STATE OF MISSOURI,                          )
                                            )
              Plaintiff-Respondent,         )
                                            )
v.                                          )       No. SD34254
                                            )       Filed: November 30, 2016
JUSTIN DION TUTTLE,                         )
                                            )
              Defendant-Appellant.          )

           APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY

                      Honorable Charles D. Curless, Special Judge

AFFIRMED

       Justin Tuttle (Defendant) was convicted after a jury trial of second-degree felony

murder and armed criminal action (ACA). See §§ 565.021, 571.015.1 Defendant’s single

point on appeal contends the trial court plainly erred in submitting an instruction for

second-degree felony murder based on second-degree assault because such submission was

prohibited by the “merger doctrine.” Finding no merit to this contention, we affirm.




       1
        All statutory references are to RSMo (2000). All rule references are to Missouri
Court Rules (2016).
       A second amended information charged Defendant with first-degree murder and

ACA for assaulting and killing Daniel Martin, Jr. (Victim). See §§ 565.020, 571.015. The

information also gave notice that the State would submit “murder in the second degree

felony under Section 565.021.1(2),” based on the death of Victim “as a result of the

perpetration of the class C felony of assault in the second degree under Section

565.060.1(2)[.]” After Defendant was found guilty of the felony-murder charge and ACA,

he was sentenced to consecutive terms of life imprisonment for second-degree felony

murder and 15 years for ACA.2

       Defendant does not challenge the sufficiency of the evidence to support his

convictions. “This Court reviews the evidence in the light most favorable to the jury’s

verdict.” State v. Celis-Garcia, 344 S.W.3d 150, 152 (Mo. banc 2011). So viewed, the

following evidence was adduced at trial.

       On the morning of September 26, 2013, Victim and his girlfriend, Annmarie Patrick

(Patrick), were looking to “get some meth.” Victim and Patrick were driving in Victim’s

pickup truck when they saw Defendant and Daniel Compton (Compton) walking down the

road. Victim and Defendant knew each other. Victim and Defendant had gone to school




       2
          In addition to the charges of murder and ACA (Counts 1 and 2) outlined above,
Defendant also was charged, as a prior and persistent offender, with five additional counts:
the class D felony of tampering with physical evidence for concealing Victim’s body
(Count 3); tampering with physical evidence for concealing a pickup truck (Count 4); the
class D felony of abandonment of a corpse (Count 5); the class C felony of first-degree
tampering for unlawfully operating the truck (Count 6); and the class C felony of stealing
the truck (Count 7). Pursuant to a plea agreement, the State agreed to dismiss Counts 4, 5
and 7 in exchange for guilty pleas to Counts 3 and 6. With respect to Counts 3 and 6,
Defendant was sentenced to seven years and 15 years, respectively. Those terms are to run
consecutively to each other, but concurrently with Count 1.
                                             2
together and had been “getting high” together for 10 years. Patrick and Defendant had

previously had sex, but Victim was not aware that had happened.

       Victim asked Defendant “if he could find any meth.” Defendant said he “might be

able to.” Victim drove Defendant and Compton to a house and dropped them off. Victim

and Patrick then went to find some money. After obtaining $50, Victim and Patrick met

Defendant and Compton. The plan was for Compton to get the methamphetamine and then

meet Victim, Defendant and Patrick later at Jones Trading Post Road, which was near a

local swimming hole.

       Victim, Defendant and Patrick went to Jones Trading Post and swam for 10 to 15

minutes. Patrick went to the truck to change her clothes. Defendant came up to the truck

and told Patrick, “something’s going to happen, but don’t freak out.” Defendant went back

to where Victim was.

       Patrick was digging through her stuff to find some clothes when she heard someone

yell. Patrick turned around and saw Victim holding his head. Victim and Defendant started

fighting and wrestling, and they eventually rolled into the water.3 Defendant “pulled [his]

knife” and stabbed Victim. Victim screamed for Patrick to get help. Patrick jumped in the

water to try to pull Victim out from underneath Defendant, but Victim “was already dead

by the time [she] got in the water.” Defendant told Patrick to give him a big rock, which

she did. Defendant “put it underneath [Victim’s] shirt and sunk him right there in four foot

of water.”




