STATE OF MISSOURI,                              )
                                                )
                       Respondent,              )
                                                )
       vs.                                      )   No. SD35330
                                                )
DAVID JOE VANLUE,                               )   FILED: June 10, 2019
                                                )
                       Appellant.               )

         APPEAL FROM THE CIRCUIT COURT OF ST. CLAIR COUNTY
                           Honorable James R. Bickel, Judge
(Before Francis, P.J., Bates, J., and Scott, J.)
REVERSED AND REMANDED
       PER CURIAM. A jury found David Vanlue guilty of assault on a law-
enforcement officer (“ALO”) in the first degree. The state concedes that the trial
court erred in not instructing down to second-degree ALO as requested by Vanlue
and required by State v. Jackson, 433 S.W.3d 390 (Mo. banc 2014). We agree.
The sole issue on appeal is prejudice. We address applicable law first.
                         Jackson Error/Jensen Prejudice
       Per Jackson, 433 S.W.3d at 401,
             the 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.
Such lesser offenses are referred to as “nested” and consist of a subset of the
greater offense’s elements; one cannot commit the greater without committing
the lesser too. State v. Randle, 465 S.W.3d 477, 479 (Mo. banc 2015). A
defendant is entitled to a nested lesser-included offense instruction upon request.
Id.
        As noted, the state concedes trial-court error in denying Vanlue’s request
to instruct down to the nested lesser-included offense of second-degree ALO. See
Fisher v. State, 359 S.W.3d 113, 121 (Mo.App. 2011). 1 “[T]he distinguishing
element between the two crimes is that first-degree assault requires that the
defendant intended to cause death or serious physical injury to a law enforcement
officer, while second-degree assault requires that the defendant intended to cause
physical injury to a law enforcement officer.” Id. 2
        This error raises a rebuttable presumption of prejudice. State v. Jensen,
524 S.W.3d 33, 38 n.3, 40 n.5 (Mo. banc 2017). Although Jackson, the seminal
case as to error, “does not discuss the various ways the State may overcome the
presumption of prejudice,” 3 Jensen offers guidance as to a reviewing court’s
ultimate inquiry:
             [W]hen a trial court fails to instruct the jury as required by the
             MAI, such errors are presumed to prejudice the defendant
             unless it is clearly established by the State that the error did not
             result in prejudice. Likewise, in Jackson, this Court noted a
             conviction will be reversed for instructional error only if there is
             a reasonable probability that the trial court’s error affected the
             outcome of the trial. The fact that a conviction will be reversed
             only if there is a “reasonable probability” the error affected the
             outcome demonstrates the presumption of prejudice is
             rebuttable.
Id. at 38 n.3 (citation and some internal punctuation omitted). Jensen further


1 Vanlue’s incident occurred in 2015 when assaults on law-enforcement officers were governed by
§§ 565.081 & 565.082. Fisher cites those and other then-applicable statutes. Effective
January 1, 2017, such allegations would implicate the first-degree assault statute, § 565.050, with
a “special victim” enhancement for a law-enforcement officer pursuant to § 565.002.
2 “‘Serious physical injury’ is ‘physical injury that creates a substantial risk of death or that causes

serious disfigurement or protracted loss or impairment of the function of any part of the body.’”
Id. (citing then § 565.002(6)). “‘Physical injury’ is ‘physical pain, illness, or any impairment of
physical condition.’” Id. (citing then § 556.061(20)).
3 Jensen, 524 S.W.3d at 44 (Fischer, C.J., concurring and dissenting); see also Jensen principal

