                     In the Missouri Court of Appeals
                             Eastern District
                                        DIVISION ONE

STATE OF MISSOURI,                              )        No. ED99137
                                                )
       Respondent,                              )        Appeal from the Circuit Court
                                                )        of St. Louis County
vs.                                             )
                                                )
ANWAR RANDLE,                                   )        Hon. Robert S. Cohen
                                                )
       Appellant.                               )        FILED: October 7, 2014

       Anwar Randle (“Defendant”) appeals from the judgment of the trial court entered after a

jury convicted him of trespass in the first degree, assault in the second degree, and armed

criminal action. Finding no error, we affirm.

       Viewed in the light most favorable to the verdict, State v. Strong, 142 S.W.3d 702, 710

(Mo. banc 2004), the facts are as follows. At about 1:00 a.m. on November 2, 2009, Defendant,

Omoruyi Obasogie, and an unidentified man broke into a home occupied by Cameron Bass and

Kena Coleman, who were asleep at the time. Both Bass and Coleman knew Defendant but did

not know Obasogie or the third man. Bass and Coleman awoke, and Coleman went into the

hallway to investigate. Bass hid in the bedroom closet after hearing voices demanding to know

where he was. Coleman was pushed into the bedroom and then pulled back out. Defendant and

Obasogie entered the bedroom looking for Bass. Defendant was holding a large bottle of vodka,

while Obasogie was armed with a small handgun. Bass came out of the closet. Defendant and

Obasogie wanted Bass to go outside. Obasogie fired the gun but struck no one. Bass fled
through the closet into an adjacent bedroom and ran to the window, where he saw the

unidentified third man armed with a shotgun. Defendant and the unidentified man came into the

bedroom where Bass was standing and they beat him respectively with the vodka bottle and the

shotgun. Defendant eventually broke the vodka bottle on Bass’s head. Eventually, the three

intruders left.

        Bass then called the police. The resulting police dispatch stated that three black males

had entered a residence and shots had been fired. A St. Louis County police officer observed

three black males, Defendant and the other two intruders, driving in the area. The officer

initiated a traffic stop on the vehicle. Obasogie, who was driving the car, pulled over, and the

unidentified man exited and fled on foot. Defendant and Obasogie remained in the car and sped

away at high speed. They were later apprehended by multiple police officers in a parking lot.

        Defendant was charged by information in lieu of indictment as a prior offender with one

count of burglary in the first degree (Count I), one count of assault in the first degree (Count III),

and two counts of armed criminal action (Counts II and IV) associated respectively with the

other charges.

        Bass and Coleman testified, as did several police officers from the St. Louis County

Police Department who had responded to the incident. Defendant and his brother, Jamaal

Randle, testified on Defendant’s behalf. Defendant’s version of events differed significantly

from that told by Bass and Coleman. The trial court instructed the jury on burglary in the first

degree, the lesser-included offense of trespass in the first degree, and on the count of armed

criminal action associated with the burglary count. The trial court also instructed the jury on

assault in the first degree, the lesser-included offense of assault in the second degree, and the

count of armed criminal action associated with the assault count. It further instructed the jury on



                                                  2
self-defense, but refused Defendant’s proffered instruction on the lesser-included offense of

assault in the third degree.

           The jury returned verdicts of guilty on the lesser-included offense of trespass in the first

degree, the lesser-included offense of assault in the second degree, and on the armed criminal

action count associated with the assault count. The jury acquitted Defendant of the armed

criminal action count associated with the burglary count. The trial court sentenced Defendant to

a term of imprisonment of six months in the St. Louis County Jail for trespass, and terms of

seven years’ imprisonment each for assault and for armed criminal action with the Missouri

Department of Corrections, with all sentences to run concurrently. Defendant now appeals from

this judgment.

           In his first point relied on Defendant contends that the trial court erred by refusing to

submit his proffered jury instruction on the lesser-included offense of assault in the third degree,

Instruction “A”, which was patterned on MAC-CR3d 319.16. He asserts that the failure to give

his proffered instruction violated section 556.046 RSMo Cum Supp. 20071 as well as his

constitutional right to due process and a fair trial in that assault in the third degree is a lesser-

included offense of the charged count of assault in the first degree, there was a basis for

acquitting him of the charged offense, first degree assault, and the lesser-included offense of

second degree assault and for finding him guilty of third degree assault.

