               In the Missouri Court of Appeals
                                 Western District

STATE OF MISSOURI,                       )
                            Respondent, )
v.                                       )
                                         )           WD76255
BRANDON M. ROBERTS,                      )
                              Appellant. )           FILED: November 18, 2014

     APPEAL FROM THE CIRCUIT COURT OF BUCHANAN COUNTY
               THE HONORABLE PATRICK K. ROBB, JUDGE

         BEFORE DIVISION ONE: THOMAS H. NEWTON, PRESIDING JUDGE,
          LISA WHITE HARDWICK AND ANTHONY REX GABBERT, JUDGES

      Brandon Roberts appeals from his convictions for second-degree domestic

assault and victim tampering. He contends the circuit court erred in refusing his

proposed instruction for the lesser included offense of third-degree domestic

assault. He also asserts that the court erred in permitting the State to join his

charges and abused its discretion in overruling his motion to sever.

      We find that Roberts was entitled to have the jury instructed on the lesser

included offense of third-degree domestic assault. Therefore, his second-degree

domestic assault conviction is vacated. Because second-degree domestic assault

was the underlying crime on his victim tampering conviction, we must also vacate
the victim tampering conviction. The case is remanded to the circuit court for

further proceedings.

                         FACTUAL AND PROCEDURAL HISTORY

      In June 2012, A.A. and her three children were living with Roberts and his

daughter. A.A. had a close relationship with Roberts's daughter and had raised her

"like she was one of [her] own kids."

      On June 3, 2012, A.A. and Roberts argued. They had not been getting

along in the month prior to that date. A.A. was unemployed, and her

unemployment was a point of contention between her and Roberts. A.A. had

received some food stamps that day, so she asked Roberts if she could use his

truck to go to the grocery store. Roberts was in the shower at the time and told

her, "No." When A.A. told him she was going anyway, Roberts ripped down the

shower curtain, and they began to fight.

      Roberts got out of the shower and hit A.A. A.A. picked up the shower

curtain rod and tried to hit him with it to defend herself. Roberts and A.A. were

screaming at each other, and Roberts was hitting and punching A.A. in the back of

her head. At one point, Roberts grabbed the shower curtain rod and hit A.A. with

it.

      The fight ended. A.A. left the bathroom, took Roberts's truck keys, and

threw them out the back door. Roberts went outside to look for the keys. The

children, who were in the house during the fight, were screaming and crying. They

went outside to help Roberts look for the truck keys. Roberts did not find the

                                           2
keys. A.A. continued to yell and scream at Roberts, and she told him that she was

calling the police.

       Roberts went back inside the house. He and A.A. began fighting again and

punching each other. Roberts had picked up a hammer in the backyard, but A.A.

did not know whether he was still holding it when he came back inside the house.

Roberts pinned A.A. against the washing machine. He continued to hit A.A. on the

back of her head as she was lying across the top of the washing machine with her

back to him. After Roberts hit A.A. a couple more times, he went to put on the

rest of his clothes.

       A.A. went out the front door to find the children. Roberts grabbed his

daughter and left. A.A.'s children were at a neighbor's house. One of A.A.'s

children, K.A., had run to the neighbor and told her, "Brandon's beating my

mommy with a hammer." The neighbor described K.A. as "hysterical" and said

that she was "crying" and "screaming." The neighbor called the police. Before

Roberts left with his daughter, he had asked the neighbor to "give him a ride out of

there." The neighbor declined, saying that she "didn't want to get in the middle of

it." When A.A. came to the neighbor's house to retrieve her children, the neighbor

noticed that A.A. had "a bunch of red marks on her neck and one of her arms."

She also noticed that A.A. had a knot on the back of her head.

       A.A. gave her statement to a police deputy and showed the deputy her

injuries. The deputy observed red marks and small scratches on A.A.'s head,

including a red mark in the middle of her forehead that was "slightly raised up," like

                                          3
it had been inflicted recently. The deputy photographed A.A.'s injuries and the

scene. Some of the photos showed an earring on top of the washing machine and

a hammer on the ground in the back yard.

