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State v. Tuttle

Court of Appeals of Missouri, Southern District, First Division

November 30, 2016

STATE OF MISSOURI, Plaintiff-Respondent,
JUSTIN DION TUTTLE, Defendant-Appellant.

         APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY Honorable Charles D. Curless, Special Judge



          JEFFREY W. BATES, P.J.

         Justin Tuttle (Defendant) was convicted after a jury trial of second-degree felony murder and armed criminal action (ACA). See §§ 565.021, 571.015.[1] 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.

         A 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.[2]

         Defendant 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 trial.

         On the 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.

         Victim 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.

         Victim, 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.

         Patrick 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.[3] 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."

         Defendant 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.

         A 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.

         Defendant testified on his own behalf. Defendant took responsibility for all the wounds on Victim's body, but claimed he acted in self-defense.

         The 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.

         Standard ...

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