           When reviewing whether a trial court erred in refusing to instruct the jury on a lesser-

included offense, we view the evidence in a light most favorable to the defendant. State v.

Lowe, 318 S.W.3d 812, 816-17 (Mo. App. 2010). The defendant must request the instruction on

the lesser-included offense, and there must be a basis for acquittal on the greater offense in order

to require the trial court to give such an instruction. Id. For there to be a basis for acquittal on
1
    Unless noted otherwise, all further statutory citations are to RSMo Cum. Supp. 2007.

                                                           3
the greater offense, there must be evidence that an essential element of the greater offense is

missing, and the essential element that is lacking must be the basis for acquittal of the greater

offense and the conviction of the lesser. Id. Where there is doubt as to the propriety of

submitting the instruction on a lesser included offense, it should be resolved in favor of the

submission of the instruction, leaving the matter to the jury to determine. Id.

       However, a lesser included offense instruction is not required in all cases, as a defendant

is not entitled to such an instruction unless it is supported by “‘evidence of probative value and

“inferences which logically flow from the evidence.’” Id. It is not necessary to give a lesser

included offense instruction unless a rational, reasonable juror could draw inferences from the

evidence adduced that an essential element of the greater offense had not been established. Id.

Third degree assault is defined statutorily as a lesser-included charge of first degree assault and

of second degree assault.

       The Missouri Supreme Court has held, in essence, that there is virtually always a basis

for acquittal on the greater offense because a jury has the right to disbelieve all, some, or none of

the evidence, and to refuse to draw needed inferences. See State v. Jackson, 433 S.W.3d 390,

392-401 (Mo. banc 2014). There still must be a basis to convict on the lesser-included charge.

Sections 556.046.2 to 556.046.3. The State concedes that there was a basis to acquit Defendant

of second degree assault, as the jury did not have to believe that he shattered a bottle over Bass’s

head. The issue is whether there was a basis to convict Defendant of third degree assault.

Defendant’s proffered Instruction “A” stated that:

       As to Count III, if you do not find the defendant guilty of assault in the second
       degree as submitted in Instruction No. 10, you must consider whether he is guilty
       of assault in the third degree as submitted in this instruction.

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

                                                 4
          That on or about November 2, 2009, in the County of St. Louis, State of Missouri,
          the defendant recklessly caused physical injury to Cameron Bass by shattering a
          bottle on his head, then you will find the defendant guilty under this instruction of
          assault in the third degree.
          …

          As used in this instruction, the term “recklessly” means to consciously disregard a
          substantial and unjustifiable risk that circumstances exist or that a result will
          follow, and such disregard constitutes a gross deviation from the standard of care
          that a reasonable person would exercise in the situation.

Section 556.061(2) defines “physical injury” as “physical pain, illness, or any impairment of

physical condition.” The only evidence about his intent is circumstantial evidence from which

the jury could infer Defendant’s mental state.

          Defendant argues that there does not have to be any affirmative evidence to support an

instruction for the lesser-included offense, citing to State v. Pond, 131 S.W.3d 792, 794 (Mo.

banc 2004). However, what that case and subsequent cases have held is that there does not have

to be affirmative evidence to acquit a defendant of the greater charge; it is sufficient if the jury

could disbelieve the State’s evidence on any essential element. See Jackson, 433 S.W.3d at 399;

Pond, 131 S.W.3d at 794. The Missouri Supreme Court observed that Pond and subsequent

cases “have made lesser included offense instruction nearly universal, at least where the

differential element is one for which the state bears the burden of proof. (Emphasis added).

Jackson, 433 S.W.3d at 399. “Differential element” refers to an additional element that is part of

the greater offense that is not an element of the lesser-included offense. Id. at 392. It does not

refer to the different mental intent element that may exist between a greater offense and a lesser-

included offense, such as “knowingly” committed an act versus “recklessly” committed an act.

See id.