      Later that day, A.A. spoke to Roberts on the telephone. They agreed to

meet, and for the next several days, their relationship was "great." They stayed at

motels so that they "could be together" and avoid the police, who were looking for

him. They took their children to the zoo and spent time together. After about a

week, they returned home. The police eventually arrested Roberts, and the State

charged him with second-degree domestic assault.

      After his arrest, Roberts spoke to A.A. by telephone several times. He told

her to "get him out" and to say that "it didn't happen." On one occasion, they

discussed having her say that she "got in a fight with a girl." Roberts also wrote

A.A. several letters, and in one letter, he asked her to say that the incident "didn't

happen."

      During a phone conversation toward the end of June or beginning of July,

Roberts told A.A. to "plead the Fifth." At one point, A.A. agreed to do that

because she loved Roberts. She also agreed to lie or to make up a story because

she wanted to "be with him and his daughter." From June to August, Roberts

made 45 phone calls to A.A., all of which were recorded. Based on Roberts's

communications with A.A., the State charged him with victim tampering.

      Before trial, the State moved to join Roberts's charges. The circuit court

granted the motion. After the court joined the charges, the State filed an amended

                                           4
information charging Roberts, as a persistent offender, with second-degree

domestic assault, in violation of Section 565.073, RSMo 2000, and victim

tampering, in violation of Section 575.270, RSMo Cum. Supp. 2013. Roberts later

moved to sever the charges, but the court denied his motion.

      A jury trial was held. Roberts's defense was that he acted in self-defense,

and the court instructed the jury on self-defense. The court refused Roberts's

proposed instruction on the lesser included offense of third-degree domestic

assault.

      The jury found Roberts guilty of both charges. The court sentenced Roberts

to consecutive sentences of five years in prison for second-degree domestic assault

and two years in prison for victim tampering. Roberts appeals.

                                      ANALYSIS

Refusal to Give Lesser Included Offense Instruction

      In Point I, Roberts contends the circuit court erred in refusing to give his

proposed instruction on the lesser included offense of third-degree domestic

assault. He argues that there was a basis in the evidence for acquitting him of the

higher offense and convicting him of the lesser included offense because the jury

could have found that he recklessly injured A.A. in a case of imperfect self-

defense.

      Our review of the circuit court's decision to give or refuse a requested jury

instruction under Section 556.046, RSMo Cum. Supp. 2013, is de novo. State v.

Jackson, 433 S.W.3d 390, 395 (Mo. banc 2014). "[I]f the statutory requirements

                                          5
for giving such an instruction are met, a failure to give a requested instruction is

reversible error." Id. (footnote omitted).

       The court instructed the jury on second-degree domestic assault, which

required the jury to find that: (1) Roberts knowingly caused physical injury to A.A.

by punching her; (2) A.A. and Roberts were adults who had been in a continuing

social relationship of a romantic or intimate nature.1 The proposed third-degree

domestic assault instruction would have required the jury to find that: (1) Roberts

recklessly caused physical injury to A.A. by punching her; and (2) A.A. and Roberts

were adults who had been in a continuing social relationship of a romantic or

intimate nature.

       Both the second-degree and third-degree domestic assault instructions would

have required the jury to find the same type of injury and conduct. The distinction

between the two instructions is that the second-degree domestic assault

instruction required the jury to determine whether Roberts "knowingly" caused

physical injury to A.A., while the third-degree domestic assault instruction would

have required the jury to determine whether Roberts "recklessly" caused the

physical injury. A person "acts knowingly" "[w]ith respect to a result of his

conduct when he is aware that his conduct is practically certain to cause that

result." § 562.016.3(2), RSMo 2000. A person "acts recklessly" "when he

consciously disregards a substantial and unjustifiable risk . . . that a result will



1
 Because Roberts asserted that he acted in self-defense, the State was also required to prove that
he did not act in lawful self-defense as submitted in a separate instruction.

                                                 6
follow, and such disregard constitutes a gross deviation from the standard of care

which a reasonable person would exercise in the situation." § 562.016.4.

