Case Law Update: 2011-2014 Cumulative Edition

Facts: Defendant was charged with resisting his own arrest. When police sought to arrest him, he used “passive” resistance by locking up his body. The jury instruction stated that the jury should convict if “the defendant resisted by using physical force or physical interference.”

Holding: (1) The jury instruction deviated from the charging statute, Sec. 575.150.1. That statute creates two distinct crimes – resisting one’s own arrest and interfering with another’s arrest. Sec. 575.150.1(1) provides that resisting one’s own arrest is accomplished by “using or threatening the use of violence or physical force or by fleeing.” Sec. 575.150.1(2) provides that resisting arrest of another can be accomplished by “physical force or physical interference.” By omitting “physical interference” from 575.150.1(1), the legislature intended to exclude that as an element of resisting one’s own arrest. Thus, the jury instruction allowed the jury to convict based on an element that was not in the statute, thereby misdirecting the jury as to the applicable law and excusing the State from its burden of proof. New trial ordered on resisting arrest. (2) The court found that Defendant was a “persistent offender” under Sec. 558.016.3, and sentenced him to an extended term. However, this was plainly erroneous since there was only evidence of one prior conviction, making Defendant only a prior offender under Sec. 558.016.2.
State v. Hunt, 2014 WL 298631 (Mo. App. E.D. Jan. 28, 2014):

Where Defendant-Police Officer was convicted of first degree burglary and second degree property damage for unlawfully entering a trailer and damaging property during an arrest, jury instructions were plainly erroneous in failing to define what constitutes “unlawful entry” in the context of a police officer making an arrest.

Facts: Defendant-Police Officer was one of several Officers at a trailer where a person for whom an arrest warrant had been issued might be staying. The trailer was not owned by the person who was wanted for arrest. Defendant-Police Officer went up to trailer, kicked in the front door to the porch, then took a knife and pried open the door to the trailer. Defendant-Police Officer then went in trailer, assaulted person who was to be arrested, and arrested him. As relevant here, Defendant-Police Officer was convicted of first degree burglary and second degree property damage for his entry into the trailer.

Holding: In general, Defendant had legal authority to arrest the wanted person, and per Sec. 544.200, Defendant, in general, also had authority to break open any outer or inner door or window to effect the arrest. The issue here, however, is not Defendant’s “general” authority, but the specific circumstances of this particular case. Here, the State made a submissible case for first degree burglary because the evidence viewed in the light most favorable to the verdict showed that the trailer did not belong to the person who was to be arrested, and Defendant did not have a reasonable belief that the person was inside the trailer. Although the State made a submissible case, however, the jury instruction on first degree burglary was plainly erroneous because it failed to define “entered unlawfully” in the context of effecting an arrest. The court should have explained when a law enforcement officer might be privileged or justified in entering a residence to effect an arrest. Absent specific guidance about the law governing law enforcement officers’ actions in entering a private residence, the jury may not have accurately understood whether Defendant’s entry into the trailer was lawful. Notes on Use of MAI 323-52 Burglary in the First Degree provide that the term “enter unlawfully” may be defined by the court. For similar reasons, the second degree property damage instruction was plainly erroneous because the charge of property damage was also depending on whether Defendant “entered unlawfully” or was justified in entering. The jury instruction on property damage should define “enter unlawfully” as it pertains to the charge of property damage and should include any possible defenses of justification in its definition. New trial ordered on burglary and property damage.
State v. Mangum, 390 S.W.3d 853 (Mo. App. E.D. 2013):

(1) Defendant can claim plain error in self-defense instructions where there was no evidence in the record that the defense submitted the instructions; (2) where the evidence viewed in the light favorable to the defense showed that multiple assailants attacked Defendant, it was plain error for self-defense jury instructions to instruct jury that they could acquit only if Defendant reasonably believed he needed to use force against a particular named person; (3) even though one of the assailants was only slapping and hitting Defendant and deadly force is not justified absent threat of death or serious physical injury, where Defendant was attacked by multiple people – some of whom were threatening serious bodily harm -- the acts of one attacker become the acts of another so Defendant can use deadly force against the common threat (all the assailants).

