Court of Appeals of Missouri, Western District, Third Division
from the Circuit Court of Jackson County, Missouri The
Honorable Jalilah Otto, Judge
Alok Ahuja, Presiding Judge, Gary D. Witt, Judge and Anthony
Rex Gabbert, Judge
D. Witt, Judge
Lindsey ("Lindsey") appeals his conviction for
murder in the first degree, section 565.020,  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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
1. A person commits the crime of tampering with physical