Garcia was initially charged with murder in the first 

degree.4 However, Garcia reached an agreement with the State to plead guilty to murder 

in the second degree, armed criminal action, burglary in the first degree, attempted 

robbery in the first degree, and armed criminal action, in exchange for testifying against

Otero and Hendricks. 

During Hendricks's trial in August 2019, Garcia testified that he had known Otero 

for approximately ten years, but first met Hendricks on October 29, 2017, after smoking 

methamphetamine earlier that day. Garcia testified that he bought and sold tools, and his 

 

2Casey was later arrested for, and pleaded guilty to, hindering prosecution of a felony. 

3The State initially charged Hendricks via indictment with felony murder in the second degree, armed 

criminal action, burglary in the first degree, robbery in the first degree, and armed criminal action. The State later

filed a motion for leave to file an information in lieu of indictment and explained at a pretrial hearing that it was 

reducing Count IV, robbery in the first degree, to attempted robbery in the first degree because the State could not 

establish that "they took the money." 

4The record does not indicate how Otero was charged. 
6

mechanic gave Hendricks's phone number to Garcia so they could do business. Garcia 

called Hendricks. Then Garcia, his four-year-old son, and Otero went to Independence to 

meet Hendricks. Hendricks showed Garcia tools that he was looking to sell for about 

$5,000. Garcia found a buyer for the tools, and Hendricks drove Garcia, Garcia's son, 

and Otero in his white truck back to Kansas City, Kansas for the sale. The men dropped 

Garcia's son off, and then they went to Otero's home, where they met the potential 

buyers. The potential buyers were interested, and Garcia asked them, as instructed by 

Hendricks, if they would pay in cash or in methamphetamine. A deal was never reached. 

Garcia testified that when he told Hendricks a deal was not reached, Hendricks 

"got really upset," and blamed Garcia. According to Garcia, Hendricks "started making 

threats," "pulled a gun out," and "started waving [the gun] around and [saying] he was 

going to kill [Garcia]." Hendricks said that Garcia owed Hendricks money and that "he 

was going to get his money regardless whether it was cash or blood." Hendricks then 

took Garcia for a drive in the white pickup truck, eventually stopping at 7th Street Casino 

in Kansas City, Kansas for a short time. Garcia testified that Hendricks then continued to 

drive Garcia around while making threats. 

Eventually, Hendricks told Garcia that "he had a job that if [Garcia] did it, 

[Garcia] would be able to cancel what [Garcia] owed him." According to Garcia, 

Hendricks said that there was an older man who was "messing with" his wife and that the 

man had $50,000 to $100,000 cash and Xanax in his home. Garcia testified that 

Hendricks said that he had been stalking the man for approximately a month. Hendricks 

said that the man was harmless, but told Garcia that he believed the man and "his girl" 
7

were "in cahoots," hiding a Corvette from Hendricks. Garcia agreed to do what 

Hendricks wanted. 

The pair returned to Otero's home to plan how "to force the guy to give [them] the 

money that he had and the Xanax" "[b]y any means necessary." The plan was for 

Hendricks to drive Garcia and Otero in his pickup truck to Domann's home, and then 

Garcia and Otero would "go in with guns, tie [Domann] up, try and get his money and 

Xanax." Hendricks was supposed to drive up and down the road behind Domann's house, 

waiting for Otero and Garcia to call him when they were done. Otero took two guns out 

of his pocket during the drive to Independence. Otero gave one gun to Garcia. Before 

arriving at Domann's home, Hendricks stopped at a store, and then gave Otero and Garcia 

gloves, duct tape, and zip ties, and told them to use the items if necessary. Hendricks 

then stopped at a gas station to buy beverages. 

Hendricks then drove to Domann's home, and dropped off Otero and Garcia. 

Otero and Garcia used their shoulders to force their way into Domann's home, and then 

went to Domann's bedroom. Otero began wrestling with Domann, while Garcia fumbled 

around for the light switch. Otero told Garcia that he needed help. As Garcia was on the 

way to help Otero, Garcia's gun fired. Otero screamed that he had been hit, told Garcia to 

"get back," and fired multiple shots at Domann. Garcia testified that Otero fired the shots 

"during the process of . . . trying to forcibly subdue [the victim] so [they] could commit 

[the] robbery and burglary." 

At that point, Garcia dropped his gun and started running out of the house. Once 

he realized that Otero was calling for his help and limping, Garcia returned and helped 
8

Otero into the wooded area behind the house. Garcia left Otero in the woods and went to 

the road to flag down Hendricks. Garcia got into Hendricks's truck. Then the men saw 

Otero and stopped to pick him up in the parking lot behind Domann's house. Hendricks 

drove the two men to Otero's house and told them they needed to get out of town. 