      Under Section 556.046, the circuit court is required to give an instruction on

a lesser included offense when each of these requirements is met: "a. a party

requests the instruction; b. there is a basis in the evidence for acquitting the

defendant of the charged offense; and c. there is a basis in the evidence for

convicting the defendant of the lesser included offense for which the instruction is

requested." Jackson, 433 S.W.3d at 396 (footnote omitted). "'Doubts concerning

whether to instruct on a lesser included offense should be resolved in favor of

including the instruction, leaving it to the jury to decide.'" State v. Williams, 313

S.W.3d 656, 660 (Mo. banc 2010) (quoting State v. Derenzy, 89 S.W.3d 472,

474-75 (Mo. banc 2002)).

      Applying the three requirements to this case, the State concedes that

Roberts timely requested the third-degree domestic assault instruction. Roberts

initially requested the lesser included offense instruction before trial, and he

renewed his request at the time of the instructions conference.

      The State also concedes that there was a basis in the evidence for acquitting

Roberts of second-degree domestic assault. In discussing this requirement in

Jackson, 433 S.W.3d at 399, the Supreme Court found that there is a basis to

acquit the defendant of the greater offense in virtually every case. This is because

"the jury's right to disbelieve all or any part of the evidence and its right to refuse

to draw needed inferences is a sufficient basis in the evidence -- by itself -- for a

                                           7
jury to conclude that the state has failed to prove the differential element [between

the greater and lesser offenses]." Id. The Court further explained that the jury's

right to disbelieve all or any part of the evidence and to refuse to draw inferences

constitutes a sufficient basis for acquittal regardless of the strength of the State's

case:

        No matter how strong, airtight, inescapable, or even absolutely certain
        the evidence and inferences in support of the differential element may
        seem to judges and lawyers, no evidence ever proves an element of a
        criminal case until all 12 jurors believe it, and no inference ever is
        drawn in a criminal case until all 12 jurors draw it.

Id. at 400. Accordingly, there was a basis to acquit Roberts of second-degree

domestic assault because the jury did not have to believe that he punched A.A.,

and the jury did not have to believe or infer that, by doing so, he knowingly caused

physical injury to her.

        The issue in this case is whether the third requirement for instructing on a

lesser included offense was satisfied, that is, whether there was a basis in the

evidence for convicting Roberts of the lesser included offense of third-degree

domestic assault. Roberts contends there was such a basis because the jury could

have believed that he caused physical injury to A.A. recklessly, rather than

knowingly, in a case of imperfect self-defense. Specifically, he argues that the jury

could have found that he was acting in defense of himself when he punched A.A.

and yet also believed that his conduct was too reckless to excuse as lawful self-

defense. In response, the State argues that there was no evidence to support an

inference that Roberts was reckless, because there was no affirmative evidence

                                           8
that, in punching A.A., he was consciously disregarding a substantial risk of

unlawfully causing some physical pain and that his disregard was a gross deviation

from the standard of care that a reasonable person would exercise in that situation.

      Roberts asserts that no additional evidence was required to establish

recklessness because third-degree assault is a "nested" lesser included offense of

second-degree assault. The Supreme Court explained the concept of "nested"

lesser included offenses in Jackson. The defendant in Jackson was charged with

first-degree robbery, which required the jury to find that he took the victim's

property by force and that the victim reasonably believed that he was using or

threatening to use a weapon. Id. at 394. The circuit court declined the

defendant's request to instruct the jury on the lesser included offense of second-

degree robbery, which required the jury to find only that he took the victim's

property by force. Id.

      On appeal, the Supreme Court reversed, finding that all three requirements

for instructing on the lesser included offense had been met. Id. at 396-409. In

discussing the third requirement -- whether there was a basis for convicting the

defendant of the lesser offense -- the Court noted that first-degree and second-

degree robbery require proof of the same elements, that is, proof of whether the

defendant took the victim's property by force. Id. at 404. The only differential

element between the two offenses is whether the victim reasonably believed that

the defendant was using or threatening to use a weapon, which is a required

element of only first-degree robbery. Id. Hence, the Court found that second-

                                          9
degree robbery is a "nested" lesser included offense of first-degree robbery,

because it is comprised of a subset of the elements of first-degree robbery. Id.

