            SUPREME COURT OF MISSOURI
                     en banc
STATE OF MISSOURI,                                      )
                                                        )
              Respondent,                               )
                                                        )
v.                                                      )      No. SC94081
                                                        )
CHRISTOPHER ERIC HUNT,                                  )
                                                        )
              Appellant.                                )
                                                        )

       APPEAL FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
                   The Honorable Keith Sutherland, Judge

                            Opinion issued December 23, 2014

PER CURIAM

       In the course of arresting a suspect on two pending felony arrest warrants for the

manufacture of methamphetamine and child endangerment, a deputy sheriff made a

forced entry into a residence and physically subdued and arrested the suspect. As a result

of the arrest, the deputy was charged and convicted of three crimes: burglary for entering

the residence with intent to commit an assault; property damage for kicking in the door

during the entry; and assault for the physical struggle that took place between the deputy

and the suspect.
         The evidence on the burglary charge under section 569.160 1 was insufficient

because it did not establish both the required elements of a knowingly unlawful entry and

the intent to commit a crime. The suspect had active warrants, and the deputy had arrest

authority. The lawfulness of the entry, however, centered on whether he had a reasonable

belief that the suspect was inside the residence at the time he entered. If, as the State

argued, the deputy did not reasonably believe the suspect was inside, then he could not

have formed the intent to assault the suspect. On the other hand, if he did have such

belief, then he subjectively thought he had authority to enter and did not act knowingly

unlawfully. The evidence could not establish both elements of section 569.160. The

burglary conviction is reversed.

         Similarly, the evidence on the property damage charge under section 569.120 was

insufficient. The damage to the residence occurred during the deputy’s forced entry to

arrest the suspect. Section 544.200 privileges officers to break doors and windows to

effectuate arrests when police presence is first announced and admittance is refused. As

that statute was complied with, the deputy could not be convicted of conduct for which he

was privileged under the law. The property damage conviction is also reversed.

         Finally, although the sufficiency of the evidence on the third-degree assault charge

under section 565.070 was not challenged, the jury instructions were misleading and were

plainly erroneous. The assault conviction is reversed and remanded for a new trial or

other further proceedings.



1
    All statutory references are to RSMo 2000 unless otherwise indicated.
                                  I. Factual Background

       The parties disagree about many of the facts, but viewing all evidence in the light

most favorable to the verdict, the following narrative emerges:

       Philip Alberternst (the suspect) was a known drug manufacturer and dealer in the

Montgomery County area. The suspect had two active felony arrest warrants for the

manufacture of methamphetamine and child endangerment. He had been hiding out

alone for two weeks at a friend’s trailer in the woods of Montgomery County, yet his

exact location was unknown to law enforcement.

       Efforts to locate and arrest the suspect were underway by the sheriff departments

of Montgomery and Warren counties as well as the East Central Drug Task Force (EC-

DTF) and the St. Charles County Regional Drug Task Force (St. Charles DTF). 2 Deputy

Christopher Hunt (Deputy Hunt) was a member of the St. Charles DTF.

       Ultimately, the suspect’s former girlfriend (the informant) met with detectives

from Warren County and St. Charles DTF and agreed to disclose the suspect’s location to

law enforcement. At this meeting, the informant asked that Deputy Hunt not be involved

in the arrest because she feared for the suspect’s safety based on past encounters when

Deputy Hunt had arrested the suspect. Previously, while released from jail, the suspect

reneged on a deal with Deputy Hunt to act as a confidential informant. On another

occasion, Deputy Hunt allegedly backhanded the suspect while he was in handcuffs.


2
 EC-DTF operates in Montgomery, Warren, and Audrain counties. St. Charles DTF and EC-
DTF are multidistrict enforcement groups operating under the authority of section 195.505,
RSMo Supp. 2013. These groups possess the authority to make arrests anywhere in the state.

                                              2
Detectives told the informant that Deputy Hunt would not be a part of the operation.

However, no evidence at trial indicated that Deputy Hunt was ever informed of this.

