Court of Appeals of Missouri, Eastern District, Fourth Division
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Appeal from the Circuit Court of St. Charles County. Honorable Daniel G. Pelikan.
For Plaintiff/Respondent: Shaun J. Mackelprang, Jefferson City, MO.
For Defendant/Appellant: Ellen H. Flottman, Woodrail Centre, Columbia, MO.
Sherri B. Sullivan, P.J. Patricia L. Cohen, J., and Kurt S. Odenwald, J., concur.
Sherri B. Sullivan, P.J.
Scott Marshall Davis, Jr. (Appellant) appeals from the trial court's judgment entered upon a jury verdict convicting him of first-degree assault, armed criminal action, and first-degree assault of a law enforcement officer. We affirm.
Factual and Procedural Background
Appellant does not contest the sufficiency of the evidence to support his conviction. The evidence, viewed in the light most favorable to the verdict, is as follows.
On April 17, 2012, Catherine Naber (Naber) drove Appellant and his stepbrother, Elijah Daniel (Daniel), to Appellant's father's home. On the way, Naber gave Appellant and Daniel some LSD that someone had given her at a party.
Later that evening, Appellant suddenly attacked Daniel and Naber tried to intervene. Appellant's father came out of a back bedroom and helped get Appellant off Daniel. After the attack, Naber went down the hall to the bathroom and called her husband. When Naber returned to the living room, they tried to calm Appellant down. Appellant had taken off his clothes, was making " random statements," and was holding a club with metal spikes. Appellant told Naber, " You're next," pinned her down on the couch, and hit her with the club. Naber managed to get the club away from Appellant and ran to the bathroom.
Naber eventually left the bathroom and called 911. While in the living room looking for her glasses and keys, Appellant became remorseful and helped her clean up. Appellant said something about his sister being raped and his cousin getting killed. Naber ran out of a side door, locked herself in her van, and called her husband and 911 again.
Officer Tom Kenyon (Kenyon) was dispatched to the home around 2:00 a.m. When Kenyon arrived, he saw a van backing out of the driveway and Appellant, naked, who appeared to be climbing through the driver's side window. Kenyon blocked the van with his patrol vehicle and got out. Appellant walked to the front of the van.
Kenyon tried to talk to Appellant, but Appellant was speaking " gibberish." Appellant had blood on his upper torso and arms and said his name was " Lucifer." Appellant charged Kenyon, who stepped to the side to avoid contact with Appellant. Kenyon drew his Taser and fired it at Appellant, hitting Appellant in the chest.
Appellant stated, " A Taser? That's all you f***in' got?"
Appellant charged Kenyon again and Kenyon attempted to tase him. Instead of hitting Appellant, Kenyon came into contact with the deployed wires and tased himself. Appellant grabbed Kenyon's wrist and drove the Taser into Kenyon's nose before Kenyon was able to throw the Taser into the street.
During the altercation, Appellant said he was going to " eat" Kenyon, and bit Kenyon on the left cheek and the right ear. Kenyon punched Appellant in the head and Appellant threatened to kill Kenyon. As the men struggled, Kenyon tripped and fell on his back and Appellant fell on top of him. Kenyon tried to stand up but Appellant hit, choked, and head-butted him. At one point, Kenyon felt Appellant's arm near his holster. Kenyon attempted to radio for help and Appellant bit Kenyon's elbow.
One witness testified to seeing Appellant on top of Kenyon, " pounding him in the face" and reaching for Kenyon's gun. Another witness testified she saw Appellant standing over Kenyon, swinging at him six or seven times, and that Kenyon seemed " defenseless."
Kenyon got to his knees but was " [v]ery light headed" and was having difficulty breathing. Kenyon secured the retention strap to his weapon and felt Appellant tugging on it. Appellant began choking Kenyon and Kenyon drew his weapon and fired. Appellant got off of Kenyon and Kenyon stood up, at which time Appellant charged Kenyon, Kenyon fired his weapon, and Appellant fell to the ground.
