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State v. Brown

Supreme Court of Missouri, En Banc

July 11, 2017

STATE OF MISSOURI, Respondent,
v.
LONNIE L. BROWN, Appellant.

         APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY The Honorable Colleen Dolan, Judge

          PATRICIA BRECKENRIDGE, JUDGE

         Lonnie Brown appeals from a judgment convicting him of one count of assault in the first degree, section 565.050, [1] and one count of armed criminal action, section 571.015. The trial court sentenced Mr. Brown to concurrent terms of 15 years imprisonment on each count. In addition to first degree assault and armed criminal action, the trial court instructed the jury on the lesser included offense of second degree assault, section 565.060.[2] Mr. Brown asserts the trial court committed reversible error by refusing his timely and properly proffered instruction on an additional lesser included offense, assault in the third degree, section 565.070. Mr. Brown also claims the trial court erred by overruling his request for a mistrial after a witness volunteered that Mr. Brown was previously incarcerated and by refusing his offer of proof regarding a witness's juvenile and municipal arrest records. Because the trial court committed instructional error in failing to instruct the jury on the lesser included offense of third degree assault as requested by Mr. Brown and that error was prejudicial, Mr. Brown's conviction for first degree assault and the corresponding armed criminal action conviction are reversed. The cause is remanded.

         Factual and Procedural Background

         On August 6, 2012, Mr. Brown went to Dylan Whitehead's apartment, knocked on the door, and requested that Mr. Whitehead step outside. Mr. Whitehead recognized Mr. Brown, who was a former neighbor, and followed him down a flight of stairs while Mr. Brown spoke on a cellular telephone. While walking down the stairs, Mr. Brown pulled a gun out of his pants. As they reached an exterior door, Mr. Whitehead heard Mr. Brown tell the person on the phone, "I want you to hear this." Mr. Brown then turned, pointed the gun at Mr. Whitehead, and fired.

         Mr. Whitehead stumbled and fell as he ran back into the apartment building, believing he had been shot. He had a hole in his shirt and a graze on his back. A medical examiner later testified Mr. Whitehead was injured when he fell against the door, which had been cut into by the bullet. Mr. Whitehead viewed a photo lineup and identified Mr. Brown as the shooter. He also identified a truck registered to Mr. Brown as being parked at the scene. The state charged Mr. Brown, as a persistent offender, with assault in the first degree and armed criminal action.

         The trial court instructed the jury on first degree assault, the lesser included offense of second degree assault, and armed criminal action. Consistent with section 565.050.1, the first degree assault instruction asked the jury to determine whether Mr. Brown "attempted to kill or cause serious physical injury to Dylan Whitehead by shooting at him." Consistent with section 565.060.1(2), the second degree assault instruction asked the jury to determine whether Mr. Brown "attempted to cause physical injury to Dylan Whitehead by means of a deadly weapon by shooting at him." Both instructions provided a person "attempts" to cause a certain result when they act "with the purpose" of causing that result.

         The trial court refused Mr. Brown's timely and properly proffered instruction for third degree assault. Consistent with section 565.070.1(4), Mr. Brown's third degree assault instruction would have required the jury to determine whether Mr. Brown "recklessly created a grave risk of death or serious physical injury to Dylan Whitehead by shooting at him." The jury convicted Mr. Brown of first degree assault and armed criminal action. The trial court sentenced Mr. Brown on each offense to a term of 15 years imprisonment and ordered the sentences to be served concurrently.

         Mr. Brown appealed. This Court granted transfer following an opinion by the court of appeals. Mo. Const. art. V, sec. 10.

         Error in Refusing to Instruct on Third Degree Assault

         Mr. Brown asserts the trial court committed reversible error by refusing his timely and properly proffered instruction on the lesser included offense of assault in the third degree. Mr. Brown argues section 556.046, RSMo Supp. 2002, obligated the trial court to instruct the jury on third degree assault because there was a basis in the evidence to acquit him of the greater offense of first degree assault and to convict him of the lesser offense of third degree assault. Mr. Brown concludes the trial court's instructional error was prejudicial because the second degree assault instructions given at trial did not adequately test the elements of first degree assault.

         The issue of whether a trial court erroneously rejected a proffered lesser included offense instruction is subject to de novo review. State v. Jackson, 433 S.W.3d 390, 395 (Mo. banc 2014). A trial court's obligation to instruct on lesser included offenses is governed by section 556.046.2 and section 556.046.3, RSMo Supp. 2002. Section 556.046.2, RSMo Supp. 2002, provides, "The court shall not be obligated to charge the jury with respect to an included offense unless there is a basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense. . . ." Section 556.046.3, RSMo Supp. 2002, further provides:

The court shall be obligated to instruct the jury with respect to a particular included offense only if there is a basis in the evidence for acquitting the defendant of the immediately higher included offense and there is a basis in the evidence for convicting the defendant of that particular included offense.

         Collectively, sections 556.046.2 and 556.046.3, RSMo Supp. 2002, obligate trial courts to give a lesser included offense instruction 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 ...


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