         The day of the operation, the informant was given several boxes of

pseudoephedrine to deliver to the suspect to protect her cover. 3 She was concerned that

the suspect, who had been awake for several consecutive days cooking and using

methamphetamine, would not believe that she would come to him empty handed. That

night, the informant contacted the detectives and provided the address of the trailer,

informing them she was inside with the suspect.

         Other officers were contacted to assist with the operation. In total, 10 officers

were present: one from Montgomery County, three from Warren County, two from EC-

DTF, and three from St. Charles DTF. The officers met at a staging location near the

trailer to discuss the approach. The informant’s car was parked in front of the trailer.

         The officers had felony arrest warrants for the suspect, but they did not have a

search warrant for the trailer. They decided to conduct a “knock and talk” in hopes that

someone might answer the door and they could proceed from there. The trailer had a

closed-in porch built onto the front. Both the trailer and the porch had several windows,

all of which were covered to some degree. The front door into the trailer was accessible

only through the porch, which itself had an exterior door.

         Officers banged on the exterior porch door and announced “sheriff’s department,

answer the door,” but no one answered. Inside, the informant heard this but did not


3
    Pseudoephedrine is a key ingredient in the manufacture of methamphetamine.

                                                3
intend to open the door. The officers shined flashlights into the windows and porch.

Seeing no one, they dropped back into a perimeter some 20 yards away.

       At this point, Deputy Hunt arrived. Although he had been aware of the existence

of an effort to arrest the suspect, he had been working in St. Charles County that day and

was not a part of the operation’s planning or initial stages. He drove to the scene after a

fellow St. Charles DTF member contacted him and told him of the pending arrest.

Officers testified that when Deputy Hunt arrived, he exited his truck, nodded to one of

the officers, put on a tactical vest, and approached the trailer and kicked in the exterior

porch door, displacing the door from the frame.

       Deputy Hunt testified at trial that, before he kicked in the porch door, he looked in

the porch windows and noticed black trash bags and a partially open backpack containing

tubing and rubber containers with liquid inside them. Based on his experience, he

believed these were signs of a mobile methamphetamine lab. Other officers testified they

could not see anything on the porch prior to the entry.

       Several officers followed Deputy Hunt into the porch area and noticed items

consistent with a methamphetamine lab. One officer testified he could smell a “faint

odor of maybe a chemical smell.” Eventually Deputy Hunt opened the interior door

leading into the trailer and the other officers entered. Officers on the perimeter entered

when they heard yelling and screaming coming from inside.

       Inside, the informant was on the couch covered in a blanket. The officers secured

her, and she told them the suspect was in the bathroom. The suspect was naked but

wrapped in a towel. The suspect initially attempted to close the door on the officers but
                                              4
eventually stuck his hands out the bathroom door. Deputy Hunt then took him to the

ground in the hallway. The suspect was “passively resisting arrest” and not complying

with their commands. Deputy Hunt, the three other St. Charles officers and a

Montgomery County officer held the suspect down. Deputy Hunt and others employed

“control tactics,” striking the suspect in the “upper area, shoulders and head area.” EC-

DTF and Warren County officers testified that the suspect was flailing his arms and

kicking his legs, but that in their opinion the movements were defensive. One officer

heard Deputy Hunt shout “you want to kick my a** now mother f*****.” After the

suspect was handcuffed, the control strikes stopped. He was taken to the hospital and

released immediately, receiving no stitches. After the scene was secured, substantial

evidence of a mobile methamphetamine manufacturing lab was seized both from the

porch and inside the trailer, including a pile of crushed up pseudoephedrine.

