                 In the Missouri Court of Appeals
                         Eastern District
                                     DIVISION FOUR

STATE OF MISSOURI,                            )   No. ED102088
                                              )
        Plaintiff/Respondent,                 )   Appeal from the Circuit Court
                                              )   of the City of St. Louis
v.                                            )
                                              )
DRANEL CLARK,                                 )   Honorable Thomas Frawley
                                              )
        Defendant/Appellant.                  )   Filed: February 23, 2016

                                        Introduction

        Dranel Clark (Appellant) appeals from the trial court’s judgment entered after a

jury trial convicting him of assault in the second degree, armed criminal action, and

resisting arrest. We affirm.

                            Factual and Procedural Background

        The State charged Appellant, as a prior offender, with assault in the first degree

(Count I), armed criminal action (Count II), attempted robbery (Count III), armed

criminal action (Count IV), unlawful use of a weapon (Count V), and resisting arrest

(Count VI). The evidence adduced at trial, viewed in the light most favorable to the

verdict, is as follows.

        In October 2011, Edward White (White) worked at a bar doing odd jobs. At

approximately 10 p.m. on October 1, 2011, White left the bar and walked to a check

cashing place about two blocks away to get change for the bar. On his way there, White
saw a group of young men on the street that made him nervous. After getting about $200

in change, White left the check cashing place and crossed the street to avoid the group of

men he had seen earlier.

       As he crossed the street, Appellant started walking, and then running, toward him.

White was walking through a White Castle parking lot when Appellant caught him and

tried to push him into a car. White resisted.

       Appellant put a gun to White’s head and told him to “up it” which White believed

meant to give Appellant the money. Appellant put the gun to White’s temple and pulled

the trigger but White “ducked real quick” and the bullet missed him. White struggled

with Appellant and Appellant shot again, this time grazing the back of White’s head.

Appellant fired a third shot, but the gun jammed. Appellant then began hitting White in

the back of the head with the gun.

       Officer Aaron Quarles (Quarles) was driving in his patrol car when he heard a

gunshot at the White Castle approximately 100 feet away. Quarles saw two people

fighting and a muzzle flash, then heard another gunshot. Quarles pulled into the lot and

saw Appellant beating White. When Quarles told Appellant to stop, Appellant looked at

him and ran away. Quarles pursued Appellant in his vehicle, with the lights and siren

activated. Quarles saw the magazine fall out of the gun Appellant was carrying and then

saw Appellant throw the gun. Once Appellant threw the gun, Quarles exited his vehicle

and pursued Appellant on foot. Quarles ordered Appellant to stop but Appellant

continued to run until Quarles drew his firearm. Appellant then stopped and put his

hands up. When Quarles holstered his weapon, Appellant turned toward Quarles and

assumed a “fighting stance.” Quarles took out his baton and, while attempting to strike




                                                2
Appellant’s arm, hit Appellant in the head as Appellant bent over. Appellant then

complied with Quarles’ orders and was placed under arrest.

       After the altercation, White returned to the bar where someone called the police.

White received stitches for lacerations on the side of his head and over his right eye.

        The jury found Appellant guilty of the lesser-included offense of second-degree

assault (Count I), armed criminal action (Count II), unlawful use of a weapon (Count V),

and resisting arrest (Count VI). The trial court sentenced Appellant to seven years for

second-degree assault, three years for armed criminal action, and four years each for

unlawful use of a weapon and resisting arrest. The court ordered the sentences to run

concurrently except the three-year sentence for armed criminal action, which was ordered

to run consecutively to the assault charge, for a total sentence of ten years. Following

sentencing, the trial court vacated the conviction for unlawful use of a weapon by

agreement of the parties. This appeal follows.

                                      Points on Appeal

       In his first point, Appellant argues the trial court abused its discretion in failing to

grant a mistrial because the jury panel saw Appellant in restraints, without good cause,

which made Appellant appear to be dangerous and destroyed the presumption of

innocence to which he was entitled.