                                                   5
       Under section 562.016.3, a person acts with knowledge or acts knowingly if:

       (1) With respect to his conduct or to attendant circumstances when he is aware of
       the nature of his conduct or that those circumstances exist; or

       (2) With respect to a result of his conduct when he is aware that his conduct is
       practically certain to cause that result.

In contrast, a person is reckless or acts recklessly under section 562.016.4,

       when he consciously disregards a substantial and unjustifiable risk that
       circumstances exist or that a result will follow, and such disregard constitutes a
       gross deviation from the standard of care which a reasonable person would
       exercise in that situation.

       “A defendant is entitled to an instruction on any theory the evidence establishes.”

(Emphasis added). Pond, 131 S.W.3d at 794. “If the evidence supports differing conclusions,

the judge must instruct on each. Id. (Emphasis added). This language indicates that there needs

to be some affirmative evidence to convict on the lesser-included charge in order to mandate an

instruction on that lesser-included charge. Bass testified that Defendant hit him on the head with

the glass vodka bottle and that it broke. Coleman testified that Defendant hit Bass four or five

times with the glass vodka bottle and that it shattered. Detective Louis Bouwman of the St.

Louis County Police Department testified that he arrived on the scene of the incident within two

minutes of the 911 call and that Bass was bleeding from his forehead and upset, visibly shaken.

Defendant’s version of events was that Bass jumped out of a closet with a gun and attacked him,

apparently high on PCP. He stated that the gun went off, they wrestled and Defendant pushed

Bass back into the closet. He said that he heard Bass moving, so he grabbed his glass vodka

bottle and he threw it at Bass and the bottle shattered against the wall. The conflicting evidence,

of which the jury could choose to believe some, all, or none, supports an inference that

Defendant knowingly caused physical injury to Bass by shattering a glass bottle on his head, that

is, his conduct of shattering a glass bottle on Bass’s head was “practically certain” to cause

                                                 6
physical injury as defined by section 556.061(2). Based on Defendant’s testimony, there was

evidence from which the jury could have believed that he committed no crime at all and did not

shatter the glass bottle on Bass’s head, but rather against the wall. However, there is no evidence

that supports an inference that Defendant recklessly caused physical injury to Bass, that is he

merely consciously disregarded a substantial and unjustifiable risk that Bass would suffer

physical injury by shattering a glass bottle on his head. The trial court did not err in refusing to

submit Defendant’s proposed Instruction “A” to the jury. Point denied.

        In his second point relied on Defendant argues that the trial court erred, or in the

alternatively, plainly erred in excluding evidence of Bass’s reputation for violence because

exclusion violated his constitutional rights to due process, a fair trial, and to present a defense.

Defendant avers that evidence of Bass’s alleged reputation for violence was relevant and

material to his theory of self-defense as to Counts III and IV as his reputation tended to show that

Bass was the initial aggressor and Defendant acted in lawful self-defense. He claims that his

trial counsel made an adequate offer of proof, and alleges that the exclusion of this evidence

prejudiced him by depriving him of the chance to fully present his case for lawful self-defense to

the jury.

        The State made several motions in limine, one of which was to exclude evidence about

Bass’s use of PCP and violent reputation, which Defendant did not learn about until after the

incident. The State asserted that this evidence from several witnesses was irrelevant. The trial

court agreed and sustained the State’s motion to exclude such evidence. Defendant did not make

an offer of proof during the evidentiary portions of the trial. Rather, it was not until the

instruction conference after the close of all evidence that Defendant’s trial counsel told the trial




                                                 7
court what her investigator had learned from one witness, Jarrick Zoumach, who had been

subpoenaed. Defendant’s trial counsel stated:

       …My investigator informed me that Mr. Zoumach did not appear in court
       yesterday, because his father advised my investigator that he was arrested the
       preceding night. Was currently incarcerated, but he didn’t know which jail he
       was in. The only thing he would have been able to say was that he knows
       Cameron Bass around the time of the incident. Cameron tried to sell Jarrick two
       guns. He knew Cameron from the Walnut Park area. Cameron carried guns, he
       carried a .38 and a .32-caliber. Cameron smokes PCP, weed and drinks, that
       would be the extent of what he informed my investigator.