       Deputy Hunt was charged in Montgomery County with first-degree burglary for

unlawful entry into the residence with intent to commit assault, second-degree property

damage for breaking down the door to enter the residence, and third-degree assault for

striking the suspect during the arrest. He was convicted by a jury of all three counts and

sentenced to a total of five years in prison. 4 Deputy Hunt appeals the convictions. 5




4
  All of the St. Charles DTF officers were charged with assault in connection with the operation.
The Montgomery County officer, who also participated in subduing and arresting the suspect,
was not charged.
5
  This Court granted transfer after opinion by the court of appeals. Mo. Const. art. V, section 10.
                                                 5
                                        II. Issues on Appeal

          Deputy Hunt argues that the trial court erred in failing to sustain his motion for

acquittal and in submitting the charges of first-degree burglary and second-degree

property damage to the jury because there was insufficient evidence from which

reasonable jurors could find guilt beyond a reasonable doubt. He does not challenge the

sufficiency of the third-degree assault evidence but, rather, argues that the jury

instructions were plainly erroneous, mandating a new trial. Finally, he argues the trial

court prejudicially erred in limiting the testimony of Corporal Brian Clay at trial. 6

                                  III. Sufficiency of the Evidence

                                        A. Standard of Review

          Appellate review of sufficiency of the evidence is limited to whether the State has

introduced sufficient evidence from which a reasonable juror could have found each

element of the crime beyond a reasonable doubt. State v. Nash, 339 S.W.3d 500, 508-09

(Mo. banc 2011). This Court does not reweigh the evidence but, rather, considers it in

the light most favorable to the verdict and grants the State all reasonable inferences. Id.

at 509. Contrary evidence and inferences are disregarded. Id. The Court may not supply

missing evidence or give the State the benefit of unreasonable, speculative, or forced

inferences. State v. Langdon, 110 S.W.3d 807, 811-12 (Mo. banc 2003).




6
    Other claims of error are not addressed as they are resolved by the disposition in this opinion.
                                                   6
                                  B. First-Degree Burglary

       Section 569.160(3) provides, in relevant part:

       1. A person commits the crime of burglary in the first degree if he
       knowingly enters unlawfully or knowingly remains unlawfully in a building
       or inhabitable structure for the purpose of committing a crime therein, and
       when in effecting entry or while in the building or inhabitable structure or
       in immediate flight therefrom, he or another participant in the crime:
       …

       (3) There is present in the structure another person who is not a participant
       in the crime.

Section 569.160. There are two distinct burglary elements that are relevant here:

(1) knowingly enters unlawfully, and (2) an intent to commit a crime therein, i.e., the

alleged assault. 7 See State v. Cooper, 215 S.W.3d 123, 127 (Mo. banc 2007).

       To satisfy the first element, a person enters unlawfully when he is not licensed or

privileged to do so. Section 569.010(8). If a person is privileged to enter, he is not guilty

of burglary, regardless of any crimes he may commit therein. State v. Chandler, 635

S.W.2d 338, 341 (Mo. banc 1982). The mens rea “knowingly” modifies the phrase

“enters unlawfully.” Section 569.160. A person acts “knowingly” with respect to his

conduct or attendant circumstances when he is “aware of the nature of his conduct or that

those circumstances exist.” Section 562.016.3(1). Accordingly, a person “enters

unlawfully” when he is aware he has no privilege to enter. Chandler, 635 S.W.2d at 342.

Knowledge is typically inferred from circumstantial evidence because direct evidence is

rarely available. State v. Letica, 356 S.W.3d 157, 166 (Mo. banc 2011).


7
 The parties agree that subdivision (3) of section 569.160 was satisfied because the informant
was present inside the trailer when Deputy Hunt entered.
                                                7
       To convict, the State had to present sufficient evidence, direct or circumstantial,

that Deputy Hunt knew he had no authority to enter the trailer. The analysis must focus

on Deputy Hunt’s subjective belief. 8 In other words, the State had to present sufficient

evidence that Deputy Hunt actually knew he had no authority—not just that he merely

had a mistaken belief or that he guessed wrong under the circumstances.