       3
         Defendant testified that the fight began when Victim asked Defendant if he had
had sex with Patrick, and Defendant answered, “fuck you, everybody has, you know.”
                                             3
        Defendant and Patrick got into Victim’s truck and left. Defendant told Compton

that he and Victim “got into it[,]” Defendant “knocked a couple of holes in [Victim]” and

Victim ran off. Defendant and Patrick told friends that Victim had “run off to Nixa with

some girl.” Victim’s body was found three days later floating in the lake near Jones

Trading Post Road.

        A forensic pathologist conducted Victim’s autopsy and observed various injuries.

Victim had defensive wounds on his hands. Victim had a laceration on the back of his

head about “three fourths of an inch long” and “a half inch deep.” The laceration was the

result of blunt force trauma. Victim also had several incised wounds “as a result of sharp

force injury.” Victim had incised wounds on his upper right back, the middle of his back,

his left cheek, above his left collarbone, the right side of his chest, the left side of his chest

and below the breastbone. These wounds were consistent with being stabbed by a knife or

other sharp instrument. The wound on the left side of Victim’s chest was lethal because

“it went between the ribs” and the “left lung was cut.” The wound below the breastbone

was “potentially lethal, because it went in and hit the liver and caused – would have caused

bleeding from there.” The cause of death was determined to be “[i]nsufficient oxygen

going to the brain as a result of decreased oxygen in the blood, because of the injury to the

lung[.]” The manner of death was determined to be homicide.

        Defendant testified on his own behalf. Defendant took responsibility for all the

wounds on Victim’s body, but claimed he acted in self-defense.

        The jury instructions submitted by the State included Instruction No. 10, the verdict

director for second-degree murder as a result of perpetration of second-degree assault, and

Instruction No. 11, hypothesizing second-degree assault. At the instruction conference, the



                                                4
trial court asked defense counsel if she had an objection to any of the instructions submitted

by the State, and counsel responded, “No, Your Honor.” Both instructions were read to

the jury. In Defendant’s motion for new trial, he did not raise a claim of instructional error.

This appeal followed.

                                    Standard of Review

       “In order to assign the giving of an instruction as error, Rule 28.03 requires a

defendant to both make a specific objection during trial and raise the issue in his motion

for new trial.” State v. Cooper, 215 S.W.3d 123, 125 (Mo. banc 2007). Because Defendant

failed to preserve his claim of instructional error, we only review for plain error. See State

v. Zetina-Torres, 482 S.W.3d 801, 810 (Mo. banc 2016); State v. Wurtzberger, 40 S.W.3d

893, 897-98 (Mo. banc 2001); State v. Myles, 479 S.W.3d 649, 656-57 (Mo. App. 2015);

State v. Manuel, 443 S.W.3d 669, 672 (Mo. App. 2014); State v. Merrick, 257 S.W.3d

676, 680 (Mo. App. 2008). For instructional error to rise to the level of plain error, a

defendant must demonstrate that the trial court “so misdirected or failed to instruct the jury

that manifest injustice or miscarriage of justice has resulted.” Zetina–Torres, 482 S.W.3d

at 810; see Cooper, 215 S.W.3d at 125.

                                  Discussion and Decision

       Defendant’s single point contends the trial court plainly erred in submitting

Instruction No. 10, the felony murder director, and Instruction No. 11, defining second-

degree assault. These instructions are set forth below.

                                 INSTRUCTION NO. 10

               As to Count I, if you do not find the defendant guilty of murder in
       the second degree as submitted in Instruction Number 8, you must consider
       whether he is guilty of murder in the second degree under this instruction.



                                              5
              As to Count I, if you find and believe from the evidence beyond a
       reasonable doubt:

              First, that defendant committed assault in the second degree, as
       submitted in Instruction No. 11, and

                Second, defendant caused the death of [Victim], by stabbing him,
       and

               Third, that [Victim] was killed as a result of the perpetration of that
       assault in the second degree,

       then you will find the defendant guilty under Count I of murder in the
       second degree.