      The Court explained that, where nested lesser included offenses are

involved, "'it is impossible to commit the greater without necessarily committing

the lesser.'" Id. (citation omitted). This is because "[a]ny evidence that is

sufficient to prove the elements of the charged offense must necessarily be

sufficient to prove a crime that is comprised of a subset of those same elements,

i.e., a 'nested' lesser offense." Id. at 405. Therefore, because there was

sufficient evidence in Jackson from which the jury could find that the defendant

committed first-degree robbery by taking the victim's property by force and using

or threatening to use a gun, the evidence was necessarily sufficient to prove that

the defendant committed second-degree robbery by simply taking the victim's

property by force without using or threatening to use a gun. Id.

      The Court noted that this reasoning also applied to require the court to give

the requested instruction for the nested lesser included offense in Jackson's

companion case, Pierce v. State, 433 S.W.3d 424 (Mo. banc 2014). Jackson,

433 S.W.3d at 405. Because the evidence in Pierce was sufficient to prove that

the defendant, who was found in possession of cocaine base, committed second-

degree trafficking in that the controlled substance weighed two or more grams, the

evidence had to be sufficient to prove the nested lesser included offense of

possession, which includes all of the elements of second-degree trafficking except




                                         10
evidence of the controlled substance's weight. Id. (citing Pierce, 433 S.W.3d at

432).

        The State contends this case is distinguishable from Jackson and Pierce.

The State argues that, unlike in Jackson and Pierce, the lesser included offense in

this case is not nested because it is not merely the absence of one element that

differentiates the lesser offense from the greater. Rather, the difference between

third-degree domestic assault and second-degree domestic assault is the

substitution of one element for another, namely, the mental state of "recklessly"

for "knowingly." Thus, the State argues that affirmative evidence that Roberts

acted recklessly was required to support an instruction for third-degree domestic

assault. We disagree.

        Although "knowingly" and "recklessly" are different mental states, Section

562.021.4, RSMo 2000, provides that each culpable mental state is included in

higher mental states. Section 562.021.4 states, in pertinent part, "When

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

person acts purposely or knowingly." The drafters discussed the intended purpose

of this provision in Section 562.021's Comment to 1973 Proposed Code:

               Subsection [4]2 makes it clear that the culpable mental states
        are "graded", that is, each mental state is included in the higher
        mental states. This is useful in grading offenses (making it possible to
        convict for lesser included offenses) and also avoids the argument that
        something was not done recklessly because it was done knowingly or
        purposely.

2
  When Section 562.021 was originally enacted, this provision was numbered as subsection 3. The
1993 amendment renumbered this provision as subsection 2, and the 1997 amendment renumbered
it as subsection 4.

                                              11
      Thus, while "recklessly" and "knowingly" are differently-defined mental

states, Section 562.021.4 expressly provides that "knowingly" encompasses

"recklessly." Stated another way, where the evidence is sufficient to prove that

the defendant was aware that his conduct was practically certain to cause a

particular result ("knowingly caused"), there is no need for additional proof that the

defendant consciously disregarded a substantial and unjustifiable risk that a result

would follow and that such disregard constituted a gross deviation from the

standard of care which a reasonable person would exercise in the situation

("recklessly caused"). Under Section 562.021.4, evidence establishing that the

defendant "knowingly" caused a result automatically establishes that the defendant

"recklessly" caused that result. Consequently, like the offenses in Jackson and

Pierce, it is impossible to commit the greater offense of second-degree domestic

assault without necessarily committing the lesser offense of third-degree domestic

assault. See Jackson, 433 S.W.3d at 404.

      The State concedes that, if the third-degree assault instruction had been

submitted and the jury had found Roberts guilty of it, evidence showing that he

acted knowingly would have supported the conviction for third-degree assault as a

matter of law under Section 562.021.4. Nevertheless, the State argues that it is

"questionable" whether evidence that Roberts acted knowingly also obligates the

circuit court to instruct the jury on a lesser included offense that requires only that

he acted recklessly. The State asserts that, if the basis for acquitting on the



                                          12
greater offense is the jury's disbelief of the knowingly evidence, then that same

evidence should not then be relied on to provide a basis for convicting on the lesser

offense.