opinion, 524 S.W.3d at 38 (Jackson “does not expressly provide the framework for analyzing the
presumption of prejudice in cases such as this ….”); State v. Prine, 456 S.W.3d 876, 883-85
(Mo.App. 2015)(Scott, J., concurring)(Jackson did not analyze prejudice issues).
                                                   2
describes the prejudice analysis as “retrospective in that it looks back to the jury’s
verdict as an objective data point that focuses the analysis on whether ‘there is a
reasonable probability that the trial court’s error affected the outcome of the
trial.’” Id. at 40 n.5 (quoting Jackson, 433 S.W.3d at 395 n.4).
       For other legal guidance relevant to prejudice in this case, we find only our
Chief Justice’s separate opinions where he reviewed the record and, based on the
strength of the evidence, expressed his view that the state had overcome the
presumption of prejudice. 4 Finding neither approval nor disapproval of that
approach expressed elsewhere, we assume arguendo its propriety and review this
trial record accordingly.
                                      Trial Record
       This was a two-witness trial. Officer Sellers testified that he had been on
night patrol and saw Vanlue behaving strangely. The officer stopped his marked
police car, exited the vehicle in uniform, identified himself, asked Vanlue for ID,
radioed dispatch from his shoulder mic, and was told there was an active warrant
for Vanlue’s arrest. Vanlue, within earshot, pulled a butcher knife and lunged at
Officer Sellers, whose protective vest turned the knife blade away without injury.
After a struggle, the officer disarmed Vanlue, who broke free and fled, but was
arrested after a foot pursuit.
       Vanlue also testified. On direct, he acknowledged that he had been on
probation for three felonies, with an active warrant out for him, and high on meth
when this occurred. He admitted having the knife, but denied ever pulling it out
of his pocket, and described his encounter with Officer Sellers this way:
              He asked me, you know, what my name was. And, you know,
           he said he was doing pedestrian checks. And I gave him a fake
           name. And I’m thinking I’m going to jail for a concealed weapon
           anyway…. I was like, Man, I’m going to jail for concealed
           weapon. So when he asked if I had anything on me, I told him I
           had a butcher knife in my pocket. I told him, I have a butcher
           knife in my pocket. And he said, I’ll tell you what we’re going to

4 See Jensen, 524 S.W.3d at 44 (Fischer, C.J., concurring and dissenting); State v. Smith, 522
S.W.3d 221, 233 (Mo. banc 2017)(Fischer, C.J., concurring and dissenting). Cf. Meiners v.
State, 540 S.W.3d 832, 842 (Mo. banc 2018)(Fischer, C.J., concurring in result)(opining that
PCR counsel was ineffective, but prejudice not shown because record showed no reasonable
probability that jury would have “gone down” to involuntary manslaughter even with the
requested instruction).
                                              3
   do, and he went to move at all and I ran. And the knife had to
   fall out of my pocket.
His cross-examination ended this way:

   Q. There’s no doubt that you were fully aware that he was a law
   enforcement officer when this incident occurred?
   A. I knew he was.
   Q. And you admit having the knife?
   A. Yes.
   Q. You admit knowing that Don Sellers was a law enforcement
   officer?
   A. Yes, sir.
   Q. You know that you had a warrant?
   A. Yes, sir.
   Q. You didn’t want to go to prison?
   A. Yes, sir.
   Q. You’ve lied multiple times to avoid going to prison?
   A. Yeah.
   Q. But your claim is that, even though you lied about who you
   were, you were just handing the knife to -- oh, you didn’t even
   hand it, did you?
   A. I never pulled the knife out of my pocket. I’m not sure how it
   come to this.
   Q. And you don’t know how it got recovered?
   A. I know I ran behind the vehicle, and the knife, there’s no way
   it could have been found in front of the car. Why there’s not
   dash cams and vest cams to these kinds of things, I’m not sure.
   Q. So it’s somebody else’s fault?
   A. This is truly false.
   Q. Don Sellers is lying about everything?
   A. Absolutely false. He is inaccurate and lying, yes, sir.
The jury took just 16 minutes to find Vanlue guilty of first-degree ALO.