              However, unless you find and believe from the evidence beyond a
       reasonable doubt each and all of these propositions, you must find the
       defendant not guilty of murder in the second degree under this instruction,
       but you must then consider whether he is guilty of voluntary manslaughter
       under Instruction No. 13.

                                INSTRUCTION NO. 11

                If you find and believe from the evidence beyond a reasonable
       doubt:

              First, that on or about September 26, 2013, in the County of Stone,
       State of Missouri, the defendant knowingly caused physical injury to
       [Victim] by means of a dangerous instrument by stabbing him, and

              Second, that defendant did not act in lawful self-defense as
       submitted in Instruction No. 24,

       then you will find that the defendant has committed assault in the second
       degree.

              However, unless you find and believe from the evidence beyond a
       reasonable doubt each and all of these propositions, you cannot find that the
       defendant has committed assault in the second degree.

       Defendant argues that because “the alleged second-degree assault was the act

causing the murder,” submission of second-degree felony murder based upon second-

degree assault was prohibited by the “merger doctrine.” We disagree.



                                             6
       In Missouri, a person can commit second-degree murder in one of two ways: (1)

knowingly, or with the purpose of causing serious physical injury, causing the death of

another; or (2) committing felony murder. See § 565.021.1. A person commits felony

murder if he:

       Commits or attempts to commit any felony, and, in the perpetration or the
       attempted perpetration of such felony or in the flight from the perpetration
       or attempted perpetration of such felony, another person is killed as a result
       of the perpetration or attempted perpetration of such felony or immediate
       flight from the perpetration of such felony or attempted perpetration of such
       felony.

§ 565.021.1(2) (emphasis added). In addition, the penalty provision of the statute provides

that “[m]urder in the second degree is a class A felony, and the punishment for second

degree murder shall be in addition to the punishment for commission of a related felony or

attempted felony, other than murder or manslaughter.” § 565.021.2 (emphasis added).

       “The felony-murder rule permits the felonious intent necessary to a murder

conviction to be shown by the perpetration of or attempt to perpetrate a felony.” State v.

Bouser, 17 S.W.3d 130, 135 (Mo. App. 1999) (internal quotation marks omitted). The

merger doctrine, initially a judicial creation, is a means of limiting or barring application

of the felony-murder rule when the underlying felony is the very act that caused the

homicide. Id.; see State v. Williams, 24 S.W.3d 101, 109-11 (Mo. App. 2000) (explaining

that the merger doctrine applies to merge the underlying felony into the homicide when the

underlying felony is the same act that was alleged to have caused victim’s death). Since

its inception in 1878, “[o]nly a few cases have embraced the merger doctrine.” State v.

Gheen, 41 S.W.3d 598, 604 (Mo. App. 2001); see Williams, 24 S.W.3d at 111-13.

       In Williams, the western district of this Court effectively concluded the merger

doctrine was no longer viable in Missouri because it was precluded by the second-degree

                                             7
murder statute and the definition of felony murder. Williams, 24 S.W.3d at 114-17; see

§ 565.021.1(2) (felony murder committed if a person commits or attempts to commit “any

felony” and another person is killed as a result). Initially, the Court determined that by

giving the “any felony” language of the statute its plain and ordinary meaning, “any” felony

means “every” felony. Williams, 24 S.W.3d at 115. The Court also focused on the penalty

provision of the statute. See § 565.021.2 (punishment for second-degree murder shall be

in addition to the punishment for commission of a related felony or attempted felony, “other

than murder or manslaughter”). The Court concluded that “our legislature excluded murder

and manslaughter as predicate felonies for felony murder and, in doing so, intended that no

other limitations be placed on the offense of felony murder, which would include limitation

by way of the merger doctrine.” Williams, 24 S.W.3d at 117.

