Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF JASPER COUNTY Honorable Charles D.
Curless, Special Judge
JEFFREY W. BATES, P.J.
Tuttle (Defendant) was convicted after a jury trial of
second-degree felony murder and armed criminal action (ACA).
See §§ 565.021, 571.015. Defendant's
single point on appeal contends the trial court plainly erred
in submitting an instruction for second-degree felony murder
based on second-degree assault because such submission was
prohibited by the "merger doctrine." Finding no
merit to this contention, we affirm.
second amended information charged Defendant with
first-degree murder and ACA for assaulting and killing Daniel
Martin, Jr. (Victim). See §§ 565.020,
571.015. The information also gave notice that the State
would submit "murder in the second degree felony under
Section 565.021.1(2), " based on the death of Victim
"as a result of the perpetration of the class C felony
of assault in the second degree under Section
565.060.1(2)[.]" After Defendant was found guilty of the
felony-murder charge and ACA, he was sentenced to consecutive
terms of life imprisonment for second-degree felony murder
and 15 years for ACA.
does not challenge the sufficiency of the evidence to support
his convictions. "This Court reviews the evidence in the
light most favorable to the jury's verdict."
State v. Celis-Garcia, 344 S.W.3d 150, 152 (Mo. banc
2011). So viewed, the following evidence was adduced at
morning of September 26, 2013, Victim and his girlfriend,
Annmarie Patrick (Patrick), were looking to "get some
meth." Victim and Patrick were driving in Victim's
pickup truck when they saw Defendant and Daniel Compton
(Compton) walking down the road. Victim and Defendant knew
each other. Victim and Defendant had gone to school together
and had been "getting high" together for 10 years.
Patrick and Defendant had previously had sex, but Victim was
not aware that had happened.
asked Defendant "if he could find any meth."
Defendant said he "might be able to." Victim drove
Defendant and Compton to a house and dropped them off. Victim
and Patrick then went to find some money. After obtaining
$50, Victim and Patrick met Defendant and Compton. The plan
was for Compton to get the methamphetamine and then meet
Victim, Defendant and Patrick later at Jones Trading Post
Road, which was near a local swimming hole.
Defendant and Patrick went to Jones Trading Post and swam for
10 to 15 minutes. Patrick went to the truck to change her
clothes. Defendant came up to the truck and told Patrick,
"something's going to happen, but don't freak
out." Defendant went back to where Victim was.
was digging through her stuff to find some clothes when she
heard someone yell. Patrick turned around and saw Victim
holding his head. Victim and Defendant started fighting and
wrestling, and they eventually rolled into the
water. Defendant "pulled [his] knife"
and stabbed Victim. Victim screamed for Patrick to get help.
Patrick jumped in the water to try to pull Victim out from
underneath Defendant, but Victim "was already dead by
the time [she] got in the water." Defendant told Patrick
to give him a big rock, which she did. Defendant "put it
underneath [Victim's] shirt and sunk him right there in
four foot of water."
and Patrick got into Victim's truck and left. Defendant
told Compton that he and Victim "got into it[, ]"
Defendant "knocked a couple of holes in [Victim]"
and Victim ran off. Defendant and Patrick told friends that
Victim had "run off to Nixa with some girl."
Victim's body was found three days later floating in the
lake near Jones Trading Post Road.
forensic pathologist conducted Victim's autopsy and
observed various injuries. Victim had defensive wounds on his
hands. Victim had a laceration on the back of his head about
"three fourths of an inch long" and "a half
inch deep." The laceration was the result of blunt force
trauma. Victim also had several incised wounds "as a
result of sharp force injury." Victim had incised wounds
on his upper right back, the middle of his back, his left
cheek, above his left collarbone, the right side of his
chest, the left side of his chest and below the breastbone.
These wounds were consistent with being stabbed by a knife or
other sharp instrument. The wound on the left side of
Victim's chest was lethal because "it went between
the ribs" and the "left lung was cut." The
wound below the breastbone was "potentially lethal,
because it went in and hit the liver and caused - would have
caused bleeding from there." The cause of death was
determined to be "[i]nsufficient oxygen going to the
brain as a result of decreased oxygen in the blood, because
of the injury to the lung[.]" The manner of death was
determined to be homicide.
testified on his own behalf. Defendant took responsibility
for all the wounds on Victim's body, but claimed he acted
jury instructions submitted by the State included Instruction
No. 10, the verdict director for second-degree murder as a
result of perpetration of second-degree assault, and
Instruction No. 11, hypothesizing second-degree assault. At
the instruction conference, the trial court asked defense
counsel if she had an objection to any of the instructions
submitted by the State, and counsel responded, "No, Your
Honor." Both instructions were read to the jury. In
Defendant's motion for new trial, he did not raise a
claim of instructional error. This appeal followed.