                                  4
                                   Discussion
      The state persuasively argues that the record we have summarized rebuts
any presumed prejudice. The jury plainly believed Officer Sellers and disbelieved
Vanlue as evidenced by the 16-minute verdict. It seems a stretch to think that
instructing down to second-degree ALO would have changed anything.
      Yet we cannot overlook two factors: (1) unlike many Jackson complaints,
this is not a plain-error claim, but one of timely preserved error; and (2) Vanlue
not only requested an instruction based on physical injury (as opposed to serious
physical injury), but defense counsel made a related jury argument in closing:
              I’m going to talk a minute about this jury instruction. There
          is -- the main jury instruction that you’re going to consider and
          the prosecutor laid out the basically three prongs that you have
          to find to find Mr. VanLue [sic] guilty. First, that the Defendant
          attempted to cause serious physical injury to Donald Sellers by
          attempting to stab him. And that’s definitely in dispute.
              And I would add that we -- I mean, it’s not forgone
          conclusion that this is going to cause serious physical injury. If
          you read the definitions, and that’s what we’re guided by is the
          definition and things in the instructions, the definition of
          serious physical injury is physical injury that creates a
          substantial risk of death. There wasn’t any risk of death. Or
          that causes serious disfigurement or protracted loss or
          impairment of the functions of any part of the body. Somebody
          can definitely be stabbed by this knife and be fine. Somebody
          can be cut by this knife and be fine. So I don’t think it meets
          that prong of serious physical injury.
      As unpersuasive as that argument may sound on this record, defense
counsel had a right to make it and may have done so more effectively had the
court given the “mere” physical-injury instruction Vanlue sought and Jackson
required. Long before Jackson, our supreme court emphasized that “Missouri
has traditionally placed great emphasis on legally correct instructions, and this
Court has made it clear that criminal defendants should be freely allowed to
argue their contentions arising from the facts.” State v. Westfall, 75 S.W.3d
278, 284 (Mo. banc 2002).
      Failure to give a required instruction is presumed to prejudice the
defendant unless the state clearly establishes otherwise. Id.; see also Jensen,

                                         5
524 S.W.3d at 38 n.3. Had defense counsel’s jury argument not dovetailed with
the missing instruction, or had this been a PCR case like Meiners, and certainly
had this been an unpreserved plain-error claim, we might reach a different result.
Even now it is a close call because we doubt the omitted instruction would have
changed the outcome, but we cannot say that is so clearly established that we
must not give Vanlue the benefit of the doubt. We reverse the judgment and
remand for further proceedings.




                                        6
STATE OF MISSOURI,                                          )
                                                            )
                             Respondent,                    )
                                                            )
           vs.                                              )    No. SD35330
                                                            )
DAVID JOE VANLUE,                                           )
                                                            )
                             Appellant.                     )
                                       DISSENTING OPINION
           I respectfully dissent. Yes, the court should have instructed down, the defense
closing made brief issue as to serious physical injury, we presume prejudice unless
the record clearly shows otherwise, and we give the defense the benefit of any
reasonable doubt on that score.
           But a 16-minute verdict? 1 Can one truly believe instructing down might have
changed this result? If this record doesn’t gainsay prejudice, what record could?

DANIEL E. SCOTT, J. – DISSENTING OPINION AUTHOR

1   Including time for a jury note and for the court and counsel to address it. I quote the trial transcript:
         (AT 4:28 THE JURY EXITS THE COURTROOM TO BEGIN DELIBERATIONS.)
         THE COURT: First question at 4:33. The jury wants to see the entire knife as evidence. We
      cannot see the point.
         MR. ANDERSON: Oh, you mean take it out.
         THE COURT: That’s what they want, to be able to do that.
         MR. JONES: They’re welcome to open that up or we can open it up and we can send it.
         THE COURT: Hold on. I’ve got to it -- give a written response. I think having the bailiff to do
      that, take it out and break the tape and hand it to them.
         I guess I don’t really need to send them a response. Just break the seal and hand it to them.
         MR. JONES: Do it in front of them.
         (THE BAILIFF TAKES THE KNIFE TO THE JURY AND THEY RESUME DELIBERATIONS.)
         THE BAILIFF: Knock at the door. They’ve came to a verdict, sir. We have a verdict.
         (AT 4:44 A VERDICT IS REACHED.)
