Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of the City of St. Louis. Honorable
Plaintiff/Respondent: Chris Koster, Evan J. Buchheim,
Jefferson City, MO.
Defendant/Appellant: Timothy J. Forneris, St. Louis, MO.
B. SULLIVAN, J.
Clark (Appellant) appeals from the trial court's judgment
entered after a jury trial convicting him of assault in the
second degree, armed criminal action, and resisting arrest.
and Procedural Background
State charged Appellant, as a prior offender, with assault in
the first degree (Count I), armed criminal action (Count II),
attempted robbery (Count III), armed criminal action (Count
IV), unlawful use of a weapon (Count V), and resisting arrest
(Count VI). The evidence adduced at trial, viewed in the
light most favorable to the verdict, is as follows.
October 2011, Edward White (White) worked at a bar doing odd
jobs. At approximately 10 p.m. on October 1, 2011, White left
the bar and walked to a check cashing place about two blocks
away to get change for the bar. On his way there, White saw a
group of young men on the street that made him nervous. After
getting about $200 in change, White left the check cashing
place and crossed the street to avoid the group of men he had
crossed the street, Appellant started walking, and then
running, toward him. White was walking through a White Castle
parking lot when Appellant caught him and tried to push him
into a car. White resisted.
put a gun to White's head and told him to " up
it" which White believed meant to give Appellant the
money. Appellant put the gun to White's temple and pulled
the trigger but White " ducked real
quick" and the bullet missed him. White struggled with
Appellant and Appellant shot again, this time grazing the
back of White's head. Appellant fired a third shot, but
the gun jammed. Appellant then began hitting White in the
back of the head with the gun.
Aaron Quarles (Quarles) was driving in his patrol car when he
heard a gunshot at the White Castle approximately 100 feet
away. Quarles saw two people fighting and a muzzle flash,
then heard another gunshot. Quarles pulled into the lot and
saw Appellant beating White. When Quarles told Appellant to
stop, Appellant looked at him and ran away. Quarles pursued
Appellant in his vehicle, with the lights and siren
activated. Quarles saw the magazine fall out of the gun
Appellant was carrying and then saw Appellant throw the gun.
Once Appellant threw the gun, Quarles exited his vehicle and
pursued Appellant on foot. Quarles ordered Appellant to stop
but Appellant continued to run until Quarles drew his
firearm. Appellant then stopped and put his hands up. When
Quarles holstered his weapon, Appellant turned toward Quarles
and assumed a " fighting stance." Quarles took out
his baton and, while attempting to strike Appellant's
arm, hit Appellant in the head as Appellant bent over.
Appellant then complied with Quarles' orders and was
placed under arrest.
the altercation, White returned to the bar where someone
called the police. White received stitches for lacerations on
the side of his head and over his right eye.
jury found Appellant guilty of the lesser-included offense of
second-degree assault (Count I), armed criminal action (Count
II), unlawful use of a weapon (Count V), and resisting arrest
(Count VI). The trial court sentenced Appellant to seven
years for second-degree assault, three years for armed
criminal action, and four years each for unlawful use of a
weapon and resisting arrest. The court ordered the sentences
to run concurrently except the three-year sentence for armed
criminal action, which was ordered to run consecutively to
the assault charge, for a total sentence of ten years.
Following sentencing, the trial court vacated the conviction
for unlawful use of a weapon by agreement of the parties.
This appeal follows.
first point, Appellant argues the trial court abused its
discretion in failing to grant a mistrial because the jury
panel saw Appellant in restraints, without good cause, which
made Appellant appear to be dangerous and destroyed the
presumption of innocence to which he was entitled.
second point, Appellant contends the trial court abused its
discretion in limiting Appellant's defense by allowing
the State to redact pages of White's medical records
admitted into evidence which contained the results of blood
tests performed on White because the positive alcohol and
cocaine blood test results were relevant and admissible
evidence and corroborated Appellant's defense that White
was intoxicated and attacked Appellant.
third point, Appellant asserts the trial court abused its
discretion in submitting Jury Instruction 6 for assault in
the second degree, in that Appellant was not assured a
unanimous verdict because the submitted instruction did not
specify the " assault" charged and did not ensure
the jury would unanimously convict Appellant of the same
conduct, in that it was a disputed fact at trial whether
Appellant shot at or struck White.