JOSEPH M. ELLIS, Judge,
dissenting.
The events involved in this case are clearly tragic beyond measure, and the actions proven to have been taken by Appellant are not only reckless and deplorable, but stupid and senseless. However, “[d]ue process requires that, in order to convict a person of a crime, the State is required to prove beyond a reasonable doubt each and every element of the crime charged.” State v. Danikas, 11 S.W.3d 782, 788 (Mo.App. W.D.1999). Appellant was charged and convicted of first degree murder. “To convict him of first degree murder, the State was required to prove beyond a reasonable doubt that he (1) knowingly (2) caused the death of [Mr. Johnson] (8) after deliberation upon the matter.” Id. at 789. The State failed to prove that Appellant knowingly caused Mr. Johnson’s death, much less that he deliberated. The majority’s holding to the contrary is based upon unreasonable inferences, speculation, and conjecture. For this reason, I must respectfully dissent.
The evidence presented at trial reflected the following. Shortly after 3 a.m. on October 10, 2004, Amanda James pulled into an open gas station located at 75th Street and Troost Avenue and backed her car into a parking space next to a retaining wall at the back of the lot. A six-foot-high wood privacy fence stood above the retaining wall and bounded the back yards of several homes behind the gas station. The gas station was busy and approximately twelve cars and numerous people were present in the area.
Shortly after parking, Ms. James heard a loud popping noise and noticed everyone in the station looking her direction. Thirty seconds later, Daniel Johnson, who was to meet James at the gas station, pulled into the lot and parked next to her. Mr. Johnson got out of his car, took one step toward Ms. James, and fell to the ground between the two cars as another loud popping noise rang out. Ms. James pulled forward and opened the door to her car for Mr. Johnson to get in. At that point, she noticed the bullet wound Mr. Johnson had received in the head, three inches above his right ear. She got out of her car and started screaming for help. When no one responded to her pleas, Ms. James dialed 911.
When the police arrived and examined the scene, a bullet mark was discovered on the back-edge of the top of Ms. James’s car. From the bullet mark on Ms. James’s car, the police determined that the shots had likely been fired from the direction of the privacy fence. Starting with an opening in the fence near the garage, officers searched through the dense foliage on the other side of the fence. Using a weed trimmer and a metal detector, the police eventually recovered one spent shell casing and 19 live rounds on the ground nine and a half feet down the fence from the opening. The spent casing and live rounds were all marked “R-E-M.”
After obtaining a search warrant, the police conducted a search of the house behind the gas station at 1119 East 75th Street, where Appellant lived. From a closet, officers recovered a box of .22 caliber ammunition stamped “R-E-M,” which still contained 75 out of the 100 rounds that came with the box. Officers also recovered a sawed-off .22 caliber rifle from a bedroom dresser with a live .22 caliber round in the chamber with the “R-E-M” marking. Two other rifles and several boxes of various types of ammunition were also recovered from the house.
Ballistic tests determined that the expended casing recovered behind the fence had come from the sawed-off .22 caliber rifle. During the course of testing the rifle, the expert noted a problem with the magazine that caused the rifle to jam, requiring extra effort to manually remove jammed cartridges and reload.
Appellant was subsequently arrested and brought back to Kansas City on October 13, 2004. While in transport, Appellant asked the officers if they had spoken with his uncle and also said he was sorry several times.
After being taken to an interrogation room, Appellant signed a Miranda waiver form and gave a videotaped statement. Appellant told officers that, on the night of the shooting, he had been drinking whiskey, smoking marijuana, and taking ecstasy to celebrate his birthday with his cousin, his girlfriend, and her nephew. Appellant said that after the others left he decided to shoot a gun at the people at the gas station to scare them. Appellant stated that he got the sawed-off rifle from the bedroom dresser, went up to the wood fence, and shot over the top of it multiple times. He indicated that the gun jammed after each shot and that he did not bother to retrieve the spent shells or live bullets that he dropped on the ground. Appellant indicated that after the last shot he took the gun back to the house, put it back in the dresser, and then went to spend the night with his girlfriend. Appellant told the police that the next day he found out that someone had been struck and killed by one of his bullets when his brother called and asked if he knew anything about the shooting. Appellant stated that he then went to a hotel for a day and a half before calling his uncle in Joplin for advice. He claimed that his uncle told him to come and talk to him in Joplin and that he was going to need to turn himself in. The videotape of Appellant’s statement was admitted into evidence at trial.
In reviewing a challenge to the sufficiency of the evidence to support a finding of guilt beyond a reasonable doubt, we “view the evidence in the light most favorable to the verdict and give the state the benefit of all reasonable inferences.” State v. Langdon, 110 S.W.3d 807, 811-12 (Mo. banc 2003). “But, in so doing, courts will not supply missing evidence or give the state the benefit of unreasonable, speculative, or forced inferences.” Id.