      A basis for acquitting on the greater offense exists not simply because the

jury can disbelieve all of the State's evidence on the differential element; rather,

the basis for acquitting on the greater offense exists because the jury can

disbelieve "all or any part" of the State's evidence on that element. Jackson, 433

S.W.3d at 399 (emphasis added). The jury could have disbelieved all or any part of

the evidence that established that Roberts acted knowingly. Thus, instead of

inferring from the evidence that Roberts, in intentionally hitting A.A., was aware

that his conduct was practically certain to cause A.A. physical injury, the jury could

have inferred only that Roberts, in intentionally hitting A.A., consciously

disregarded a substantial and unjustifiable risk that his doing so would cause her

physical injury and that such disregard constituted a gross deviation from the

standard of care which a reasonable person would exercise in the situation.

Because the evidence was sufficient to prove that Roberts acted with the higher

mental state of knowingly, the evidence was necessarily sufficient, pursuant to

Section 562.021.4, to prove that he acted with the lower mental state of

recklessly.

      We recognize that the Eastern District of this court recently decided a case

that supports the State's position. In State v. Randle, No. ED 99137, 2014 WL

4980347, at *1-2 (Mo. App. Oct. 7, 2014), the defendant was convicted of

                                          13
second-degree assault for knowingly causing physical injury to the victim by

shattering a bottle on the victim's head. The circuit court had refused to give his

requested third-degree assault instruction, which would have required the jury to

find that he recklessly caused physical injury to the victim. Id. at *2-3.

      On appeal, the defendant in Randle argued that there does not have to be

any affirmative evidence to support an instruction for a lesser included offense. Id.

at *3. To support his argument, the defendant relied on State v. Pond, 131

S.W.3d 792 (Mo. banc 2004), a case in which the Supreme Court overruled prior

case law that required the defendant to present "'some affirmative evidence of a

lack of an essential element of the higher offense which would not only authorize

acquittal of the higher but sustain a conviction of the lesser.'" Pond, 131 S.W.3d

at 794 (quoting State v. Olson, 636 S.W.2d 318, 322 (Mo. banc 1982). The

Court in Pond held that, because the jury may accept or reject any part of the

evidence, "[i]f the evidence supports differing conclusions, the judge must instruct

on each." Id.

      A majority of the panel in Randle rejected the defendant's argument. The

majority acknowledged the Supreme Court's observation in Jackson that a lesser

included offense instruction is "'nearly universal, at least where the differential

element is one for which the state bears the burden of proof.'" Randle, 2014 WL

4980347 at *3 (quoting Jackson, 433 S.W.3d at 399 (emphasis added)). The

majority explained, however, that the term "differential element" in Jackson refers

only "to an additional element that is part of the greater offense that is not an

                                          14
element of the lesser-included offense." Id. The majority found that the term

"differential element" "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." Id. The

majority in Randle concluded that, where the difference between the greater and

the lesser charge is a different mental element, "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." Id. at *4.

      In examining the evidence in Randle, the majority found that the jury could

either believe that the defendant knowingly caused physical injury by shattering the

bottle on the victim's head or believe that the defendant did not shatter the bottle

on the victim's head and, therefore, committed no crime. Id. Because there was

no affirmative evidence from which the jury could infer that the defendant

recklessly caused physical injury by shattering the bottle on the victim's head,

however, the majority concluded that the circuit court did not err in refusing to

submit the defendant's proposed third-degree assault instruction. Id. In so

holding, the majority did not cite or discuss Section 562.021.4's provision that

evidence establishing that the defendant acted knowingly also establishes that the

defendant acted recklessly.

      The dissent in Randle did discuss Section 562.021.4. Randle, 2014 WL

4980347 at *7 (Mooney, P.J., dissenting). The dissent noted that the State

conceded, as it does in our case, that there was sufficient evidence to convict the

                                         15
defendant of third-degree assault because of Section 562.021.4's provision that

recklessly is established if knowingly is established. Randle, 2014 WL 4980347 at

*7. Moreover, the dissent reasoned that, because Jackson holds that the jury has

"an unfettered right not to infer the presence of a differentiating factual element,"

the jury should not be denied "the right not to infer the presence of a differentiating

mental element." Id. (footnotes omitted). The dissent asserted that to hold

otherwise would be "to rely on a distinction without a difference." Id. at *7 n.2.