       The lawfulness of the entry centers on whether Deputy Hunt had a reasonable

belief that the suspect was inside the residence when he entered. The other officers

generally agreed that if they had seen the suspect inside, the arrest warrant would have

provided authority to enter, even though the residence did not belong to the suspect and

the officers did not have a search warrant for the residence. A reasonable belief that the

suspect was inside was, therefore, legally relevant to the question of Deputy Hunt’s

authority to enter. 9 If Deputy Hunt did not actually believe the suspect was inside at the

time he entered, as the State argues he did not, then he knew he had no authority to enter.

       Yet, even if the jury accepted the State’s position on the unlawful entry, the charge

was still not submissible. This is because in addition to the knowingly unlawful entry

8
  This is in contrast to the objective standard of reasonableness that governs Fourth Amendment
law. State v. Lovelady, 432 S.W.3d 187, 191 (Mo. banc 2014). The parties discuss at length in
their briefs whether Deputy Hunt’s conduct actually violated the Fourth Amendment. That is not
an issue in this case. In reviewing sufficiency of the evidence, it is important to keep the
constitutional and criminal standards separate. Evidence that might be relevant to objective
reasonableness in a suppression hearing or a civil damages action under 42 U.S.C. § 1983 is not
necessarily probative of Deputy Hunt’s mental state. If there was insufficient evidence of
Deputy Hunt’s mens rea, the convictions cannot stand even if he committed a constitutional
violation.
9
  The parties cite to precedent of the United States Supreme Court in an effort to answer the
question of whether an arrest warrant combined with a reasonable belief that the subject of that
warrant is inside a third-party residence gives officers the limited authority to enter and make an
arrest. This discussion largely misses the mark because the question in this case is not whether
Deputy Hunt’s entry actually was unlawful but, rather, whether he knew it was unlawful.
                                                8
element, the State also had to present sufficient evidence that, at the time of entry, he had

the intent to assault the suspect as opposed to arresting him.

        It is here that submissibility fails because the evidence in this case cannot

establish both a knowingly unlawful entry and an intent to commit assault. If Deputy

Hunt had a reasonable belief that the suspect was inside the residence, then his entry was

not knowingly unlawful under section 569.160. This is why the State argues that Deputy

Hunt did not have such belief. But therein lies the “catch-22,” because if he did not

actually believe the suspect was inside the residence, then he could not form the intent to

commit assault. In other words, the burglary elements are mutually exclusive here

because the predicate crime is assault.

       In light of the record and viewing all evidence in the light most favorable to the

verdict, the trial court erred in submitting first-degree burglary to the jury and in failing to

sustain Deputy Hunt’s motion for acquittal. There was insufficient evidence from which

reasonable jurors could find each element of the offense beyond a reasonable doubt. The

conviction is reversed.

                            C. Second-Degree Property Damage

       Deputy Hunt also challenges the sufficiency of the evidence to submit the property

damage count to the jury. Section 569.120 provides, in relevant part, that a person

commits property damage if he “knowingly damages property of another.” The required

mental state under the statute is “knowingly.” Although there is little doubt that Deputy

Hunt acted knowingly when he kicked in the porch door to enter the residence, law



                                               9
enforcement officers are afforded a privilege to damage another’s property under certain

circumstances:

       To make an arrest in criminal actions, the officer may break open any outer
       or inner door or window of a dwelling house or other building, or any other
       enclosure, if, after notice of his office and purpose, he be refused
       admittance.

Section 544.200. The privilege applies to criminal arrests when the officer is first

refused admittance after announcing his office and purpose, commonly referred to

as a “knock and announce.” Here the record reflects that the section 544.200

privilege existed because there was sufficient evidence for the jury to believe that

both conditions for its availability were met.

       First, in order for the privilege to apply, Deputy Hunt must have been

making an arrest in a criminal action. This condition was satisfied. Deputy Hunt

was a member of a multidistrict enforcement group and had power of arrest. He

kicked in the door with the purpose of arresting the suspect on two felony arrest

warrants, and that arrest occurred. The State argues that the privilege was

unavailable because Deputy Hunt intended to assault the suspect, not arrest him.