       In his second point, Appellant contends the trial court abused its discretion in

limiting Appellant’s defense by allowing the State to redact pages of White’s medical

records admitted into evidence which contained the results of blood tests performed on

White because the positive alcohol and cocaine blood test results were relevant and




                                              3
admissible evidence and corroborated Appellant’s defense that White was intoxicated and

attacked Appellant.

         In his third point, Appellant asserts the trial court abused its discretion in

submitting Jury Instruction 6 for assault in the second degree, in that Appellant was not

assured a unanimous verdict because the submitted instruction did not specify the

“assault” charged and did not ensure the jury would unanimously convict Appellant of

the same conduct, in that it was a disputed fact at trial whether Appellant shot at or struck

White.

                                           Discussion

                                      Point I − Restraints

         Before jury selection began, the court sent the venire panel to lunch. After

addressing several pretrial matters, the court told the deputies that if any jurors were in

the courtroom following the lunch break, the deputies should allow Appellant to walk

into the courtroom ahead of them so it would not appear that they were escorting him into

the room. After the lunch recess, defense counsel advised the court the deputies may

have escorted Appellant into the courtroom in front of the jurors:

                 [Defense Counsel]: Judge, it’s been brought to my attention they
         may have walked my client in in front of everybody. I wasn’t here so I
         don’t know.
                 The Court: I told them specifically how to do it before I left.
                 [Defense Counsel]: I wasn’t here.
                 The Court: I wasn’t specifically in the room, but I told them how to
         do it and I trust my deputies to do what I tell them to do.
                 [Defense Counsel]: Okay. I guess I don’t know how it was done,
         I’m just going by what he’s telling me, they walked in side by side with
         him. If that is the case I would request a mistrial at this point.
                 [Prosecutor]: I wasn’t here. I do know the court was very specific
         in the court’s instruction. I do know those deputies well, I would be
         shocked if it is anything other than what the court instructed them to do.
                 The Court: Your request is denied.



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       On appeal, Appellant contends the trial court erred in failing to grant his request

for a mistrial because he was denied his rights to due process of law and a fair trial before

an impartial jury, in that the venire panel knew Appellant was incarcerated and Appellant

appeared in restraints without good cause, destroying the presumption of innocence to

which he was entitled.

       Granting a mistrial is a drastic remedy employed only in the most extraordinary

circumstances. State v. Whitt, 461 S.W.3d 32, 37 (Mo. App. E.D. 2015). The trial court

is in the best position to determine whether a mistrial is appropriate. Id. We review the

denial of a motion for mistrial for abuse of discretion. Id.

       Here, nothing in the record supports Appellant’s position on appeal that he

appeared before the venire panel in restraints. The trial court record indicates only the

possibility that the deputies walked into the courtroom “side by side” with Appellant.

Appellant’s suggestion on appeal that he was shackled, or even possibly shackled, before

the venire panel is completely unsupported by the record. Furthermore, uniformed

officers escorting a defendant into the courtroom does not imply restraint and the use of

identifiable security guards in the courtroom is not inherently prejudicial. State v.

Vaughn, 271 S.W.3d 632, 633 (Mo. App. W.D. 2008). Appellant’s Point I is denied.

                         Point II – Redaction of Medical Records

       At trial, White testified he drank two to three beers on the night of the assault.

White denied having five or six beers or being intoxicated. White’s boss also testified

White did not appear to be intoxicated. During cross-examination, defense counsel

proceeded to question White about his drug use:




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              [Defense Counsel]: …Now we talked about alcohol. Were you
       under the influence of any drugs that night?
              A. No, man, I don’t use no drugs.
              Q. So you weren’t using any drugs around that time period?
              A. No.

       During a sidebar, the State argued the defense’s questioning regarding drug use

was an attempt to introduce irrelevant testimony regarding prior bad acts. A discussion

ensued about hospital records showing White had “tested positive” for cocaine on the

night of the assault. Defense counsel argued White’s denial of drug use “around that time

period” was a lie. The prosecutor argued it was unclear from the medical records when

the cocaine was ingested. Defense counsel stated he was “fine” with White’s answer.