Hendricks's cell phone records corroborated Garcia's testimony. The analysis 

showed that, at approximately 10:30 p.m. on October 29, 2017, Hendricks's cell phone 

was located in Kansas City, Kansas. Between 12:10 a.m. and 2:23 a.m. on October 30, 

2017, Hendricks's cell phone communicated with cell phone towers near 7th Street 

Casino in Kansas City, Kansas. Hendricks's cell phone had no communication with cell 

phone towers until 5:54 a.m., when it communicated with a cell phone tower a little 

southeast of Domann's home. Then between 6:02 a.m. and 6:07 a.m., Hendricks's cell 

phone communicated with a different tower, indicating that the phone was traveling west. 

Between 6:09 a.m. and 8:59 a.m., Hendricks's phone communicated with a series of cell 

phone towers indicating that the phone traveled from Independence, Missouri to Kansas 

City, Kansas. 

Hendricks testified at trial and denied any involvement in the burglary, robbery, or 

murder of Domann. Hendricks offered a very different account of the events on October 

29 and 30, 2017. Hendricks testified that he had bought a Corvette in Columbia with a 

bad check. The car dealership demanded that Hendricks either pay for the vehicle or 

return the vehicle by October 30, 2017. Hendricks said that the text message he sent 

Casey on October 29, 2017, that said he was "tak[ing] care of it tonight" referred to going 

to Columbia to talk to the car dealership. 
9

Hendricks testified that he met Garcia and Otero later on October 29, 2017, in 

Independence to arrange the sale of tools and a trailer to a potential buyer in Kansas City, 

Kansas. Hendricks drove the two men, the trailer, and the tools to Kansas City, Kansas 

around 7:00 p.m. in his truck. Once the three men arrived to their destination in Kansas 

City, Kansas, other people arrived and spoke with Garcia, but the sale never occurred. 

Between 10:00 p.m. and 11:00 p.m. Hendricks told the men that he was going to 

go to 7th Street Casino and that they should call him once they had the money for the 

tools and trailer. Hendricks testified that he did not have a gun and he did not threaten 

Garcia or Otero. After spending approximately three hours at the casino, Hendricks 

received a phone call from Garcia, who said that the sale would be complete by the time 

Hendricks returned. However, the sale was not complete by the time Hendricks returned. 

Between 1:00 a.m. and 2:00 a.m. on October 30, 2017, Garcia said that they would need 

to go to the buyer's home and that he and Otero would need a ride back to Independence 

to get their vehicle. 

Hendricks testified that the three men drove around Kansas City, Kansas to two or

three locations, following Garcia's and Otero's directions. Hendricks then drove past 

casinos that Domann and Casey frequented and drove by Casey's and Domann's homes, 

looking for the Corvette. During the drive, Hendricks told Garcia and Otero that Casey 

was dating Domann and that he was looking for a Corvette. Hendricks denied ever 

making a deal with Garcia and Otero to make up the debt they owed him by breaking into 

a house; denied knowing that either man had a gun; and denied seeing Otero or Garcia 

with duct tape or zip ties. 
10

Hendricks testified that he then drove Garcia and Otero to their vehicle, but it 

would not run. Hendricks testified that Garcia and Otero said that they needed coolant 

and parts, so Hendricks dropped the men off at a nearby Walmart, which was within 

walking distance to Domann's home. Hendricks again told the men to call him whenever 

they had the money for the trailer and tools. Hendricks drove to a nearby gas station to 

look for a phone charger and to buy cigarettes and a snack. 

Hendricks testified that he then drove by Domann's house again, where he saw 

Garcia waving his arms and carrying a blue bag. Hendricks stopped to let Garcia in the 

truck. According to Hendricks's testimony, Garcia yelled that Otero had been shot, that 

someone was dead, and that he needed to get out of there. Hendricks testified that he 

looked over and saw Otero in the parking lot, waving. Hendricks drove to the parking lot 

to pick up Otero. Otero screamed that he had been shot and asked if Garcia "g[o]t the 

gun." Garcia then pulled a gun out of the bag he was carrying. Hendricks testified that 

Otero did not want to go to the hospital and instead wanted to go home. Hendricks drove 

the men back to Kansas City, Kansas, and dropped them off. 

