Court of Appeals of Missouri, Eastern District, Third Division
Appeal from the Circuit Court of the City of St. Louis. Honorable Robin Ransom Vannoy.
FOR APPELLANT: Kathryn B. Parish, Sindel, Sindel & Noble, P.C., Clayton, Missouri.
FOR RESPONDENT: Chris Koster, Attorney General, Shaun Mackelprang, Assistant Attorney General, Jefferson City, Missouri.
Before: Kurt S. Odenwald, P.J., Robert G. Dowd, Jr., J., and Gary M. Gaertner, Jr., J.
Appellant James Kuehnlein (" Kuehnlein" ) appeals from the judgment of the trial court entered upon a jury verdict finding him guilty of one count of second-degree domestic assault in violation of Section 565.073 and one count of third-degree domestic assault in violation of Section 565.074. Kuehnlein was sentenced to a total of five years of imprisonment with execution of the sentence suspended for three years. In his first five points on appeal, Kuehnlein alleges the trial court violated his Sixth Amendment rights under the Confrontation Clause by limiting certain cross-examination and argument, and excluding evidence at trial. In his sixth point on appeal, Kuehnlein argues that the trial court erred when it refused to instruct the jury on third-degree domestic assault as a lesser included offense of the charge of second-degree domestic assault based on choking. We affirm in part and reverse and remand in part.
First, we find that the trial court did not err when it limited Kuehnlein's cross-examination of witnesses and argument, and excluded certain evidence at trial. An extended opinion addressing these points on appeal would have no precedential value. We have, however, provided the parties with a memorandum setting forth the reasons for our decision. The trial court judgment entered upon the jury's verdict finding Kuehnlein guilty of one count of third-degree domestic assault is affirmed pursuant to Rule 30.25(b).
Second, because the record contains evidence that would provide a basis for acquitting Kuehnlein of second-degree domestic assault and convicting him of third-degree domestic assault, the trial court erred in not instructing the jury on third-degree
domestic assault. Accordingly, we reverse the trial court's judgment entered on the charge of second-degree domestic assault and remand for a new trial.
Factual and Procedural Background
Kuehnlein and Victim began dating in March 2011. Kuehnlein was employed as a police officer in Velda City. Victim was employed as a server at Vin de Set restaurant. On November 5, 2011, Victim finished her shift at Vin de Set at about 10:30 p.m. After completing her shift, Victim stayed at Vin de Set to celebrate a coworker's last day at the restaurant. During this time Victim drank one beer and one shot. Victim later called Kuehnlein to let him know that she was finished with her shift ...