Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF WAYNE COUNTY Honorable Kelly Wayne
W. LYNCH, J.
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.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.
and Procedural Background
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.
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.
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
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.
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.
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."
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.
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
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.
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.
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.
1 - No Ambiguity Shown ...