Hendricks testified that he then went to his mechanic's house and used chemicals 

to wash Otero's blood off the floorboard of his truck. Hendricks testified that he 

panicked after a lawyer told him that there was a warrant out for his arrest, and he "drove 

off" with Casey, first stopping at his brother's home in Columbia to borrow a pair of 

glasses, gas money, and his brother's identification. Hendricks admitted that, when he 

was arrested in Mississippi, he gave police his brother's name and identification. 
11

The jury rejected Hendricks's version of the events and found him guilty as 

charged on all five counts. The trial court sentenced Hendricks as a prior and persistent 

offender to twenty years' imprisonment for felony murder in the second degree; twenty 

years' imprisonment for the related armed criminal action charge; ten years' imprisonment 

for burglary in the first degree; ten years' imprisonment for attempted robbery in the first 

degree; and ten years' imprisonment for the related armed criminal action charge. The 

trial court ordered the sentences to run concurrently. 

Hendricks appeals. 

Analysis

Hendricks does not challenge his conviction of burglary in the first degree. He 

does challenge his convictions of attempted robbery in the first degree, felony murder in 

the second degree, and both related charges of armed criminal action. In his first two 

points on appeal, Hendricks asserts that the trial court committed instructional error and 

failed to dismiss the information in lieu of indictment with respect to the charge of 

attempted robbery in the first degree. In his third point on appeal, Hendricks asserts that 

there was insufficient evidence to convict him of felony murder in the second degree. In 

all three points on appeal, Hendricks asserts that reversal of his convictions of either 

attempted robbery in the first degree or felony murder in the second degree will require 

reversal of the associated conviction of armed criminal action.

Point One: The Verdict Director for Attempted Robbery in the First Degree

Hendricks's first point on appeal argues that the trial court plainly erred in 

submitting Instruction No. 13, the verdict director for Count IV, attempted robbery in the 
12

first degree. Hendricks alleges that the instruction did not require the jury to find that a 

perpetrator was armed with a deadly weapon, a required essential element of the crime.

"To preserve a claim of instructional error, a defendant must make a specific 

objection to the instruction and the grounds of the objection; the same objection must be 

renewed in the motion for a new trial." State v. Welch, 600 S.W.3d 796, 806 (Mo. App. 

E.D. 2020). Hendricks acknowledges that he did not object to Instruction No. 13 at the 

instruction conference and did not raise the issue in his motion for new trial. Hendricks 

asks us to review the submission of Instruction No. 13 for plain error pursuant to Rule 

30.20. 

Rule 30.20 allows for review of "plain errors affecting substantial rights . . . in the 

discretion of the court when the court finds that manifest injustice or miscarriage of 

justice has resulted therefrom." Plain error review requires a two-step process: "first, we 

must determine whether the trial court committed evident, obvious, and clear error 

affecting the defendant's substantial rights; second, if plain error is found, we then 

consider whether the error actually resulted in manifest injustice or a miscarriage of 

justice. State v. Weyant, 598 S.W.3d 675, 678 (Mo. App. W.D. 2020) (quoting State v. 

Berry, 506 S.W.3d 357, 362 (Mo. App. W.D. 2016)). "For instructional error to rise to 

the level of plain error, [Hendricks] must demonstrate that the trial court so misdirected 

or failed to instruct the jury as to cause manifest injustice or miscarriage of justice." State 

v. Hudson, 574 S.W.3d 796, 804 (Mo. App. W.D. 2019) (quoting State v. Cooper, 215 

S.W.3d 123, 125 (Mo. banc 2007)). 
13

"Instructional error seldom rises to the level of plain error." Weyant, 598 S.W.3d 

at 678 (quoting Berry, 506 S.W.3d at 362). Verdict-directing instructions must "require 

the jury to find every fact essential to conviction," that is, "'every fact necessary to 

constitute essential elements of [the] offense charged.'" Hudson, 574 S.W.3d at 804 

(quoting Cooper, 215 S.W.3d at 125). A verdict-directing instruction that does not 

include every element of the crime is a due process violation, given that such an 

instruction would "relieve[] the State of its burden of proving each and every element of 

the crime and allow[] the State to obtain a conviction without the jury deliberating on and 

determining [every] contested element[] of that crime." Id. (quoting Cooper, 215 S.W.3d 

at 126). As such, "[p]lain error exists when an instruction omits an essential element and 

the evidence establishing the omitted element was seriously disputed.'" Id. (quoting State 

v. Zetina-Torres, 482 S.W.3d 801, 811 (Mo. banc 2016)).

