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State v. White

Court of Appeals of Missouri, Southern District, First Division

April 4, 2019

STATE OF MISSOURI, Plaintiff-Respondent,
CHARLES L. WHITE, Defendant-Appellant.

          APPEAL FROM THE CIRCUIT COURT OF WAYNE COUNTY Honorable Kelly Wayne Parker

          GARY W. LYNCH, J.

         Following a jury trial and his convictions on the class A felony of assault in the first degree, see section 565.050, and the class B felony of burglary in the first degree, see section 569.160, Charles L. White ("Defendant") appeals, raising two claims of trial court error.[1]Defendant first contends that section 569.160 is facially ambiguous and that, resolving the ambiguity in favor of Defendant, the evidence was insufficient to convict him of first-degree burglary. Second, he contends that the trial court plainly erred in failing to sua sponte declare a mistrial for what Defendant alleges was the prosecutor's direct reference to Defendant's failure to testify. Finding no merit in either claim, we affirm.

         Factual and Procedural Background

         Upon review, appellate courts consider the facts and all reasonable inferences derived therefrom in a light most favorable to the guilty finding, disregarding all contrary evidence and inferences. State v. Bewley, 68 S.W.3d 613, 617 (Mo.App. 2002). From this perspective, the facts and inferences supporting Defendant's convictions are summarized as follows.

         On January 18, 2013, Clyde Mitchell, who lived alone at 47 North Herron Street in Ellsinore, was watching television when he heard a knock at his front door. Mitchell turned on the floodlights outside and looked through a curtain and saw a "big, tall figure in full camo[, ]" wearing a mask and a cap. Fearing for his life, Mitchell ran to get his pistol, which was nearby, at about the time that his front door was kicked in, shattering the door jamb. As Mitchell tried to ready the pistol to fire, he was clubbed and thrown into a window, tearing down venetian blinds and breaking nearby furniture as he fell. Mitchell fired his pistol once before he was hit in the head three times - once in the forehead, once over his eye, and once again in his jaw. Mitchell fired two more shots inside the house, and by the time he was able to get up, the assailant was gone. Mitchell called 911 on his landline, and after emergency medical personnel arrived, he was transported to a Poplar Bluff hospital. To responding emergency personnel, Mitchell described his assailant as "a tall, thin man[, ]" wearing camouflage and a face mask.

         Gerri Flatt, who was a dispatcher at Carter County Sheriff's Department on January 18, 2013, received Mitchell's call for assistance around 6:46 p.m. At 6:51 p.m., she received a call from Larry White requesting assistance for his son, Defendant, at his home on Grand Avenue in Ellsinore, a short distance away from Mitchell's residence. Emergency medical personnel and law enforcement responded to both locations while ambulances were dispatched from Poplar Bluff to assist.

         Garth Lawson, an emergency medical technician, arrived at Mitchell's home, where he found the front door open and Mitchell standing at the kitchen sink bleeding profusely from his head. He had lost a lot of blood and sustained serious, life-threatening injuries attributed to blunt trauma, including severe lacerations "down to the bone," a fractured jaw, and fractures of the left maxillary sinus and around the left eye orbit. Mitchell was transferred to St. Louis University Hospital and spent the next three months in a nursing home recovering from his injuries.

         Ambulance dispatcher and first responder Beth Asher responded to the White residence and found Defendant outside about ten feet from the back porch, rolling on the ground. Defendant was agitated and holding his right arm. There was a hole through the right sleeve of Defendant's jacket. In order to treat Defendant's wound, which was "through and through" and about three inches above the elbow on the inside of his arm, Asher had to cut off the sleeve of Defendant's jacket. Asher described his jacket as "maybe a camouflage or something zip-up heavy jacket[, ]" "[s]omething like camouflage or a Carhart, that thick material." Defendant was still wearing it when she left the scene. Additional officers noted that Defendant wore a camouflage jacket and clothing, including pants.

         Defendant told Asher "someone had knocked on his back door, he opened it there was nobody there and he went . . . outside and somebody shot him." Defendant indicated to her that the shot came from behind his trailer. When law enforcement officers asked Defendant how he was shot, Defendant told Deputy Michael Burgin that he thought "a couple of guys over by the shed" had shot him, and he told Sherriff Richard Stephens that he did not see who shot him but "heard a male's voice."

         Defendant was transported to the hospital in Poplar Bluff for treatment. Corporal Terry Lee with the highway patrol was sent there to retrieve Defendant's clothing and possibly the bullet. He was also instructed to photograph Defendant's wound. Initially, Lee considered Defendant a victim, but when he explained the purpose of his visit, Defendant became "standoffish and backed up[, ]" "kind of withdrew and tensed up and said his lawyer told him not to allow us to take anything without a warrant." Although Lee explained that such evidence would be helpful in any case against Defendant's assailant, Defendant still refused to cooperate. Lee was then instructed to arrest Defendant if he tried to leave, and when Lee returned to arrest Defendant, he violently resisted, hitting and kicking, and began trying to bite Lee. Lee had to call for help, and it took three of them to subdue Defendant. No clothing was retrieved, and Lee was advised that there was no bullet, that it had passed completely through Defendant's arm.

         Highway patrol and law enforcement personnel investigated the vicinity in and around Defendant's and Mitchell's residences. Of the three shots fired by Mitchell during the altercation with his attacker, "[t]hree [expended] brass" were seized inside the home and investigators located two of the projectiles that had been fired. Both projectiles were found on the floor and there was no indication that a projectile had been fired in such a manner that it would have traveled beyond the confines of the residence.

         At the White residence, blood was found on the back porch step, the back door, and inside in the kitchen area. When investigators were photographing the scene inside Defendant's residence and came upon a coat and boots with what appeared to be blood on the toes in the kitchen area, Defendant's mother and girlfriend became concerned, and the sheriff sent everyone outside and requested a search warrant. After the search warrant was obtained, the investigators returned to the interior of the residence to collect and photograph potential evidence, which included camouflage type boots, a jacket, camouflage turkey mask, camouflage gloves, and a knife.

         In a field separating the White residence and the Mitchell residence, investigators found blood on some leaves along a wire fence. The blood was analyzed and was determined to contain DNA consistent with the DNA profile of Defendant.

         Defendant was charged as a prior and persistent offender with first-degree assault and first-degree burglary. A jury ultimately found Defendant guilty on both counts, and the trial court sentenced him to serve consecutive terms of twenty-five years' imprisonment for first-degree assault and ten years' imprisonment for first-degree burglary. Defendant timely appeals.


         Point 1 - No Ambiguity Shown ...

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