Facts: Viewed in the light most favorable to the defense, the evidence showed that Defendant was attacked by two assailants. He ultimately shot one of them. The jury instructions on self-defense instructed jurors that they could acquit Defendant only if he reasonably believed he needed to use force against one of the particular named assailants to protect himself.

Holding: (1) An appellant waives plain error review of an instruction that he himself submitted, even if the instruction is erroneous. Here, however, nothing in the record shows that Defendant submitted the self-defense instructions at issue; therefore, there is no waiver of plain error review. (2) MAI-CR3d 306.06, Note on Use 7, specifically provides for modification of the self-defense instruction to provide for multiple assailants. Here, however, the jury could find self-defense only if the jury believed that Defendant was protecting himself from a particular named assailant. The State argues that because Defendant did not face death or serious physical injury from the other assailant, who was only hitting and slapping him, he was not justified in using deadly force against her; therefore, no self-defense instruction about her was necessary. However, where a defendant is being attacked by multiple assailants, the act of one becomes the act of another. If two assailants are acting in concert to attack a defendant, the victim is entitled to an instruction hypothesizing multiple assailants. “We hold that a multiple assailant self-defense instruction is warranted even when the person the defendant assaulted never posed a direct threat of bodily harm to the defendant, as long as there is evidence that the person the defendant assaulted acted in concert with the assailant …. [W]hen two or more persons undertake overt action to harm another, the victim may use an appropriate amount of force to defend himself against either aggressor, or both of them.” The Defendant was entitled to a self-defense instruction against all the assailants, not just the one against whom Defendant acted.
State v. Latrail, No. ED96491 (Mo. App. E.D. 5/15/12):

Holding: Trial court erred in violation of Notes on Use for MAI-CR3d 304.04 in giving jury instruction with phrase “acted together with or aided” rather than the phrase “aided or encouraged” as required by the Notes on Use, but the error was not so prejudicial so as to deprive Defendant of a fair trial under facts of this case.
State v. Smith, No. ED96865 (Mo. App. E.D. 5/5/12):

(1) Convictions for both aggravated stalking, Sec. 565.225.2, and violation of a protective order, Sec. 455.085.2, violated double jeopardy; and (2) jury instruction which allowed conviction for violation of protective order by “disturbing the peace of victim by showing up at her home” was plain error because this was not one of the enumerated ways to commit the offense set out in MAI-CR3d 332.52.

Facts: Defendant was convicted of various counts of aggravated stalking, 565.225.2, and violation of a protective order, Sec. 455.085.2, based on the same conduct.

Holding: (1) Defendant argues that it constituted double jeopardy to convict of both aggravated stalking and violation of a protective order. Sec. 556.041 provides that a person may not be convicted of more than one offense if one offense is included in the other. Sec. 556.046 provides that an offense is included when it is established by proof of the same or less than all the facts required to establish commission of the offense charged. An offense is a lesser included offense if it is impossible to commit the greater without committing the lesser. Sec. 565.225.2 provides that a person commits aggravated stalking if through his course of conduct he harasses or follows with the intent of harassing another person and at least one of the acts constituting the course of conduct is in violation of an order of protection of which he has notice. Sec. 455.085.2 states that a person commits the offense of violating an order of protection where he commits an act of abuse in violation of such an order. The offense of violation of a protective order is included in the offense of aggravated stalking because proof of the same conduct is required for both convictions. It is impossible to commit aggravated stalking without violating the order of protection. Thus, the trial court plainly erred in accepting verdicts for both offenses, and the convictions for violating the order of protection are vacated. (2) MAI-CR3d 332.52 provides that a person commits the offense of violation of an order of protection if they violate the order by stalking, abusing victim in certain ways, entering the premises of victim, or initiating communication with victim. The jury instruction here submitted the offense of violating the order of protection by “disturbing the peace of [victim] by showing up at her home.” This is not one of the enumerated ways to commit the offense and this conduct was not even charged. It was plain error to give this instruction.
State ex rel. Koster v. Fulton, No. ED96413 (Mo. App. E.D. 3/29/11):