Count IV of the information charged Hendricks with attempted robbery in the first 

degree in violation of section 570.0235 on a theory of accomplice liability. The essential 

elements of robbery in the first degree are described in section 570.023.1, which 

provides: 

A person commits the offense of robbery in the first degree if he or she 

forcibly steals property and in the course thereof he or she, or another 

participant in the offense: 

(1) Causes serious physical injury to any person; or 

(2) Is armed with a deadly weapon; or 

 

5All statutory references are to RSMo 2016 as supplemented through October 30, 2017, the date the crimes 

were committed. 
14

(3) Uses or threatens the immediate use of a dangerous instrument against 

any person; or 

(4) Displays or threatens the use of what appears to be a deadly weapon or 

dangerous instrument; or 

(5) Steals any controlled substance from a pharmacy. 

A person attempts to commit a crime, such as robbery in the first degree, if he or she 

"performs any act which is a substantial step towards the commission of the offense" with 

the purpose of committing the offense. Section 562.012.1. Accomplice liability makes 

"[a] person . . . criminally responsible for the conduct of another when . . . [e]ither before 

or during the commission of an offense with the purpose of promoting the commission of 

an offense, he or she aids or agrees to aid or attempts to aid such other person in 

planning, committing or attempting to commit the offense." Section 562.041.1(2).

Instruction No. 13 directed a verdict for attempted robbery in the first degree 

premised on accomplice liability as follows: 

A person is responsible for his own conduct and he is also responsible for 

the conduct of other persons in committing an offense if he acts with the 

other persons with the common purpose of committing that offense or if, 

for the purpose of committing that offense, he aids or encourages other 

persons in committing it. 

As to Count IV, if you find and believe from the evidence beyond a 

reasonable doubt: 

First, that on or about October 30, 2017, in the State of Missouri, Xavier 

Otero and Onelio Garcia armed with deadly weapons used physical force 

on William Domann, and 

Second, that such conduct was a substantial step toward the commission of 

the offense of robbery in the first degree, and 

Third, Xavier Otero and Onelio Garcia engaged in such conduct for the 

purpose of committing such robbery in the first degree, 
15

then you are instructed that the offense of attempted robbery in the first 

degree has occurred, and if you further find and believe from the evidence 

beyond a reasonable doubt: 

Fourth, that with the purpose of promoting or furthering the commission of 

attempted robbery in the first degree, the defendant encouraged or aided 

Xavier Otero and Onelio Garcia in committing the offense, 

then you will find the defendant guilty under Count IV of attempted 

robbery in the first degree. 

However, unless you find and believe from the evidence beyond a 

reasonable doubt each and all of these propositions, you must find the 

defendant not guilty of that offense. 

A person commits the offense of robbery in the first degree when he or 

she forcibly steals property. 

As used in this instruction, the term "substantial step" means conduct that is 

strongly corroborative of the firmness of the actor's purpose to complete the 

commission of the offense. 

(Emphasis added.) 

 Instruction No. 13 was submitted by the State and was patterned after MAI-CR 4th 

424.00 (the pattern instruction for robbery in the first degree). The instruction was 

modified by MAI-CR 4th 404.06 (the pattern instruction for attempts), by MAI-CR 4th 

433.00 (the pattern instruction used to define terms), and by MAI-CR 4th 404.04 (the 

pattern instruction for accomplice liability). Hendricks's claim of error on appeal relates

to the emphasized portion of the instruction, above, and thus to the manner in which 

MAI-CR 4th 424.00 was modified by MAI-CR 4th 404.06, the pattern instruction for 

attempts. 

MAI-CR 404.06 requires a verdict-directing instruction for attempt to include the 

following language: "A person commits the offense of [name of offense] when he [Insert 
16

definition of offense including all elements. Do not use the attempt language in the 

statute. See Notes on Use 4.]" Hendricks claims, and the State concedes, that this 

definition of robbery in the first degree is incomplete, as it did not refer to use of a deadly 

weapon, an essential element of the crime. Hendricks thus argues that because of the 

incomplete definition of robbery in the first degree set forth at the end of Instruction No. 

13, "the jury could convict Mr. Hendricks even if it believed testimony that he did not 

know Mr. Otero and Mr. Garcia had guns." [Appellant's Brief, p. 42] 

We agree that the definition of robbery in the first degree set forth near the end of 

Instruction No. 13 is incomplete. However, notwithstanding this error, Instruction No. 13 

otherwise required the jury to find each of the essential elements of attempted robbery in 

the first degree. Instruction No. 13 required the jury to find in paragraphs First, Second, 

and Third, beyond a reasonable doubt: (1) that Otero and Garcia, armed with deadly 

weapons, used physical force on Domann; (2) that this conduct was a substantial step 

toward the commission of robbery in the first degree; and (3) that Otero and Garcia 

engaged in this conduct for the purpose of committing robbery in the first degree. 

