Court of Appeals of Missouri, Southern District, Second Division
APPEAL FROM THE CIRCUIT COURT OF CHRISTIAN COUNTY. Honorable Mark E. Orr, Circuit Judge.
For Appellant: Shane P. Cantin and Erica Mynarich, Carver, Cantin & Grantham, Springfield, Missouri.
For Respondent: Chris Koster, Attorney General, and Richard Starnes, Assistant Attorney General, Jefferson City, Missouri.
NANCY STEFFEN RAHMEYER, J. -- dissents in separate opinion. DON E. BURRELL, J. -- concurs.
GARY W. LYNCH, J.
A jury found appellant William E. Copher (" Defendant" ) guilty of the offense of domestic assault in the third degree, in violation of section 565.074, for events that occurred in January 2012. The trial court enhanced the offense from a misdemeanor, see section 565.074.2, to a felony, see section 565.074.3, and sentenced Defendant accordingly. In his sole point on appeal, Defendant asserts that the trial court misapplied section 565.074.3 to enhance the offense because it " applies only to out-of-state priors[,]" and one of the required two prior offenses the trial court relied upon for enhancement was " not an out-of-state prior."
The prior offense in question arose in 2001 when Defendant pleaded guilty to the offense of assault in the third degree, in violation of section 565.070, RSMo 2000,
in that on or about the 12th day of August, 2001, in the County of Greene, State of Missouri, [Defendant] recklessly created a grave risk of serious physical injury to [the victim] by beating her in the head with his fists and kicking her in the ribs and [the victim] was a family or household member in that [the victim] and [Defendant] have a child in common.
Section 565.074, creating the crime of domestic assault in the third degree, was first enacted in 2000 and was amended once in 2011. Subsection 3, with the language added by the 2011 amendment italicized, provides:
A person who has pleaded guilty to or been found guilty of the crime of domestic assault in the third degree more than two times against any family or household member as defined in section 455.010, or of any offense committed in violation of any county or municipal ordinance in any state, any state law, any federal law, or any military law which, if committed in this state, would be a violation of this section, is guilty of a class D felony for the third or any subsequent commission of the crime of domestic assault. The offenses described in this subsection may be against the same family or household member or against different family or household members.
Section 565.074.3 (emphasis added).
Subsection 565.074.3, therefore, provides two methods for qualifying a prior offense for enhancement purposes: first, since originally enacted in 2000, a prior offense for " the crime of domestic assault in the third degree" may be used to enhance the current offense or, second, since amended in 2011, " any offense committed in violation of any county or municipal ordinance in any state, any state law, any federal law, or any military law which, if committed in this state, would be a violation of this section," may be used to enhance the current offense. The parties and the trial court agreed, as do we, that Defendant's 2001 prior offense for assault does not satisfy the first method because it is not for " the crime of domestic ...