Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Arrington

Court of Appeals of Missouri, Southern District, Second Division

June 13, 2019

STATE OF MISSOURI, Plaintiff-Respondent,
v.
CLINT EARL ARRINGTON, Defendant-Appellant.

          APPEAL FROM THE CIRCUIT COURT OF SCOTT COUNTY Honorable David A. Dolan, Circuit Judge

          JEFFREY W. BATES, J.

         Clint Arrington (Defendant) was convicted of six offenses: kidnapping in the first degree, a class B felony (Count 1); burglary in the first degree, a class B felony (Count 2); felonious restraint, a class C felony (Count 3); unlawful use of a weapon, a class D felony (Count 4); armed criminal action (ACA), an unclassified felony (Count 5); and violation of an order of protection, a class A misdemeanor (Count 6). In this appeal, he challenges only Count 3 - his conviction for felonious restraint. Defendant contends the trial court "plainly erred in failing to sua sponte instruct the jury on the class D felony of false imprisonment as to [Count 3], because that offense is a nested lesser-included offense of felonious restraint." We disagree and affirm.

         Insofar as relevant here, Defendant was charged with the above six counts for events that occurred in April 2016 involving his former girlfriend, B.P. (Victim). Count 3 alleged that Defendant "knowingly restrained [Victim] unlawfully and without consent so as to interfere substantially with [her] liberty and exposed [Victim] to a substantial risk of serious physical injury."

         A jury trial was held in June 2018. At the instruction conference, defense counsel stated that he had no objection to the instructions submitted by the State, including the verdict-directing instruction for Count 3, felonious restraint. Defense counsel did not request any instructions for a lesser-included offense.

         The jury found Defendant guilty as charged on all counts. In Defendant's motion for new trial, he did not include an allegation that the trial court erred by not instructing on a lesser-included offense for felonious restraint. Defendant was sentenced to: concurrent terms of 15 years for kidnapping and burglary; consecutive terms of 7, 4, and 3 years for felonious restraint, unlawful use of a weapon, and ACA, respectively; and a term of 6 months for violating an order of protection, to run concurrently with the other five counts. This appeal followed.

         Defendant recognizes that his claim of error on appeal is not preserved and requests plain-error review under Rule 30.20.[1] Plain-error relief requires "evident, obvious, and clear" error and a resulting "manifest injustice or miscarriage of justice." Id.; State v. Baumruk, 280 S.W.3d 600, 607-08 (Mo. banc 2009). "When the unpreserved allegation concerns instructional error, plain error exists when it is clear that the circuit court has so misdirected or failed to instruct the jury that manifest injustice or miscarriage of justice has resulted." State v. Zetina-Torres, 482 S.W.3d 801, 810 (Mo. banc 2016). The review of an unpreserved claim for plain error is discretionary. See Rule 30.20; Collings v. State, 543 S.W.3d 1, 14 (Mo. banc 2018).

         Defendant contends the trial court plainly erred by failing to sua sponte instruct the jury on the class D felony of false imprisonment "because that offense is a nested lesser-included offense of felonious restraint," and there was a basis in the evidence to submit it. According to Defendant, "failure to submit the nested lesser-included instruction for false imprisonment was thereby evident, obvious, and clear error resulting in manifest injustice."

         The State concedes that "there was a basis in the evidence to require submission of the 'nested' included offense of false imprisonment - had such an instruction been requested. But because there was no request for such an instruction, the trial court did not plainly err in failing to give such an instruction sua sponte." We agree.

         In State v. Clay, 533 S.W.3d 710 (Mo. banc 2017), our Supreme Court held that, when a party fails to timely request an instruction on a lesser-included offense, the trial court does not commit plain error by failing to sua sponte instruct the jury on the lesser-included offense. Id. at 717. The Court explained that "the trial court's obligation to instruct the jury on a lesser included offense is conditioned on a party timely requesting the instruction." Id. (italics added); c.f. State v. Smith, 522 S.W.3d 221, 229 (Mo. banc 2017) (the failure to instruct on a timely requested, lesser-included offense was reversible error). Consequently, "[t]he trial court is not obligated to sua sponte instruct the jury on a lesser included offense not requested at trial." Clay, 533 S.W.3d at 717. Further, a defendant may not take advantage of self-invited error or error of his own making. Id.; see also State v. Leonard, 490 S.W.3d 730, 744-45 (Mo. App. 2016) (if a defendant does not specifically request a lesser-included offense instruction, the defendant may not complain about the trial court's failure to give the instruction); State v. Ise, 460 S.W.3d 448, 463 (Mo. App. 2015) (instruction on a lesser-included offense is not required to be given if not requested); State v. Rowe, 363 S.W.3d 114, 120 (Mo. App. 2012) ("[i]t is well settled that the trial court was not obligated to give such an instruction sua sponte").

         Defendant acknowledges the holding in Clay, but offers two arguments to support the request for plain-error review. We find no merit in either argument.

         First, Defendant relies on Rule 28.02(a), which requires the trial court to "instruct the jury in writing upon all questions of law arising in the case that are necessary for their information in giving a verdict." Id. Defendant argues that, given the evidence, the trial court was obligated to instruct the jury sua sponte on the lesser-included offense of false imprisonment even when not requested to do so. Subsection (f) of Rule 28.02, however, refutes Defendant's argument by specifically providing that the "giving or failure to give an instruction … in violation of this Rule 28.02 … shall constitute error … provided that objection has been timely made …." Rule 28.02(f). Here, defense counsel did not object or request an instruction for false imprisonment as a lesser-included offense. Moreover, in Clay, our Supreme Court was well aware of the general directive included in Rule 28.02. See Clay, 533 S.W.3d at 715-16 (citing Rule 28.02 in resolving a different claim of instructional error earlier in the opinion). Thereafter, the Court clearly held that "[t]he trial court is not obligated to sua sponte instruct the jury on a lesser included offense not requested at trial." Clay, 533 S.W.3d at 717.

         Second, Defendant hypothesizes that his future Rule 29.15 post-conviction-relief motion will allege ineffective assistance of counsel for failing to request an instruction for false imprisonment. See, e.g., McNeal v. State (McNeal I), 412 S.W.3d 886, 889-90 (Mo. banc 2013). Based on that hypothesis, Defendant argues that "the mere fact that trial counsel failed to request a false imprisonment instruction should not be dispositive of this appeal where it will be dispositive of [his] congruent post-conviction claim." According to Defendant, "this Court should not squander scarce judicial resources by needlessly soliciting a viable claim of ineffective assistance of counsel," and should grant a new trial now by finding that "the trial court's failure to sua sponte issue a verdict director for the nested lesser-included offense of false imprisonment was evident, obvious, and clear error under the circumstances."

         We find no merit in this argument. In a Rule 29.15 post-conviction motion proceeding, an allegation that trial counsel was ineffective for not requesting an instruction on a lesser-included offense will fail if counsel had a strategic reason for not requesting such an instruction. See, e.g., McNeal v. State (McNeal II), 500 S.W.3d 841, 842-45 (Mo. banc 2016) (after evidentiary hearing, based on reasonable trial strategy, trial counsel not ineffective ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.