Holding: Associate Circuit Judge lacks power to order any party (here the Attorney General) to pay for a court reporter for a trial; Sec. 478.072 authorizes electronic recording of the trial but does not authorize judge to order Attorney General to hire a court reporter for it; appellate court notes that nothing would prevent the court reporters for the circuit judges from serving since they are state employees and don’t work for individual circuit judges.
State v. Muhammad, No. ED94232 (Mo. App. E.D. 3/1/11):

(1) Even though Defendant was charged with false imprisonment, where court erroneously instructed on felonious restraint but then entered judgment for false imprisonment, this was not plain error since false imprisonment was a lesser-included offense of felonious restraint; but (2) where court sentenced Defendant to range for a Class D felony, this was plain error because false imprisonment, as found, was a Class A misdemeanor.

Facts: Defendant was charged with false imprisonment. At trial, however, the court without objection instructed the jury on the offense of felonious restraint. The court then entered judgment for false imprisonment as a Class D felony and sentenced Defendant to four years.

Holding: (1) A trial court cannot instruct on an offense not charged unless it is a lesser-included offense. Felonious restraint is not a lesser-included offense of false imprisonment; rather the opposite is true – false imprisonment is a lesser offense of felonious restraint. However, the variance between the charge and instructions is not fatal here. By finding the greater offense of felonious restraint, the jury necessarily found the lesser of false imprisonment. Moreover, the trial court entered judgment for false imprisonment. (2) However, the four year sentence is plain error. This is because false imprisonment is a Class A misdemeanor unless the defendant took the victim from the state, which is not the case here, Sec. 565.130.2. The sentence should not have exceeded one year. Sentence vacated and remanded for resentencing.

State v. Halford, 2014 WL 2583681 (Mo. App. S.D. June 10, 2014):

Even though Defendant grabbed Victim by throat and left a red mark, where Victim testified that Defendant’s actions were a “stop kind of thing,” she could breathe, and she was more “mad than scared,” trial court erred in trial for second-degree domestic assault in failing to give lesser-included offense instruction on third-degree domestic assault, because the evidence supported a finding that Defendant did not intend to cause physical injury (necessary for second-degree domestic assault), but only intended to cause physical contact which the victim would find offensive (which constitutes third-degree domestic assault).

Facts: Defendant and Victim lived together. On the day of the offense, Defendant and Victim were arguing. Defendant grabbed Victim’s throat until she was red in the face. Victim testified, however, that she could still breathe. Victim testified that the throat grabbing was a “stop kind of thing,” and she was more “mad than scared.” Defendant was charged with second-degree domestic assault. At trial, he requested a lesser-included offense instruction for third-degree domestic assault, which the trial court overruled.

Holding: Second-degree domestic assault, Sec. 565.073, requires proof that Defendant attempted to cause or knowingly caused physical injury to Victim. Third-degree domestic assault, Sec. 565.074, requires proof only that Defendant intended to cause physical contact which the Victim would find offensive. A court is obligated to give a lesser-included offense instruction if there is a basis for acquitting of the greater offense and convicting of the lesser. The evidence is viewed in the light most favorable to the Defendant. Here, Victim’s testimony supported an inference that Defendant did not attempt to cause physical injury, but merely attempted to cause physical contact. Victim testified that Defendant was not trying to hurt her physically, but emotionally. Emotional pain and anger are associated with being offended. This would support a finding that Defendant attempted to cause offensive physical contact. The lesser-included offense instruction should have been given. Conviction reversed and new trial ordered.
State v. Rouse, No. SD32168 (Mo. App. S.D. 9/30/13):

