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State v. Lindsey

Court of Appeals of Missouri, Western District, Third Division

December 10, 2019

STATE OF MISSOURI, Respondent,
v.
BRAD LINDSEY, Appellant.

          Appeal from the Circuit Court of Jackson County, Missouri The Honorable Jalilah Otto, Judge

          Before Alok Ahuja, Presiding Judge, Gary D. Witt, Judge and Anthony Rex Gabbert, Judge

          Gary D. Witt, Judge

         Brad Lindsey ("Lindsey") appeals his conviction for murder in the first degree, section 565.020, [1] armed criminal action, section 571.015, unlawful use of a weapon, section 571.030, and tampering with physical evidence, section 575.100, following a jury trial in the Circuit Court of Jackson County. Lindsey alleges that there was insufficient evidence upon which the jury could have convicted him of felony tampering with physical evidence because there was no evidence that Lindsey's actions actually impaired or obstructed his prosecution. Lindsey also alleges that the circuit court erred in failing to sua sponte issue a corrective instruction to the jury after the State incorrectly argued that the jury had to find Lindsey not guilty of murder in the first degree before it could consider the lesser-included offenses. We affirm.

         Factual Background[2]

         On the night of May 14, 2016, Lindsey and D'Adrian Bell ("Victim") were present at the home of DeWayne Lester ("Lester"). There were five other people in the house including Lester. Most were relaxing, listening to music, and drinking. Lindsey drank three to four cups of wine and one beer, but also smoked marijuana and cigarettes dipped in PCP. Lindsey testified that he was intoxicated.

         At some point that night, Victim tried to purchase marijuana from Lindsey. Victim and Lindsey disagreed over the price and began to argue. They were in the living room of Lester's home and Lester asked both Lindsey and Victim to leave. Instead, the argument moved to one of the bedrooms. Another guest, Myeisha Shaw ("Shaw"), went to the bedroom to try and calm Lindsey down. The argument, however, escalated into a physical fight. Lindsey told police that Victim swung at Lindsey but missed, which caused Lindsey to fall to the floor and cut his hands. Lindsey then got up and hit Victim three times. Lester came into the bedroom and found both men on the ground fighting. Lester pulled the two men off of each other.

         Lester told police that he had separated Victim and Lindsey a couple minutes before the shooting occurred. During that time, Lester again asked the men to leave his home. Lindsey pulled out at .38 caliber revolver; Lester said "no, Brad" before Lindsey shot the Victim. Lindsey admitted during his testimony that Victim never had a gun nor threatened to harm him with a weapon.

         Lindsey pulled the gun's trigger three times before it fired a bullet. On the fourth pull, the gun fired. Ultimately, Lindsey pulled the trigger five times, successfully firing a bullet only twice, hitting Victim in the neck and chest. Victim died from his gunshot wounds.

         Lester called 911 after the shooting. Lindsey fled the house with the gun, his cell phone, and Victim's cellphone. He threw the gun and his clothing into the Missouri River from the Broadway Bridge. He disposed of the cell phones by throwing them out the window while driving on 71 Highway. He then went to eat with his nephew and then returned to his residence.

         At trial, Lindsey argued that he acted in self-defense. He testified that he had seizures due to an automobile accident prior to the shooting. To stop the seizures, Lindsey had a vagus nerve stimulator ("VNS") implanted in his chest. He testified that he was concerned during the fighting about Victim hitting his VNS implant and causing it to fail to properly operate.

         The State tried Lindsey for murder in the first degree, armed criminal action, unlawful use of a weapon for firing a handgun while intoxicated, and tampering with physical evidence. During trial, Lindsey testified that he felt "very guilty" for tampering with evidence. When asked about firing a weapon while intoxicated, he responded: "Yes. I'm guilty for that." He denied guilt as to murder, claiming self-defense.

         The jury found Lindsey guilty of murder in the first degree, armed criminal action, unlawful use of a weapon for firing a handgun while intoxicated, and tampering with physical evidence. The judge found Lindsey to be a prior offender and sentenced Lindsey to life in prison without parole for the murder in the first degree, ten years in prison for armed criminal action, four years for unlawful use of a weapon, and four years for tampering with physical evidence. Lindsey's sentences were ordered to run concurrently. This appeal followed.

         Discussion

         I.

         Lindsey's first point on appeal alleges that there was insufficient evidence to convict him of Count IV, felony tampering with physical evidence pursuant to section 575.100. Lindsey claims that while he did tamper with physical evidence, to be guilty of felony tampering there must be some evidence that the tampering actually impaired or obstructed the prosecution or defense of a felony. He argues that because of the overwhelming evidence immediately connecting Lindsey to the shooting, there was no such evidence of actual impairment or obstruction of either parties' ability to present the case to the jury under these facts.

         A claim of sufficiency of the evidence to sustain the conviction need not be raised in a motion for new trial to preserve the issue for appeal. Rule 29.11(d)(3); State v. Claycomb, 470 S.W.3d 358, 361 (Mo. banc 2015). "In reviewing a claim that there was not sufficient evidence to sustain a criminal conviction, this Court does not weigh the evidence but, rather, accepts as true all evidence tending to prove guilt together with all reasonable inferences that support the verdict, and ignores all contrary evidence and inferences." Claycomb, 470 S.W.3d at 362 (internal quotations omitted). "This Court asks only whether there was sufficient evidence from which the trier of fact reasonably could have found the defendant guilty." Id. (internal quotations omitted).

         Under section 575.100,

1. A person commits the crime of tampering with physical ...

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