Viewing the evidence in accordance with this standard of review, there is simply no evidence that Appellant even knew of Mr. Johnson’s presence, much less evidence proving beyond a reasonable doubt that Appellant knowingly caused the death of Mr. Johnson after deliberation upon the matter. The State failed to present any forensic evidence establishing where the shots were fired from. The opening in the fence was approximately nine and one-half feet from where the live rounds and spent casing were found. There was no evidence whatsoever that the shots were fired from the opening in the fence.
Nevertheless, the majority reasons that “[i]t would have been impossible, from a perch above the lot, for the defendant, who is five feet seven inches tall, to fire one-handed over a six-foot fence and, with two shots, interrupted by un-jamming and reloading, hit the side of a car and then the side of a man’s head from less than thirty feet away, the bullets striking within six feet of each other.” Maj. Op. at 703. While the majority asserts that this was the State’s theory at trial, nowhere in the record does the State argue that the proximity of the bullets to each other established that it was impossible for the shot to have come from over the fence in the manner described by the Appellant. There is certainly no evidentiary support in the record for such a conclusion, and in fact, it is inconsistent with common sense and understanding. A person who is five feet seven inches tall can easily raise their hand or hands above a six-foot tall fence and fire a gun over it. Moreover, it is not at all unlikely that two shots from the same location, shot over a fence in the same way, might land within six feet of each other. So, the majority’s reasoning is specious at best.
And that specious rationale is the basis upon which the majority finds that the jury could have determined, beyond a reasonable doubt, “that the two shots in question were fired from the opening between the fence and bushes into a well-lit area where there were cars and people afoot and that the shooter went behind the fence after each shot to deal with the jammed weapon.” Maj. Op. at 703. While a jury, as the trier of fact, may disbelieve one version of facts and believe another, State v. Brown, 924 S.W.2d 3, 5 (Mo.App. E.D.1996), “Speculation cannot serve as the basis for a jury verdict,” O’Brien v. Mansfield, 941 S.W.2d 582, 589 (Mo.App. W.D.1997), and “it is ... the court’s function to assure that the jury, in finding the facts, does not do so based on sheer speculation.” State v. Grim, 854 S.W.2d 403, 414 (Mo. banc 1993).
There is no evidentiary support in the record for the proposition that the shots were fired from the opening in the fence. The pictures of the opening in the fence, relied upon by the State and the majority, are not evidence that the gun was fired from that opening. Without testimonial evidence that the trajectory of the bullets came from the opening, that casings were found at that location, or something more, the pictures prove nothing and cannot support an inference that the shots were fired from the opening. Thus, as noted at the outset, there is no evidence that Appellant even knew of Mr. Johnson’s presence, and the majority’s contentions are nothing more than sheer speculation.
Since the State failed to prove, either by direct evidence or inference, that Appellant knew Mr. Johnson was there, it obviously failed to prove beyond a reasonable doubt that Appellant “knew or was aware his conduct was practically certain to cause [Mr. Johnson’s] death” as required by the verdict director for first degree murder. Logically, this conclusion precludes a finding of deliberation as well.
While this should end the discussion, for the sake of thoroughness, I will address the majority’s theories regarding deliberation. The only way the majority even reaches the issue of deliberation is by continuing to rely on its “inference” that Appellant was shooting through the opening. As explained above, that inference is nothing more than unfounded speculation. Nevertheless, for the sake of argument, assuming that one reaches the issue of deliberation, the State most certainly failed to prove beyond a reasonable doubt that Appellant deliberated.
“Murder in the first degree requires proof of deliberation.” State v. Greer, 159 S.W.3d 451, 456 (Mo.App. E.D.2005). “The requirement of proof of deliberation sets first degree murder apart from all other forms of homicide.” State v. Strong, 142 S.W.3d 702, 717 (Mo. banc 2004) (internal quotation omitted). While deliberation can be established through cool reflection for any length of time, it is necessary that the evidence show that the defendant considered taking another’s life in a deliberate state of mind. State v. Miller, 220 S.W.3d 862, 868 (Mo.App. W.D.2007). “Absent evidence of deliberation, an intentional killing is second degree murder.” Strong, 142 S.W.3d at 717. “Deliberation may be inferred, but it must still be proved beyond a reasonable doubt.” Id.