When additional officers arrived at the scene, they found Appellant sitting on the ground, covered in blood, rocking back and forth, and " speaking in tongues." Officers had to tase Appellant twice before they could subdue him and take him into custody. Appellant, who had been shot twice, was taken to the hospital for medical care. Kenyon was treated at the hospital and required surgery on his left shoulder. Kenyon lost some use of his left arm and was placed on light duty for seven or eight months. Naber was left with multiple scars and suffered a broken jaw, which required surgery and her jaw wired shut for seven weeks.
Appellant was interviewed twice at the hospital. Appellant admitted taking LSD, said he was confused about the events that night and that he had believed his sister had been raped by Daniel. Appellant stated he knew Kenyon was a police officer and that he charged the officer, tried to bite him, and tried to get shot by the officer. Evidence of Appellant's telephone calls made from jail was also admitted at trial. In those calls, Appellant stated Naber had not forced the LSD " down [his] throat" and that he had attacked Kenyon. Appellant's DNA was found on the Taser, the grip of the club, and Kenyon's firearm.
The State charged Appellant with first-degree assault (Count I), armed criminal action (Count II), and first-degree assault of a law enforcement officer (Count III). As to Count I, the trial court instructed the jury on the charged offense of assault in the first degree and on the lesser-included offense of assault in the second degree based on the theory that Appellant recklessly, instead of knowingly, caused serious physical injury to Naber. The court refused to submit Appellant's proffered instruction on the included offense of assault in the second degree based on Appellant's knowingly causing serious physical injury to Naber " under the influence of sudden passion arising out of adequate cause."
After deliberation, the jury found Appellant guilty of the charged offenses. Additional
evidence and argument were presented to the jury in the penalty phase of the trial. The jury recommended sentences of 10 years for first-degree assault, 5 years for armed criminal action, and 15 years for first-degree assault on a law enforcement officer.
On November 18, 2013, after hearing evidence and argument on Appellant's posttrial motion alleging he was entitled to a new trial based on newly discovered evidence, the trial court denied the motion.
The trial court sentenced Appellant to concurrent terms of 10 years for assault and 5 years for armed criminal action, and a consecutive term of 15 years for assault of a law enforcement officer, for a total of 25 years' imprisonment. This appeal follows. Appellant raises 10 points of error on appeal.
Point I - Lesser-Included Instruction
In his first point, Appellant argues the trial court erred in refusing his request for an instruction on second-degree assault based on sudden passion. We review the trial court's decision to give or refuse a requested instruction de novo. State v. Jackson, 433 S.W.3d 390, 395 (Mo. banc 2014).
The trial court is obligated to give an instruction on a lesser-included offense when (1) a party timely requests the instruction; (2) there is a basis in the evidence for acquitting the defendant of the charged offense; and (3) there is a basis in the evidence for convicting the defendant of the lesser-included offense for which the instruction is requested.
Jackson, 433 S.W.3d at 396; State v. Johnson, 284 S.W.3d 561, 575-76 (Mo. banc 2009). There is almost always a basis in the evidence for acquitting a defendant of the immediately greater offense because the jury has a right to disbelieve all, some, or none of the evidence presented in a particular case.
Jackson, 433 S.W.3d at 399.
" [T]he jury's right to disbelieve all or any part of the evidence, and its right to refuse to draw any needed inference, is a sufficient basis in the evidence to justify giving any lesser included offense instruction when the offenses are separated only by one differential element for which the state bears the burden of proof."
Jackson, 433 S.W.3d at 401. A " nested" lesser-included offense is one which is separated from the greater offense by one differential element for which the state bears the burden of proof. State v. Randle, No. SC 94646, 465 S.W.3d 477, 2015 WL 4627381 at *2 (Mo. banc Aug. 4, 2015). A " nested" lesser-included offense consists of a subset of the elements of the greater offense, therefore rendering it impossible to commit the greater offense without necessarily committing the lesser. Id. A defendant is entitled to a properly requested ...