Instruction No. 13 then directed the jury to find in paragraph Fourth, beyond a reasonable 

doubt, that Hendricks, "with the purpose of promoting or furthering the commission of 

attempted robbery in the first degree, . . . encouraged or aided Xavier Otero and Onelio 

Garcia in committing the offense." While the definition of robbery in the first degree 

toward the end of Instruction No. 13 was incomplete, that error was harmless because the 

instruction otherwise required the jury to find from the evidence that every essential 

element of attempted robbery in the first degree had been proven beyond a reasonable 
17

doubt. Because Instruction No. 13 included every essential element of attempted robbery 

in the first degree, the State retained the burden to prove every element of the offense, 

and the jury could not have found Hendricks guilty unless it found the State met that 

burden.6 Accordingly, the trial court did not plainly err in giving the jury Instruction No. 

13. 

Our caselaw supports this conclusion. In State v. Guyton, 158 S.W.3d 252, 254 

(Mo. App. E.D. 2005), the trial court submitted a verdict-directing instruction for attempt 

to escape from custody that failed to include a definition of escape from custody, as was 

required by MAI-CR 3d 304.06. The defendant failed to object to the instruction at trial 

and asked for plain error review on appeal, arguing that the verdict-directing instruction 

for escape from custody "allowed the jury to convict him on fewer than the essential 

elements because it failed to include the requisite mental state." Id. The Eastern District 

examined the instruction at issue and observed that, while the "instruction did not require 

a finding that [the defendant] acted knowingly, the jury was instructed that it had to find 

he acted purposely." Id. at 255. The court concluded that requiring the jury to find the 

defendant acted purposely was sufficient to establish that the defendant acted knowingly 

 

6We further note that Instruction No. 15, the verdict-directing instruction for Count V, the associated count 

of armed criminal action, directed the jury to find Hendricks guilty of armed criminal action if it found that Otero 

and Garcia committed attempted robbery in the first degree "with the knowing use of a deadly weapon" and that 

Hendricks, "with the purpose of promoting or furthering the commission of armed criminal action, . . . encouraged 

or aided Xavier Otero and Onelio Garcia in committing the offense." The explicit inclusion of committing robbery 

with the knowing use of a deadly weapon in Instruction No. 15 necessarily required the jury to believe that 

Hendricks knew that Otero and Garcia intended to commit the robbery using guns. As such, the incomplete 

definition of attempted robbery in the first degree at the end of Instruction No. 13 was cured by Instruction No. 15 so 

that the error was not prejudicial. See State v. Cooper, 712 S.W.2d 27, 30 (Mo. App. E.D. 1986) (finding no 

prejudice when, in a prosecution for escape from confinement using a dangerous weapon, the verdict-directing 

instruction omitted the element of using a dangerous instrument because the error was cured by the armed criminal 

action verdict-directing instruction, which directed the jury to find that the escape was committed by using a 

dangerous instrument). 
18

because "[w]hen acting knowingly suffices to establish a culpable mental state, it is also 

established if a person acts purposely." Id. (quoting section 562.021.4, RSMo 2000). 

Thus, the trial court's "failure to define the object crime was harmless because the 

instruction otherwise contained all the essential elements, including that [the defendant] 

acted with the requisite mental state." Id. The Eastern District found no plain error. Id.

at 256; see also State v. Bozarth, 51 S.W.3d 179, 182 (Mo. App. W.D. 2001) (concluding 

that a jury instruction that omitted the definition of knowingly but instead directed the 

jury to find the defendant guilty if he attempted to escape from confinement "for the 

purpose of escaping" did not result in a manifest injustice or a miscarriage of justice 

because acting knowingly is established if a person acts purposely).

7

 

Point One is denied. 

