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State v. Vanlue

Court of Appeals of Missouri, Southern District, Second Division

June 10, 2019

STATE OF MISSOURI, Respondent,
v.
DAVID JOE VANLUE, Appellant.

          APPEAL FROM THE CIRCUIT COURT OF ST. CLAIR COUNTY HONORABLE JAMES R. BICKEL, JUDGE.

          Before Francis, P.J., Bates, J., and Scott, J.

          PER CURIAM.

         A jury found David Vanlue guilty of assault on a law-enforcement officer ("ALO") in the first degree. The state concedes that the trial court erred in not instructing down to second-degree ALO as requested by Vanlue and required by State v. Jackson, 433 S.W.3d 390 (Mo. banc 2014). We agree. The sole issue on appeal is prejudice. We address applicable law first.

         Jackson Error/Jensen

         Prejudice Per Jackson, 433 S.W.3d at 401,

the jury's right to disbelieve all or any part of the evidence, and its right to refuse to draw any needed inference, is a sufficient basis in the evidence to justify giving any lesser included offense instruction when the offenses are separated only by one differential element for which the state bears the burden of proof.

         Such lesser offenses are referred to as "nested" and consist of a subset of the greater offense's elements; one cannot commit the greater without committing the lesser too. State v. Randle, 465 S.W.3d 477, 479 (Mo. banc 2015). A defendant is entitled to a nested lesser-included offense instruction upon request. Id.

         As noted, the state concedes trial-court error in denying Vanlue's request to instruct down to the nested lesser-included offense of second-degree ALO. See Fisher v. State, 359 S.W.3d 113, 121 (Mo.App. 2011).[1] "[T]he distinguishing element between the two crimes is that first-degree assault requires that the defendant intended to cause death or serious physical injury to a law enforcement officer, while second-degree assault requires that the defendant intended to cause physical injury to a law enforcement officer." Id.[2]

         This error raises a rebuttable presumption of prejudice. State v. Jensen, 524 S.W.3d 33, 38 n.3, 40 n.5 (Mo. banc 2017). Although Jackson, the seminal case as to error, "does not discuss the various ways the State may overcome the presumption of prejudice, "[3] Jensen offers guidance as to a reviewing court's ultimate inquiry:

[W]hen a trial court fails to instruct the jury as required by the MAI, such errors are presumed to prejudice the defendant unless it is clearly established by the State that the error did not result in prejudice. Likewise, in Jackson, this Court noted a conviction will be reversed for instructional error only if there is a reasonable probability that the trial court's error affected the outcome of the trial. The fact that a conviction will be reversed only if there is a "reasonable probability" the error affected the outcome demonstrates the presumption of prejudice is rebuttable.

Id. at 38 n.3 (citation and some internal punctuation omitted). Jensen further describes the prejudice analysis as "retrospective in that it looks back to the jury's verdict as an objective data point that focuses the analysis on whether 'there is a reasonable probability that the trial court's error affected the outcome of the trial.'" Id. at 40 n.5 (quoting Jackson, 433 S.W.3d at 395 n.4).

         For other legal guidance relevant to prejudice in this case, we find only our Chief Justice's separate opinions where he reviewed the record and, based on the strength of the evidence, expressed his view that the state had overcome the presumption of prejudice.[4] Finding neither approval nor disapproval of that approach expressed elsewhere, we assume arguendo its propriety and review this trial record accordingly.

         Trial Record

         This was a two-witness trial. Officer Sellers testified that he had been on night patrol and saw Vanlue behaving strangely. The officer stopped his marked police car, exited the vehicle in uniform, identified himself, asked Vanlue for ID, radioed dispatch from his shoulder mic, and was told there was an active warrant for Vanlue's arrest. Vanlue, within earshot, pulled a butcher knife and lunged at Officer Sellers, whose protective vest turned the knife blade away without injury. After a struggle, the officer disarmed Vanlue, who broke free and fled, but was arrested after a foot pursuit.

         Vanlue also testified. On direct, he acknowledged that he had been on probation for three felonies, with an active warrant out for him, and high on meth when this occurred. He admitted having the knife, but denied ever pulling it out of his pocket, and described his encounter with Officer Sellers this way:

He asked me, you know, what my name was. And, you know, he said he was doing pedestrian checks. And I gave him a fake name. And I'm thinking I'm going to jail for a concealed weapon anyway…. I was like, Man, I'm going to jail for concealed weapon. So when he asked if I had anything on me, I told him I had a butcher knife in my pocket. I told him, I have a butcher knife in my pocket. And he said, I'll tell you what we're going to do, and he went to move at all and I ran. And the knife had to fall out of my pocket.
His cross-examination ended this way:
Q. There's no doubt that you were fully aware that he was a law enforcement officer when ...

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