       We decline to follow the majority opinion in Randle.3 As noted, the majority

opinion does not address the impact on the analysis of Section 562.021.4's

express provision that evidence of knowingly establishes recklessly. Moreover, the

majority's holding that "there needs to be some affirmative evidence" to convict on

a lesser included offense with a different mental state appears to run afoul of

Jackson. In Jackson, the Supreme Court was quite clear that the defendant is not

required to introduce affirmative evidence, or to even challenge the State's

evidence, in order to refute the greater offense or to support the lesser offense:

       Now, the Court holds expressly what Pond and Williams only may
       have implied: a defendant not only does not need to introduce
       affirmative evidence, he does not have to "cast doubt" over the
       state's evidence via cross-examination or explain to the judge or jury
       precisely how or why the jury can disbelieve that evidence and so
       acquit him of the greater offense and convict him of the lesser. To
       the extent Olson or any other case suggests otherwise, it no longer
       should be followed.




3
 Pursuant to Western District Rule XXXI, this opinion was reviewed and approved by the court en
banc.

                                               16
Jackson, 433 S.W.3d at 401-02 (emphasis added). Instead, the Court in Jackson

reaffirmed that the jury's prerogative to determine which evidence to accept or

reject is, by itself, sufficient to justify giving the lesser included offense instruction:

        [T]he jury's right to disbelieve all or any part of the evidence, and its
        right to refuse to draw any needed inference, is a sufficient basis in
        the evidence to justify giving any lesser included offense instruction
        when the offenses are separated only by one differential element for
        which the state bears the burden of proof.

Id. at 401.4

        Roberts was entitled to have the jury instructed on the lesser included

offense of third-degree domestic assault. Therefore, his second-degree domestic

assault conviction is vacated. The victim tampering conviction must also be

vacated, because the second-degree assault was the underlying crime for the

victim tampering. See State v. Owens, 270 S.W.3d 533, 540-42 (Mo. App.

2008). Point I is granted.

Propriety of Joinder and Denial of Motion to Sever

        Because it is likely to recur on remand, we will address Roberts's Point II. In

this point, Roberts contends the circuit court erred in joining the domestic assault

and victim tampering charges. He further argues that he was substantially

prejudiced by the court's failure to sever the offenses, because the jury was likely

to consider the evidence of tampering in considering whether he was guilty of

domestic assault.

4
 The Court in Jackson recognized that the effect of its decision "likely will be that lesser included
offense instructions will be given virtually every time they are requested" and that "trial courts likely
will give such instructions even when not requested simply to avoid the possibility of post-
conviction claims." Id. at 402.

                                                   17
      The propriety of joinder is a question of law. State v. McKinney, 314

S.W.3d 339, 341 (Mo. banc 2010). "Liberal joinder of criminal offenses is

favored." Id. Rule 23.05 sets forth when criminal offenses may be joined:

      All offenses that are of the same or similar character or based on two
      or more acts that are part of the same transaction or on two or more
      acts or transactions that are connected or that constitute parts of a
      common scheme or plan may be charged in the same indictment or
      information in separate counts.

Section 545.140.2, RSMo 2000, also provides for joinder of offenses:

      [T]wo or more offenses may be charged in the same indictment or
      information . . . if the offenses charged . . . are of the same or similar
      character or are based on the same act or transaction or on two or
      more acts or transactions connected together or constituting parts of
      a common scheme or plan.