Point Two: Sufficiency of the Information to Charge Attempted Robbery in the First 

Degree

Hendricks's second point on appeal concerns Count IV of the information, which 

charged Hendricks as follows: 

[T]he defendant, in violation of Section 570.023, RSMo, committed the 

class B felony of attempted robbery in the first degree, punishable upon 

conviction under Section 558.011, RSMo, in that on or about October 30, 

2017, in the County of Jackson, State of Missouri, the defendant either 

acting alone or purposefully in concert with others armed with a deadly 

weapons [sic], duct tape and zip ties used physical force on William 

 

7The authority cited by Hendricks does not alter our conclusion. State v. Brokus, 858 S.W.2d 298, 302

(Mo. App. E.D. 1993), concerned a verdict-directing instruction for attempted felonious restraint that omitted

"serious" before "physical injury." The Eastern District concluded that the instruction "change[d] the magnitude of 

the threatened injury that must be proven" so that the trial court committed plain error. Id. Hendricks also cites 

State v. Carpenter, 57 S.W.3d 405, 410 (Mo. App. S.D. 2001), where a verdict-directing instruction for burglary in 

the first degree incorrectly defined the intended crime of assault and allowed the jury to find defendant committed 

assault purposely or knowingly, thereby relieving the State of the burden to prove the higher mental element of 

purposely. As discussed supra, Instruction No. 13 required the jury to find every element of attempted robbery in 

the first degree. 
19

Domann, and in the course thereof Onelio Garcia and Xavier Otero were 

armed with a deadly weapons [sic]. 

(Emphasis omitted.) Hendricks claims that the trial court erred in failing to dismiss 

Count IV of the information because it was insufficient to charge him with attempted 

robbery in the first degree as it provided inadequate notice of the crime charged. 

Specifically, Hendricks claims that Count IV of the information "failed to allege any 

criminal intent or any purpose or intent to cause harm, steal, rob, or commit any crime." 

[Appellant's Brief, p. 51] 

Hendricks's claim of error was not raised at trial, nor included in Hendricks's 

motion for new trial. However, Rule 29.11(d)(2) provides that a claim of error 

challenging whether an information states an offense need not be included in a motion for 

new trial to preserve the claim for appellate review. "[A] defendant may for the first time 

on appeal raise . . . a . . . claim that the indictment or information was insufficient to 

charge the crime of which the defendant was convicted." State v. Parkhurst, 845 S.W.2d 

31, 35 (Mo. banc 1992). As such, Hendricks's point on appeal is preserved for our 

review. 

A charging document will only be deemed insufficient if it was "so defective that 

(1) it does not by any reasonable construction charge the offense of which the defendant 

was convicted or (2) the substantial rights of the defendant to prepare a defense and plead 

former jeopardy in the event of acquittal are prejudiced." State v. Beck, 557 S.W.3d 408, 

420 (Mo. App. W.D. 2018) (quoting Parkhurst, 845 S.W.2d at 35). If the charging 

document is insufficient under either basis, the defendant must then "demonstrate actual 
20

prejudice, which is that 'the information or indictment was either so deficient that the 

defendant was not placed on notice as to what crime he or she was being charged with or 

was so lacking in clarity that the defendant was unable properly to prepare a defense.'" 

Id. (quoting State v. Williams, 126 S.W.3d 377, 381 (Mo. banc 2004)). Whether a 

charging document is sufficient to state an offense is a question of law, which we review 

de novo. State v. Baker, 548 S.W.3d 444, 448 (Mo. App. W.D. 2018). 

As discussed supra, attempted robbery in the first degree requires proof that the 

defendant performed an act that constituted a substantial step toward forcibly stealing 

property and, in the course thereof, the defendant or another participant was armed with a 

deadly weapon. See section 562.012.1; section 570.023.1. Stealing, as defined by 

section 570.030.1(1), occurs if a person "[a]ppropriates property or services of another 

with the purpose to deprive him or her thereof, either without his or her consent or by 

means of deceit or coercion." Thus, an essential element of attempted robbery in the first 

degree is that the defendant intended to permanently deprive the victim of property. State 

v. Walther, 581 S.W.3d 702, 710 (Mo. App. E.D. 2019). 

The State concedes on appeal that Count IV of the information failed to expressly 

allege that Hendricks or one of his co-defendants, Otero or Garcia, stole or attempted to 

steal property from Domann. Because the information failed to expressly allege that 

Hendricks or one of his co-defendants stole or attempted to steal property from Domann, 

it is axiomatic that the information also failed to expressly allege that either Hendricks or 

his co-defendants had the purpose to deprive Domann of property permanently. 

However, this omission does not render the information insufficient. 
21

"The purpose of an information is 'to inform the accused of charges against him so 

that he may prepare an adequate defense and to prevent retrial on the same charges in 

case of an acquittal.'" State v. Allen, 905 S.W.2d 874, 879 (Mo. banc 1995) (quoting 

State v. O'Connell, 726 S.W.2d 742, 746 (Mo. banc 1987)). A charging instrument will 

ordinarily meet this standard if it cites the statutory section outlining the crime for which 

the defendant is charged. Id. "[W]here the information expressly refers to a statutory 

section that contains the elements of the crime, the information is not fatally insufficient 

even if the information itself does not repeat all of the elements of the offense." Id. 