Assuming arguendo that a hearsay offer of proof of a witness who apparently would not have

been available to testify would be a sufficient offer of proof, it was not timely made, and

accordingly was not preserved. Accordingly, only plain error review is possible.

       Plain errors affecting substantial rights may be considered when the court finds that

manifest injustice or miscarriage of justice has occurred Rule 30.20.     There is no manifest

injustice or miscarriage of justice. A victim’s reputation for violence, even if unknown to

the defendant, is admissible where the defendant has asserted self-defense and the evidence

is being offered to show that the victim was in fact the initial aggressor. State v. Gonzales,

153 S.W.3d 311, 312-13 (Mo. banc 2005).. Assuming the truth of all that Zoumach would

have purportedly testified about, it would only show that Bass likes to drink, that he uses

drugs, and that he owns guns. None of these things would have shown that Bass had a

reputation for violence, and accordingly it was not relevant. Point denied.

       In his third point relied on Defendant asserts that the trial court plainly erred in

holding the instruction conference without him where he did not waive his appearance at

the conference because this violated his rights to due process, a fair trial, and to appear and

defend himself. Defendant claims that the trial court was aware that he wanted to argue his

own case to the jury, yet it held the instruction conference without him, and he was

                                                8
substantially prejudiced because this deprived him of any meaningful opportunity to

provide input on the jury instructions, it failed to give him adequate notice regarding which

instructions were being submitted and which ones were refused, and otherwise deprived

him of the opportunity to present his defenses, as opposed to the defenses presented by his

trial counsel.

       Defendant concedes that this claim of error was not preserved, and requests plain

error review by this Court. As previously noted, this Court may consider plain error review

when it finds that a manifest injustice or miscarriage of justice has occurred. Rule 30.20.

Plain error review is discretionary. State v. McCleary, 423 S.W.3d 888, 896 (Mo. App.

2014). Plain error is error that is clear, evident, and obvious, and whether such error exists

is based on the facts and circumstances of each case. Id. The purported error must have

had a decisive effect on the jury’s determination. Id.

       We apply the plain-error rule sparingly, and it does not justify appellate review of

every claim that has not been properly preserved. Id. Plain-error review is a two-step

process. Id. In the first step, we determine if the asserted claim of plain error facially

establishes substantial grounds to believe that a manifest injustice or miscarriage of justice

has occurred. Id. If we find that there are facially substantial grounds, then we proceed to

the second step of the analysis, and engage in plain error review to determine if a manifest

injustice miscarriage of justice actually occurred. Id.

       In the present case the record is devoid of any request by Defendant or his trial

counsel that he be present at the instruction conference. The record is also absent of any

action by the trial court to exclude Defendant from the instruction conference. Defendant

avers that if he had been at the instruction conference he could have requested that the term



                                              9
“knowingly” be defined in the Instruction No. 10, the verdict director for the second degree

assault count. He does not show how this would have changed the outcome, given that

“knowingly” is a term within the comprehension of the ordinary reasonable juror and that

his defense was that he did not strike Bass over the head with a glass bottle, but rather

threw it at him, shattering it on the wall and not on Bass’s head. Defendant also asserts

that if he had been at the instruction conference he could have requested an instruction on

third degree assault using language that the jury could find him guilty of third degree

assault if the jurors believed beyond a reasonable doubt that he “attempted to cause

physical injury to Cameron Bass by shattering a glass bottle on his head,….” Defendant

posits that the trial court could not have refused to submit an instruction on third degree

assault as a lesser included charge using this language. The trial court still could have

refused such an instruction. Defendant testified that he did not strike Bass with the glass

bottle, not that he struck him in the head with a glass bottle and tried to cause physical

injury to him, but failed to do so. In addition, Bass was injured, suffering at the very least

a cut from the glass bottle. Defendant also does not show how his alleged lack of notice

about the instructions, those submitted and those refused, altered the outcome. Nothing in

the record indicates that he lacked time to prepare his closing argument or that he wanted

additional time, or that his argument would have been different from his assertion that he

was acting in self-defense. Defendant does not show how he was unable to argue his own

defenses, as opposed to those articulated by his trial counsel, or how being at the

instruction conference would have enabled him to fully present his defenses. He merely

makes conclusory allegations.       Nothing in the record shows that Defendant suffered a

manifest injustice. Point denied.