       Before the defense’s case-in-chief, defense counsel advised the court he was

going to introduce White’s hospital records into evidence under a business-records

affidavit. The prosecutor indicated she had no objection to their admission but would

object to those portions “including prior bad conduct like we discussed, the cocaine

amount.” At the conclusion of Appellant’s case, defense counsel moved to admit the

records. The prosecutor did not object to admission of the records as long as certain

portions were redacted in the event the records were sent to the jury during deliberations.

       During deliberations, the jury sent a note to the court requesting White’s hospital

records. The prosecutor objected to the inclusion of White’s alcohol and drug testing

results. Defense counsel argued the records should be provided to the jury without

redaction because they dispute White’s testimony that he was not using drugs “around

that time period.” The court redacted the records as requested by the State before

submitting them to the jury for consideration.




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        On appeal, Appellant argues the trial court abused its discretion redacting the

blood alcohol and drug testing results from White’s medical records because the positive

alcohol and cocaine blood test results were relevant and admissible evidence as they

served to impeach White’s testimony, corroborated Appellant’s testimony that White was

intoxicated and attacked Appellant, and went to the issue of whether White accurately

recalled the incident.

        The trial court has broad discretion when ruling on the admission or exclusion of

evidence at trial, and this Court will not disturb the court’s ruling absent a showing of an

abuse of that discretion. State v. Kemp, 212 S.W.3d 135, 145 (Mo. banc 2007). “[T]hat

discretion is abused when a ruling is clearly against the logic of the circumstances and is

so unreasonable as to indicate a lack of careful consideration.” Id. We will reverse on

claims of error in the admission or exclusion of evidence only if the error was so

prejudicial that it deprived the defendant of a fair trial. Id. “Trial court error is not

prejudicial unless there is a reasonable probability that the trial court’s error affected the

outcome of the trial.” Id. at 145-46.

        With regard to White’s blood alcohol, the test revealed White had an ethanol level

of 176.0 milligrams per deciliter at 11:10 p.m. on the night of the assault. A section titled

“Interpretive Data” in the comment section indicates that “[i]f ethanol is the only drug

taken, the blood level can be roughly correlated with the clinical findings:…100-200

mg/dL Emotional instability[,] 150-200 mg/dL Confusion…”

        The drug testing records of White’s urine screen showed a “Value” of “confirmed

positive” for “cocaine metabolite” but the “Ref. Range” was “None Detected.” The

result also indicated a “Flag” of “A” and a “Status” of “C” but the records provided no




                                               7
information as to the meaning of the “Flag” or “Status.” The records subsequently stated

the “Value” for cocaine metabolite to be “Presumptive.” Under “Interpretive Data” in the

comments section, the records stated the “Immunoassay Screen cutoff level 150 ng/mL.

Drug results are to be used only for medical purposes. All results, especially

unconfirmed screening results, must not be used for non[-]medical purposes.”

       The trial court did not abuse its discretion in redacting White’s medical records

prior to submitting them to the jury. The meaning and implication of the alcohol and

drug testing records were unclear without the assistance of expert testimony to explain

the results. It is unknown what is meant by a positive result for cocaine metabolite

without a detected range. There is no evidence as to when White may have consumed the

drugs and, therefore, the test results do not impeach White’s testimony that he did not

consume drugs on the night of the assault or “around that time period.”

        There is no evidence that White’s ethanol level of 176.0 milligrams per deciliter

would impeach White’s testimony that he consumed two to three beers and was not

intoxicated on the night of the assault. Nor is there any evidence explaining the effect

this amount of ethanol in White’s blood would have had on White. Based on the

foregoing, Appellant’s Point II is denied.

                      Point III – Second-Degree Assault Instruction

       At trial, the jury was instructed on the charged offense of first-degree assault in

Instruction 5 and on the lesser-included offense of second-degree assault in Instruction 6.