Here, the information expressly charged Hendricks with violating section 570.023, 

the statute which describes the essential elements of robbery in the first degree. The 

information also identified the date of, place of, and acts constituting the offense, thereby 

placing Hendricks on notice of the offense charged so that he had the opportunity to 

prepare a defense and preventing retrial on the same charge in the case of acquittal. See 

Parkhurst, 845 S.W.2d at 35 (concluding that because the information cited the statute, 

which included the level of culpability required for the defendant to be convicted, the 

omission of the word "knowingly" did not impact the preparation of the defense and 

would not prevent the defendant from asserting double jeopardy, had he been acquitted). 

The trial court did not err in failing to dismiss Count IV of the information as insufficient.

Point Two is denied. 
22

Point Three: Sufficiency of the Evidence to Prove Felony Murder in the Second 

Degree

Hendricks's final point on appeal asserts that the trial court committed error in 

denying his motion for judgment of acquittal on Count I, felony murder in the second 

degree, in entering judgment on the verdict convicting Hendricks of felony murder in the 

second degree, and in sentencing Hendricks for that crime. Hendricks claims that there 

was insufficient evidence to establish beyond a reasonable doubt that he committed 

felony murder in the second degree because the State failed to establish that the homicide 

occurred during and as a result of the underlying felony of burglary in the first degree. 

The State charged burglary in the first degree based on Garcia and Otero 

"knowingly enter[ing] unlawfully" an inhabitable structure. Hendricks does not challenge 

the sufficiency of the evidence to support a conviction of burglary in the first degree as 

charged. However, Hendricks claims that the charged crime of burglary had been fully 

committed once Otero and Garcia unlawfully entered Domann's home with the intent to 

steal money and Xanax. Since Domann was not killed until after the essential elements 

of burglary in the first degree as charged had been committed, Hendricks argues that 

Domann's death could not have occurred during or as a result of the crime, as required to 

support a conviction of felony murder in the second degree.8 

"Our 'review of sufficiency of the evidence is limited to whether the State has 

introduced sufficient evidence from which a reasonable juror could have found each 

element of the crime beyond a reasonable doubt.'" State v. Campbell, 600 S.W.3d 780, 

 

8Hendricks acknowledges that had the State charged Hendricks with felony murder in the second degree 

based on knowingly remaining in an inhabitable structure, there is authority that would support the conclusion that 

the evidence was sufficient to convict him of felony murder in the second degree.
23

786 (Mo. App. W.D. 2020) (quoting State v. Ajak, 543 S.W.3d 43, 46 (Mo. banc 2018)). 

In determining whether the evidence was sufficient to support the conviction and 

withstand a motion for judgment of acquittal, we do not weigh the evidence; instead we 

view the evidence and inferences drawn therefrom in the light most favorable to the 

verdict, disregarding all contrary evidence and inferences. Id. We will not, however, 

"supply missing evidence or grant the State unreasonable, speculative, or forced 

inferences." Ajak, 543 S.W.3d at 46 (quoting State v. Lammers, 479 S.W.3d 624, 632 

(Mo. banc 2016)). 

Felony murder in the second degree is described in section 565.021.1(2), which

provides: 

A person commits the offense of murder in the second degree if he or she: . 

. . [c]ommits or attempts to commit any felony, and, in the perpetration or 

the attempted perpetration of such felony or in the flight from the 

perpetration or attempted perpetration of such felony, another person is 

killed as a result of the perpetration or attempted perpetration of such 

felony or immediate flight from the perpetration of such felony or 

attempted perpetration of such felony.

Felony murder in the second degree requires proof of the commission or attempted 

commission of any felony, and the death of any person as a result of the perpetration or 

attempted perpetration of such felony, or as a result of the immediate flight from the 

perpetration or attempted perpetration of such felony. Section 565.021.1(2); see also

State v. Oates, 540 S.W.3d 858, 861 (Mo. banc 2018). The central question in a 

prosecution for felony murder in the second degree is whether a "person died as a result 

of the defendant's commission of the underlying felony, without regard to the defendant's 

role in the fatal act." Oates, 540 S.W.3d at 861. 
24

The information charged Hendricks with felony murder in the second degree 

because "William Domann was killed by being shot as a result of the attempted 

perpetration of the class B felony of burglary in the first degree under Section 569.160, 

RSMo committed by [Hendricks] either acting alone or purposefully in concert with 

others . . . ." The information charged Hendricks with burglary in the first degree

because "[Hendricks] either acting alone or purposefully in concert with others, 

knowingly entered unlawfully in an inhabitable structure, located at 12501 E 43rd ST 

South, Independence, Missouri and possessed by William Domann, for the purpose of 

committing stealing therein, and while in such an inhabitable structure there was present 

in such inhabitable structure William Doman[n], a person who was not a participant in 

the crime." Hendricks argues the crime of burglary as charged was completed as soon as 

Otero and Garcia crossed over the Domann's home's threshold, and that there was no 

evidence to support a conclusion that Domann 's death occurred during and as a result of 

the burglary. 