Holding: Trial court erred under State v. Celis-Garcia, 344 S.W.3d 150 (Mo. banc 2011), in giving generic jury instruction in sex case where Victim testified to multiple sexual touchings, but jury instruction instructed jurors to find Defendant guilty if he knowingly placed his finger in the vagina, because this violated Defendant’s right to a unanimous jury verdict. However, error was harmless because the defense was not an act-specific defense, but was a general denial that any of the acts occurred.
State v. Arnold, 2013 WL 1319597 (Mo. App. S.D. April 2, 2013):

Jury instruction which omitted required definition of “identity theft” in prosecution for crime of trafficking in stolen identities, Sec. 570.224, was plainly erroneous where Defendant disputed at trial whether he knowingly possessed the means of identification.

Facts: As Officer approached car which Defendant was standing by, another man ran away. Officer saw in car two checkbooks, a driver’s license, a credit card and two social security cards – all belonging to different persons. Defendant owned the car. Defendant was charged with trafficking in stolen identifies, Sec. 570.224. Defendant denied knowing anything about the various materials found in his car. At trial, the verdict director stated that jury should convict if “defendant intended to sell or transfer such information for purposes of committing identity theft.” During deliberations, the jury asked for the statute defining identity theft, but the trial court responded that the jury must be guided by the instructions.

Holding: The crime of trafficking in stolen identities, Sec. 570.224.1, is committed when a defendant “manufactures, sells, transfers, purchases, or possesses, with intent to sell or transfer means of identification … for the purpose of committing identity theft.” “Identity theft,” Sec. 570.223.1, is a separate crime committed if a person “knowingly and with the intent to deceive or defraud obtains, possesses, transfers, uses or attempts to obtain, transfer or use or one more means of identification not lawfully issued for his or her use.” The crime of identity theft has different elements, including different knowledge and intent requirements, than the crime in trafficking in stolen identities. MAI-CR3d 324.41.1 provides a definition of “identity theft” that was omitted here. This was prejudicial because the required definition would have explained to the jury that Defendant had to knowingly possess the means of identification found in his car; that issue was disputed at trial; and the omission likely affected the jury’s verdict in light of their question. Without a definition, jurors were given a roving commission to convict based upon their own beliefs of how the crime of identity theft is committed.
State v. Roberts, 2014 WL 6476715 (Mo. App. W.D. Nov. 18, 2014):

In second-degree domestic assault case, Defendant was entitled to third-degree domestic assault instruction on basis that his mental state was “reckless” instead of “knowing” because it was impossible for Defendant to commit the greater offense without committing the lesser, and the jury was entitled to disbelieve any part of the State’s evidence that Defendant acted “knowingly.”

Facts: Defendant and Victim lived together, and got into a fight, with both hitting each other. A neighbor called police. Victim had marks on her head from the fight. Defendant was arrested and charged with second-degree domestic assault. Defendant sought a lesser-included instruction on third-degree domestic assault on grounds the jury could have found that he recklessly injured Victim in a case of imperfect self-defense. The trial court refused the instruction.