       Recently, this Court relied on Williams in rejecting an argument similar to that of

Defendant here in State v. Simino, 397 S.W.3d 11, 24 (Mo. App. 2013).4 In Simino, the

defendant was charged with felony murder based on the underlying felony of domestic

assault. Id. at 18-19. As in the case at bar, the defendant was not charged with the assault,

and the jury only determined whether the defendant committed assault in order to decide

whether he committed felony murder. Id. at 19. The defendant argued that the submission

of the felony-murder verdict director and the instruction defining domestic assault violated

the merger doctrine. Id. at 24. This Court disagreed, holding that, “[t]he express language

of the felony-murder statute abrogated the common law doctrine of merger, and we ‘are

obligated to enforce the felony-murder statute as written, without limiting its application




       4
        Simino was abrogated on other grounds by State v. Sisco, 458 S.W.3d 304 (Mo.
banc 2015).
                                             8
by the [merger] doctrine.’” Id. at 25 (quoting Williams, 24 S.W.3d at 117). This Court

explained:

       In Williams, the Western District reviewed the cases involving the “merger
       doctrine,” the felony-murder rule, and statutory history. 24 S.W.3d at 109-
       17. The Western District concluded that the legislature intended “no other
       limitations be placed on the offense of felony murder, which would include
       limitation by way of the merger doctrine.” Id. at 117 (noting the legislature
       excluded murder and manslaughter as predicate felonies for felony murder
       and in specifically doing so, meant for those exclusions to be the only
       limitations on the felony-murder offense). If the legislature had intended to
       include the merger doctrine as a limitation on the felony-murder rule, it
       could have easily done so. Id.

Simino, 397 S.W.3d at 24; see also State v. Barker, 410 S.W.3d 225, 235 (Mo. App. 2013)

(Missouri courts’ more recent decisions have clearly held that the merger doctrine under

the current Missouri statutory scheme is no longer a viable theory); State v. Dudley, 303

S.W.3d 203, 207 (Mo. App. 2010) (merger doctrine no longer a viable theory); Gheen, 41

S.W.3d at 605 (“we hold that the merger doctrine, under the current Missouri statutory

scheme, is no longer a viable theory”).

       Defendant argues the Simino Court’s reliance on Williams is misplaced because

that case was “based on the ‘punishment’ provisions of Section 565.021” and Defendant

was not punished for the assault in this case. For this reason, Defendant requests this Court

“eschew the reasoning of Williams and Simino” and return to earlier holdings “that

assaultive behavior merges into the acts causing the death” as “the more correct analysis.”

We decline to do so. Although the Williams Court did rely on the penalty provision of the

second-degree murder statute, the opinion made clear that both the “any felony” language

and the penalty provision prohibit the application of the merger doctrine. In noting that

courts had previously applied the merger doctrine despite the “any felony” language, the

Williams Court assumed that those courts “did not see the application of the doctrine as a


                                             9
case of statutory interpretation” and “courts are obligated to enforce the felony murder

statute as written[.]” Williams, 24 S.W.3d at 116-17; see State v. Burns, 978 S.W.2d 759,

761 (Mo. banc 1998) (courts are obligated to follow and apply the law as written).

Moreover, in holding that the second-degree murder statute abrogated the merger doctrine,

other courts have based their decisions on the “any felony” language, not just the penalty

provision. See, e.g., Dudley, 303 S.W.3d at 207 (two features of the second-degree murder

statute demonstrate a legislative intent that any felony can support felony murder (other

than murder or manslaughter), one of which is the “any felony” provision in

§ 565.021.1(2)); Gheen, 41 S.W.3d at 604 (“‘any felony’ means any offense chargeable as

a felony”); Bouser, 17 S.W.3d at 139 (the legislature “clearly chose” to delineate “any

felony” as being capable of supporting a second-degree felony murder conviction; if the

legislature had desired to limit the underlying felonies, it would have done so). As in

Simino, the fact that Defendant here was not “punished” for assault had no bearing on the

merger doctrine’s viability.

       Thus, the trial court did not plainly err in submitting Instruction Nos. 10 and 11 to

the jury because the instructions were not prohibited by the merger doctrine. Defendant’s

point is denied, and the judgment of the trial court is affirmed.



JEFFREY W. BATES, P.J. – OPINION AUTHOR

DON E. BURRELL, J. – CONCUR

MARY W. SHEFFIELD, C.J. – CONCUR




                                             10