      Roberts asserts that the charges against him should not have been joined

because they were not part of the same transaction, a common scheme or plan, or

of the same or similar character. Such an argument fails "to give effect to all the

provisions for joinder under Rule 23.05 and section 545.140.2." McKinney, 314

S.W.3d at 341. Specifically, Roberts ignores that both the rule and the statute

permit joinder where offenses are "connected." Offenses can be connected "'by

their dependence and relationship to one another.'" Id. (quoting State v. Morrow,

968 S.W.2d 100, 109 (Mo. banc 1998)).

      Roberts's crimes were plainly connected. It was while Roberts was in jail,

charged with domestic assault, that he tampered with the victim of that domestic

assault and attempted to persuade her not to testify against him at the domestic

assault trial. Roberts's tampering would not have occurred but for the domestic

                                          18
assault, and his tampering tended to show his consciousness of guilt of the

domestic assault.5 The crime of victim tampering was dependent upon and related

to the crime of domestic assault. Therefore, the crimes were connected, and

joinder was proper. See id. at 341-42 (rejecting the defendant's claim that the

charge for his attempted escape from jail nine weeks after he committed two

murders was improperly joined with the murder charges).

       "Even where joinder is proper, however, severance may be necessary to

prevent substantial prejudice to the defendant that could result if the charges are

not tried separately." Id. at 342. The circuit court has discretion to decide

whether to grant a defendant's motion to sever, and we will reverse the court's

decision to deny severance only if the court abused its discretion and there was a

clear showing of prejudice. Id.

       To determine whether severance is required, the court is to consider "'the

number of offenses joined, the complexity of the evidence, and the likelihood that

the jury can distinguish the evidence and apply it, without confusion, to each

offense.'" Id. (quoting Morrow, 968 S.W.2d at 109). "Severance is proper only

after the defendant 'makes a particularized showing of substantial prejudice if the

offense is not tried separately' and after the 'court finds the existence of a bias or

discrimination against the party that requires a separate trial of the offense.'" Id.


5
  "'Conduct and declarations of a defendant that are relevant to show a consciousness of guilt or a
desire to conceal the offense are admissible because they tend to establish the defendant's guilt of
the charged crime.'" State v. Cannon, 215 S.W.3d 295, 301 (Mo. App. 2007) (quoting State v.
Barton, 998 S.W.2d 19, 28 (Mo. banc 1999)). Thus, evidence that the defendant tampered with a
witness to the crime has been found admissible in the defendant's trial for that crime. See, e.g.,
Cannon, 215 S.W.3d at 301, and State v. White, 870 S.W.2d 869, 875 (Mo. App. 1993).

                                                19
(quoting Rule 24.07). "Any prejudice from joinder may be overcome where the

evidence with regard to each crime is sufficiently simple and distinct to mitigate the

risks of joinder." Id. (internal quotation marks and citations omitted).

      In this case, the evidence of the two offenses was simple. It would not

have been difficult for the jury to consider evidence of each crime and make an

appropriate determination of Roberts's guilt. Moreover, there was no risk that the

jury improperly considered evidence of "other crimes not properly related to the

cause on trial," as Roberts asserts. To the contrary, because Roberts's crimes

were so closely connected, it was entirely proper, and even necessary, for the jury

to consider both crimes.

      With regard to the victim tampering charge, the jury necessarily had to

consider whether Roberts had committed domestic assault in the second degree

because an element of victim tampering was that A.A. "was the victim of the

crime of domestic assault in the second degree that was charged as a felony on or

about June 3, 2012." Thus, if the charge of victim tampering had not been joined

with the charge of domestic assault in the second degree, the jury in the tampering

case would still have heard all of the evidence pertaining to the domestic assault

charge. Similarly, as noted supra, evidence of the victim tampering would have

been relevant and admissible in a separate trial for domestic assault because the

victim tampering showed Roberts's consciousness of guilt and legitimately tended

to prove his guilt on the domestic assault charge.




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       Because evidence of the other crime would have been admissible in separate

trials for each crime, Roberts cannot claim that he was unfairly prejudiced by a

single trial. State v. Morant, 758 S.W.2d 110, 115-116 (Mo. App. 1988). Joinder

was appropriate, and the court did not abuse its discretion in denying severance.

Point II is denied.

                                    CONCLUSION

       Roberts's convictions for domestic assault in the second degree and victim

tampering are vacated, and the case is remanded to the circuit court for further

proceedings.

                                           ____________________________________
                                           LISA WHITE HARDWICK, JUDGE

ALL CONCUR.




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