Based upon the fact that it took time for Appellant to clear the jam and reload the gun after firing the shot that struck Ms. James’s car, the majority draws upon its inference that Appellant returned to the opening in the fence to get a clear view of the parking lot and had a clear view of Mr. Johnson and concludes that a jury could determine beyond a reasonable doubt that Appellant coolly reflected upon killing Mr. Johnson. The majority reaches this conclusion notwithstanding the fact that Mr. Johnson arrived at the scene thirty seconds after the shot that struck Ms. James’s car, got out of his car, and was shot before he could take a second step. The inferences relied upon by the majority are simply far too attenuated to support a finding of deliberation beyond a reasonable doubt.
The majority first asserts that the fact that Appellant fired five or six shots, stopping to unjam the weapon between shots, “was more than sufficient to establish deliberation.” Maj. Op. at 704. The majority reasons that Mr. Johnson “was not hit with the first shot; the [Appellant] had more than sufficient opportunity to terminate the attack after he fired the first shot but before he fired the bullet that killed Johnson.” Maj. Op. at 704. The first problem with this analysis is that Mr. Johnson didn’t arrive until thirty seconds after the first shot was fired, and he was killed instantly after exiting his vehicle. There was no extended attack; Mr. Johnson was killed immediately upon his arrival. Since there was no continuing attack, there could be no opportunity to terminate the attack from which deliberation could be inferred. While State v. Cole, 71 S.W.3d 163, 169 (Mo. banc 2002), the case on which the majority relies, does state that “[djeliberation requires only a brief moment of ‘cool reflection’ and may be inferred from the fact that a defendant had the opportunity to terminate an attack after it began,” it refers to an on-going assault. In that case, the defendant broke into his ex-wife’s home and was confronted by Anthony Curtis, who was visiting defendant’s ex-wife. Id. at 168. The defendant stabbed Mr. Curtis multiple times culminating in Mr. Curtis’s death. Defendant then “assaulted Terri [his ex-wife], stabbing her repeatedly in the stomach, breasts, back, and arms, and her hands when she attempted to defend herself. Terri survived.” Id. at 168. In the case sub judice, there was no ongoing attack; Mr. Johnson was killed immediately upon his arrival.
Next, the majority theorizes that deliberation was proven beyond a reasonable doubt because Appellant likely heard Ms. James screaming right after Mr. Johnson was shot and Appellant “left the scene immediately, took the rifle back to his house, went to a girlfriend’s house, to a hotel, and then out-of-town.” May. Op. at 704. There are several problems with this hypothesis. Even if we infer that Appellant heard the screams and that he left immediately, those facts do not provide evidence of cool reflection beyond a reasonable doubt. There must be something about the nature of the flight or the defendant’s other actions after a killing that allows for the inference of cool reflection as opposed to mere consciousness of guilt of some type of serious assault or killing. See State v. Franco-Amador, 83 S.W.3d 555, 558-59 (Mo.App. W.D.2002) (“Flight does not establish a defendant’s guilty knowledge of a particular crime in comparison to other possible charges and is alone insufficient to support a conviction.”).
Here, after Ms. James screamed, Appellant left the scene, leaving behind live rounds and spent shells, went home, walked through the house, and put the gun in a drawer. He then went to his girlfriend’s house for the evening. The following day, after being told that he had killed someone, Appellant went to a hotel for a while and later went to Joplin, Missouri, where he was arrested. Nothing about this behavior would allow a reasonable trier of fact to conclude, beyond a reasonable doubt, that Appellant fled because he had coolly reflected upon killing Mr. Johnson, as opposed to fleeing because he had shot Mr. Johnson knowing that his conduct was practically certain to cause his death (murder in the second degree), or because he had recklessly caused the death of Mr. Johnson (involuntary manslaughter).
In short, the majority’s analysis is simply too attenuated, as it relies on unreasonable inferences, speculation, and conjecture. While the majority has constructed a possible way in which this crime may have occurred, the evidence does not reflect, beyond a reasonable doubt, that this was indeed what happened.
As noted at the outset, the events involved in this case are clearly tragic beyond measure. However, under the law, a criminal defendant may only be convicted of a crime that has been proven beyond a reasonable doubt. The evidence supported the conviction of Appellant for involuntary manslaughter, but, lacking sufficient evidence to establish beyond a reasonable doubt that Appellant deliberated or even that Appellant knew his actions were reasonably likely to cause the death of Mr. Johnson, he cannot properly be convicted of murder in the first or second degree. Accordingly, I would reverse Appellant’s conviction for first-degree murder and remand to the trial court for entry of a judgment of conviction for involuntary manslaughter and re-sentencing.
NEWTON, C.J. and DANDURAND, J. concur in the dissenting opinion of ELLIS, J.
. The State failed to offer any plausible reason at trial why Appellant, if he took his first shot at the opening, would have chosen to move more than nine feet down the fence, through dense vegetation, in the dark, to a place with less light to un-jam the rifle and reload it and then return to the opening in the fence.