                                              10
       The judgment of the trial court is affirmed.



                                     _____________________________________
                                     CLIFFORD H. AHRENS, Judge

Glenn A. Norton, J., concurs.
Lawrence E. Mooney, P.J., dissents in separate opinion.




                                                11
                      In the Missouri Court of Appeals
                              Eastern District
                                             DIVISION ONE

STATE OF MISSOURI,                                      )        No. ED99137
                                                        )
                             Respondent,                )        Appeal from the Circuit Court
                                                        )        of St. Louis County
vs.                                                     )
                                                        )        Honorable Robert S. Cohen
ANWAR RANDLE,                                           )
                                                        )
                             Appellant.                 )        Filed: October 7, 2014

                                                  DISSENT

           I find it difficult to know what thoughts pass through another’s mind. I certainly

lack the State’s clairvoyance in appellate fact-finding and inference-drawing. Thus, I will

assume that the State’s failure to adhere to the binding precedents of our Supreme Court

is the result of mere recklessness.

           The State acknowledges that the defendant timely requested the instruction on

assault in the third degree, and that a basis exists in the evidence for acquitting him of

assault in the second degree. Thus, the sole remaining issue is whether a basis exists in

the evidence for convicting the defendant of assault in the third degree. Sec. 556.046.3

RSMo. (Supp. 2013);1 State v. Jackson, 433 S.W.3d 390, 396 (Mo. banc 2014).




1
    All statutory references are to RSMo. (2000) except as otherwise indicated.
         Here, the defendant asked that the jury be instructed on the alternative submission

that he recklessly caused physical injury to the victim. The State concedes that sufficient

evidence exists to convict the defendant of assault in the third degree. Indeed, the State

also acknowledges that Section 562.021.4 conclusively provides that “[w]hen

recklessness suffices to establish a culpable mental state, it is also established if a person

acts purposely or knowingly.”

         Thus, the State boldly argues, although substantial evidence exists that the

defendant committed assault in the third degree, no basis exists for convicting the

defendant of assault in the third degree. I do not even understand the State’s argument.

How can it be that substantial evidence of a crime exists, but no basis exists for

conviction? It seems a mere subterfuge to avoid submitting the question of the

defendant’s mental state to the trier of fact for resolution. In State v. Jackson, our

Supreme Court held that the jury had an unfettered right not to infer the presence of a

differentiating factual element.2 Id. at 401. Thus, the defendant had a right to have the

jury consider a lesser-included offense. Id. at 392. Remarkably, here the State would

deny the jury the right not to infer the presence of a differentiating mental element.3 As

in Jackson, the defendant had a right to have the jury consider the lesser-included

offense.



2
  If the State believes Jackson is incorrectly decided, its remedy is to ask our Supreme Court to revisit the
question, or to ask the legislature to amend the statutory scheme. The State’s remedy is not to ask this
Court to rely on a distinction without a difference.
3
  The State also misunderstands the meaning of recklessness. The fact that a defendant may have
intentionally performed an act is not inconsistent with recklessness. A defendant may exhibit recklessness
that “circumstances exist or a result will follow.” Sec. 562.016.4. The defendant here asserted self-
defense. As our Supreme Court instructed, “reckless conduct is not inconsistent with the intentional act of
defending one’s self, if in doing so one uses unreasonable force.” State v. Beeler, 12 S.W.3d 294, 299 (Mo.
banc 2000). See also State v. Thomas, 161 S.W.3d 377 (Mo. banc. 2005); State v. Pulley, 356 S.W.3d 187
(Mo. App. E.D. 2011).

                                                     2
       I conclude it was error to fail to submit the lesser-included offense of assault in

the third degree. Thus, I would reverse the conviction for assault in the second degree.

Further, because of this error with the predicate offense of felony assault, I would also

reverse the accompanying conviction for armed criminal action. I would remand these

counts for a new trial before a correctly-instructed jury.

       I respectfully dissent.



                                 cV& WAlVU
                                   W
                                 LAWRENCE E. MOONEY, PRESflDrNG JUDGE