       These instructions provided in relevant part as follows:

                                             Instruction 5

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



                                               8
               That on or about October 1, 2011, in the City of St. Louis, State of
       Missouri, the defendant attempted to kill or cause serious physical injury
       to Edward White by shooting at him and striking him with a gun, then you
       will find the defendant guilty under Count I of assault in the first 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 that offense.
               …

                                       Instruction 6

                As to Count I, if you do not find the defendant guilty of assault in
       the first degree as submitted in Instruction No. 5, you must consider
       whether he is guilty of assault in the second degree.
                As to Count I, if you find and believe from the evidence beyond a
       reasonable doubt:
                That on or about October 1, 2011, in the City of St. Louis, State of
       Missouri, the defendant attempted to cause physical injury to Edward
       White by means of a deadly weapon by shooting at him and striking him
       with a gun, then you will find the defendant guilty under Count I of 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 must find the
       defendant not guilty of that offense.
                …

       Defense counsel objected to Instruction 6 at trial, contending the jury may convict

Appellant of second-degree assault based on a finding Appellant either shot at or struck

White. The trial court rejected Appellant’s objection, noting both instructions required

finding Appellant both shot at and struck the victim.

       On appeal, Appellant asserts the trial court abused its discretion in submitting

Jury Instruction 6 for assault in the second degree, in that Appellant was not assured a

unanimous verdict because the instruction did not specify the assault charged and did not

ensure that the jury would unanimously convict Appellant of the same conduct.




                                             9
       The submission of or refusal to submit a tendered jury instruction is within the

trial court’s discretion. State v. Davis, 203 S.W.3d 796, 798 (Mo. App. W.D. 2006). On

appeal, we review the trial court’s decision for an abuse of that discretion. Id.

       Again, Appellant’s point on appeal is completely unsupported by the record.

Appellant attempts to liken this case to State v. Celis-Garcia, 344 S.W.3d 150, 152 (Mo.

banc. 2011), involving instructions as to seven separate incidents of statutory sodomy

which failed to differentiate the various acts in a way that ensured the jury unanimously

convicted the defendant of the same act or acts. The case sub judice is distinguishable, in

that Appellant was charged with one count of assault that occurred in one place at one

specific time.

       Instruction 6 clearly required the jury to find Appellant attempted to injure White

by “means of a deadly weapon by shooting at him and striking him with a gun” in order

to find him guilty of second-degree assault. (Emphasis added). Jurors are presumed to

follow the instructions provided. State v. Dominguez-Rodriguez, 471 S.W.3d 337, 344

(Mo. App. E.D. 2015). As such, this Court presumes the jury did not deviate from the

clearly worded instruction and, instead, presumes the jury found Appellant both shot at

and struck White with a gun in convicting him of second-degree assault. Contrary to

Appellant’s contentions otherwise, nothing in the record indicates the jury did not come

to a unanimous decision with regard to the criminal conduct supporting the conviction.

Notably, Instruction 6 effectively increased the State’s burden by requiring the jury to

find Appellant committed both acts in order to convict Appellant of second-degree

assault. See State v. Edwards, 365 S.W.3d 240, 249 (Mo. App. W.D. 2012)(submission

of verdict director requiring the jury to find two distinct acts of sodomy where one alone




                                             10
would have been sufficient to
                            o sustain con
                                        nviction incrreased the Sttate’s burdenn of proof).

The trial
    t     court did
                  d not err in submitting
                               s          In
                                           nstruction 6 on second-ddegree assauult as writtenn.

Appeellant’s Pointt III is denieed.

                                         Conclusion
                                         C

        The judgm
                ment of the trial
                            t     court is affirmed.




                                               SHERR
                                                   RI B. SULLIV
                                                              VAN, J.

Lisa S. Van Amb
              burg, C.J., annd
Kurt S. Odenwald
               d, J., concurr.




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