We rejected a similar argument in State v. Manuel, 443 S.W.3d 669 (Mo. App. 

W.D. 2014). There, the defendant and an accomplice met with the driver and passenger 

of a car in an attempt to sell them crack cocaine. Id. at 671. The driver and passenger 

decided not to purchase the drugs, and as the driver started to drive away, he heard at 

least five gunshots. Id. The driver looked over to the passenger and saw that she had 

been shot. Id. The passenger succumbed to her injuries. Id. at 671-72. The defendant 

was convicted of felony murder in the second degree based on the underlying felony of 

attempted sale of a controlled substance and armed criminal action. Id. at 672. 
25

On appeal, the defendant argued that "there was insufficient evidence to convict 

him of felony murder because the jury could not have concluded beyond a reasonable 

doubt that [the victim] was shot 'in the perpetration of' or 'in the flight from the 

perpetration of' the underlying felony of attempted sale of a controlled substance." Id. 

We summarized the defendant's argument as follows: 

It is not in contest that [section 565.021.1(2)] [includes] the essential 

elements of the commission or attempted commission of a felony, and a 

death. . . . [The defendant] argues that . . . the statute creates two [other] 

discrete essential elements of felony murder: a temporal element (that a 

killing occurs while and thus during the time the essential elements of a 

felony or its attempt are being perpetrated, or while or during the 

immediate flight therefrom), and a causation element (that a killing occurs

as a result of the felony, its attempt, or the immediate flight therefrom).

Id. at 673. 

We rejected the defendant's proposed interpretation of section 565.021.1(2), 

concluding that "the legislature intended the phrase 'in the perpetration or the attempted 

perpetration' to broadly encompass a continuum from the point where the commission of 

a felony begins through the point where all other acts or consequences reasonably 

associated with the felony have occurred including, but not limited to, flight." Id. at 674. 

Thus, the State only has the burden to prove beyond a reasonable doubt "that each of the 

essential elements of the underlying felony were committed, and not that a death occurred 

while those elements were being committed." Id. As such, the evidence will be 

sufficient to support a conviction for felony murder in the second degree if there is 

evidence both that (1) the defendant committed the underlying felony offense; and (2) 

another person died as a result of the perpetration of or flight from perpetration of the 
26

underlying felony offense. Id. at 675. We concluded that the evidence permitted the 

conclusion that the victim died as a result of the perpetration of, or flight from the 

perpetration, of the attempted sale of crack cocaine, given that the passenger was shot as 

the driver sped away from the attempted drug buy. Id. at 677. "The attempt to sell the 

crack cocaine and [the victim's] death 'were parts of one continuous transaction, and were 

closely connected . . . in time, place and causal relation.'" Id. (quoting State v. Baker, 607 

S.W.2d 153, 157 (Mo. banc 1980)). 

The Manuel decision demands the same conclusion here. Hendricks concedes that 

the evidence was sufficient for the jury to have concluded that Hendricks, either acting 

alone or purposely in concert with others, knowingly entered Domann's home for the 

purpose of committing stealing therein. Thus, the only question that remains is whether 

there was sufficient evidence for the jury to conclude beyond a reasonable doubt that 

Domann's death was a result of the perpetration of, or flight from the perpetration of, the 

burglary. The evidence permitted this conclusion beyond a reasonable doubt. Otero shot 

Domann after he and Garcia, pursuant to the plan the two men had conceived with 

Hendricks, forced their way into Domann's home with the intent to steal Xanax and a 

large quantity of cash. The burglary and Domann's death "were parts of one continuous 

transaction, and were closely connected . . . in time, place and causal relation." Manuel, 

443 S.W.3d at 677 (quoting Baker, 607 S.W.2d at 157). 

Point Three is denied. 
27

Conclusion

The trial court's judgment of conviction and sentence is affirmed. 

__________________________________

Cynthia L. Martin, Judge

All concur