Holding: The distinction between the two instructions was that second-degree domestic assault requires a jury to determine if Defendant “knowingly” caused physical injury, while third-degree assault requires the jury to determine if Defendant “recklessly” caused physical injury. A person acts “knowingly” when he is aware his conduct is practically certain to cause a result. Sec. 562.016.3(2). A person acts “recklessly” when he consciously disregards a substantial and unjustifiable risk that a result will follow. Sec. 562.016.4. Under Sec. 556.046, to be entitled to a lesser instruction, a Defendant must (1) request the instruction; (2) show there is a basis in the evidence for acquitting of the charged offense; and (3) show there is a basis in the evidence for convicting the Defendant of the lesser offenses. Here, Defendant requested the instruction, and there was a basis for acquitting of the charged offense since a jury can always disbelieve the State’s evidence. The issue is where there is a basis to convict of the lesser. Defendant claims there is such a basis because the jury could have believed he recklessly caused physical injury, not knowingly did so. This is because the jury could have found he was acting in defense of himself when he punched Victim and yet also believed his conduct was too reckless to excuse as lawful self-defense. The State argues that there had to be affirmative evidence that Defendant acted recklessly. However, Defendant contends there is no need for affirmative evidence because third-degree domestic assault is a “nested” lesser-include offense of second-degree domestic assault. Where nested offenses are involved, it is impossible to commit the greater offense without necessarily committing the lesser. This is because any evidence that is sufficient to prove the elements of the charged (greater) offense must necessarily be sufficient to prove a crime that is composed of a subset of those elements, i.e., a “nested” lesser offense. Here, although knowingly and recklessly are different mental states, Sec. 562.021.4 provides that each culpable mental state is included in the higher mental states. Here, the jury could have disbelieved any part of the evidence that Defendant acted knowingly. Thus, instead of inferring that Defendant, in intentionally hitting Vicitm, was aware his conduct was practically certain to cause physical injury (knowingly), the jury could have inferred only that Defendant consciously disregarded a substantial and unjustifiable risk that his doing so would cause physical injury (recklessly). The Eastern District has reached a contrary result in State v. Randle, 2014 WL 4980347, at *1-2 (Mo. App. E.D. Oct. 7, 2014)(holding that lesser instruction is not required where the differential element between two offenses is “knowingly” vs. “recklessly”). But the Eastern District failed to consider the effect of Sec. 562.021.4’s provision that evidence establishing that a defendant acted knowingly also establishes that he acted recklessly. Conviction for second-degree domestic assault reversed. Also, because second-degree domestic assault was the underlying crime for Defendant also being convicted of victim tampering (for trying to convince Victim to say assault didn’t happen), that conviction is vacated.
State v. Nutt, 2014 WL 1202435 (Mo. App. W.D. March 25, 2014):

(1) Where Defendant was charged with first-degree assault for choking someone, he was entitled to a lesser-included offense instruction of assault-third because the evidence supported that he didn’t intend to cause serious physical injury, and (2) even though the jury was instructed as to second-degree assault and did not convict of that, Defendant was prejudiced because the second-degree instruction tested whether Defendant acted with sudden passion, not whether he didn’t intend to cause serious physical injury.

Facts: Defendant, a jail inmate, was charged with first-degree assault for attempting to cause serious physical injury by choking another inmate. The evidence showed that Defendant put his hands on victim’s neck, but also that victim did not claim that he could not breathe, and Defendant said he meant to touch victim’s shoulders, not neck. Although victim turned “red” and had marks on neck at time of incident, the marks were gone by the next day. At trial, Defendant sought an instruction for third-degree assault, which was refused. The court instructed on second-degree assault.

Holding: Third-degree assault is a lesser-included offense of first and second-degree assault. Defendant was charged under Sec. 565.050.1 for “attempting to cause serious physical injury.” The refused instruction for third-degree assault under Sec. 565.070.1(1) would have been for “attempting to cause physical injury.” The degree of physical injury is the difference between first-degree and third-degree assault. Here, the evidence viewed in the light most favorable to Defendant would have supported that Defendant did not intend to cause “serious” physical injury, but only physical injury. Therefore, the failure to give the third-degree assault instruction was error. The State claims that the error wasn’t prejudicial, however, because the jury didn’t find the lesser offense of second-degree assault, so would not have convicted of third-degree assault. However, the second-degree assault instruction did not test whether Defendant intended to cause “serious” injury, but tested whether the attempt to cause “serious” physical injury was done with sudden passion. The jury did not have before it the question of whether Defendant intended to cause only non-serious physical injury. Therefore, Defendant was prejudiced. New trial ordered.
State v. Payne, 2013 WL 6170605 (Mo. App. W.D. Nov. 26, 2013):