Court of Appeals of Missouri, Western District, First Division
APPEAL FROM THE CIRCUIT COURT OF BUCHANAN COUNTY The Honorable Patrick K. Robb, Judge
Before: Thomas H. Newton, Presiding Judge, Lisa White Hardwick and Anthony Rex Gabbert, Judges
LISA WHITE HARDWICK, JUDGE
Brandon Roberts appeals from his convictions for second-degree domestic assault and victim tampering. He contends the circuit court erred in refusing his proposed instruction for the lesser included offense of third-degree domestic assault. He also asserts that the court erred in permitting the State to join his charges and abused its discretion in overruling his motion to sever.
We find that Roberts was entitled to have the jury instructed on the lesser included offense of third-degree domestic assault. Therefore, his second-degree domestic assault conviction is vacated. Because second-degree domestic assault was the underlying crime on his victim tampering conviction, we must also vacate the victim tampering conviction. The case is remanded to the circuit court for further proceedings.
Factual and Procedural History
In June 2012, A.A. and her three children were living with Roberts and his daughter. A.A. had a close relationship with Roberts's daughter and had raised her "like she was one of [her] own kids."
On June 3, 2012, A.A. and Roberts argued. They had not been getting along in the month prior to that date. A.A. was unemployed, and her unemployment was a point of contention between her and Roberts. A.A. had received some food stamps that day, so she asked Roberts if she could use his truck to go to the grocery store. Roberts was in the shower at the time and told her, "No." When A.A. told him she was going anyway, Roberts ripped down the shower curtain, and they began to fight.
Roberts got out of the shower and hit A.A. A.A. picked up the shower curtain rod and tried to hit him with it to defend herself. Roberts and A.A. were screaming at each other, and Roberts was hitting and punching A.A. in the back of her head. At one point, Roberts grabbed the shower curtain rod and hit A.A. with it.
The fight ended. A.A. left the bathroom, took Roberts's truck keys, and threw them out the back door. Roberts went outside to look for the keys. The children, who were in the house during the fight, were screaming and crying. They went outside to help Roberts look for the truck keys. Roberts did not find the keys. A.A. continued to yell and scream at Roberts, and she told him that she was calling the police.
Roberts went back inside the house. He and A.A. began fighting again and punching each other. Roberts had picked up a hammer in the backyard, but A.A. did not know whether he was still holding it when he came back inside the house. Roberts pinned A.A. against the washing machine. He continued to hit A.A. on the back of her head as she was lying across the top of the washing machine with her back to him. After Roberts hit A.A. a couple more times, he went to put on the rest of his clothes.
A.A. went out the front door to find the children. Roberts grabbed his daughter and left. A.A.'s children were at a neighbor's house. One of A.A.'s children, K.A., had run to the neighbor and told her, "Brandon's beating my mommy with a hammer." The neighbor described K.A. as "hysterical" and said that she was "crying" and "screaming." The neighbor called the police. Before Roberts left with his daughter, he had asked the neighbor to "give him a ride out of there." The neighbor declined, saying that she "didn't want to get in the middle of it." When A.A. came to the neighbor's house to retrieve her children, the neighbor noticed that A.A. had "a bunch of red marks on her neck and one of her arms." She also noticed that A.A. had a knot on the back of her head.
A.A. gave her statement to a police deputy and showed the deputy her injuries. The deputy observed red marks and small scratches on A.A.'s head, including a red mark in the middle of her forehead that was "slightly raised up, " like it had been inflicted recently. The deputy photographed A.A.'s injuries and the scene. Some of the photos showed an earring on top of the washing machine and a hammer on the ground in the back yard.
Later that day, A.A. spoke to Roberts on the telephone. They agreed to meet, and for the next several days, their relationship was "great." They stayed at motels so that they "could be together" and avoid the police, who were looking for him. They took their children to the zoo and spent time together. After about a week, they returned home. The police eventually arrested Roberts, and the State charged him with second-degree domestic assault.
After his arrest, Roberts spoke to A.A. by telephone several times. He told her to "get him out" and to say that "it didn't happen." On one occasion, they discussed having her say that she "got in a fight with a girl." Roberts also wrote A.A. several letters, and in one letter, he asked her to say that the incident "didn't happen."
During a phone conversation toward the end of June or beginning of July, Roberts told A.A. to "plead the Fifth." At one point, A.A. agreed to do that because she loved Roberts. She also agreed to lie or to make up a story because she wanted to "be with him and his daughter." From June to August, Roberts made 45 phone calls to A.A., all of which were recorded. Based on Roberts's communications with A.A., the State charged him with victim tampering.
Before trial, the State moved to join Roberts's charges. The circuit court granted the motion. After the court joined the charges, the State filed an amended information charging Roberts, as a persistent offender, with second-degree domestic assault, in violation of Section 565.073, RSMo 2000, and victim tampering, in violation of Section 575.270, RSMo Cum. Supp. 2013. Roberts later moved to sever the charges, but the court denied his motion.
A jury trial was held. Roberts's defense was that he acted in self-defense, and the court instructed the jury on self-defense. The court refused Roberts's proposed instruction on the lesser included offense of third-degree domestic assault.
The jury found Roberts guilty of both charges. The court sentenced Roberts to consecutive sentences of five years in prison for second-degree domestic assault and two years ...