However, the fact that a physical altercation took place that was later alleged to be

an assault does not negate Deputy Hunt’s purpose to effect an arrest. Property

damage does not require any predicate crime. In other words, unlike burglary,

property damage was not dependent on an intent to commit assault.

       Second, section 544.200 requires a knock and announce. Officers testified

that, as they approached the trailer, they banged on the door and announced

                                             10
“sheriff’s department, answer the door.” The informant testified that she saw

police lights and heard the officers announce their presence, but she did not intend

to open the door. The State responds that this did not satisfy the statute because

Deputy Hunt did not himself perform the knock and announce. However, there is

no requirement in section 544.200 that the officer who knocks and announces be

the same one who enters. 10

       The State counters that, even if Deputy Hunt could rely on the other

officers’ knock and announce, their “announce” was defective because they

declared their presence but not their purpose to arrest the suspect. In United

States v. Boyer, 574 F.2d 951, 952 (8th Cir. 1978), police and FBI agents

approached a third-party residence based on a confidential informant’s tip that a

robbery suspect was hiding inside. An agent knocked on the door, identified

himself, and demanded entry. Id. After 10 to 15 seconds with no response, the

agent kicked in the door and entered. Id. The Eighth Circuit, applying Missouri

law, found that the agent complied with section 544.200 and noted that the

particular circumstances of a case “could relax the need to state a purpose on the

part of officers who identified themselves, knocked and were denied entry.” Id. at




10
  Section 544.200 refers to “the officer” in the singular. However, Missouri statutory
construction dictates that when a statute refers to a party or person in the singular, the plural is
included. Section 1.030.2.
                                                  11
953-54 (citing State v. Novak, 428 S.W.2d 585, 592-93 (Mo. 1968) and State v.

Bryson, 506 S.W.2d 358 (Mo. 1974)). 11

       Here the evidence showed that the informant not only heard the officers

announce their presence but also clearly understood their purpose to arrest the

suspect because she was the one who directed law enforcement to the residence

for that exact purpose. Under these circumstances, the officers complied with

section 544.200 because they knocked, announced their presence, demanded entry,

and were refused.

       Although there was sufficient evidence that Deputy Hunt knowingly

damaged the residence, as a matter of law this charge was not submissible because

he was acting lawfully under the privilege of section 544.200. The conviction for

second-degree property damage is reversed.

                                   IV. Instructional Error

       Deputy Hunt does not challenge the sufficiency of the evidence for third-degree

assault under section 565.070. However, he alleges that the trial court committed plain

error by submitting jury instructions 7 and 8. He asserts that the instructions failed to

define essential legal terms, asked the jury to decide as a factual matter whether he was




11
  The Boyer court further pointed out that the entry would also have been justified under 18
U.S.C. § 3109, the federal knock and announce statute, which is substantially similar to section
544.200. Boyer, 574 F.2d at 954 (Referencing exception to § 1309 for situations “where the
persons within already know of the officers’ authority and purpose.”).
                                               12
acting as a law enforcement officer when he arrested the suspect, and did not require the

jury to consider whether reasonable force was used. 12

                                    A. Standard of Review

       As these claims of error were not preserved, Deputy Hunt seeks plain error review.

Rule 30.20 provides that, whether the alleged errors are briefed or not, plain errors

affecting substantial rights may be considered in the discretion of the court when the error

has resulted in manifest injustice or miscarriage of justice. In applying plain error

review, this Court frequently uses a two-step inquiry. First, the Court must determine

whether the claimed error is, in fact, “plain error[] affecting substantial rights.” Rule

30.20. Substantial rights are involved if, facially, there are significant grounds for

believing that the error is of the type from which manifest injustice or miscarriage of

justice could result if left uncorrected. Id. An error is plain if it is “evident, obvious, and

clear.” State v. Baumruk, 280 S.W.3d 600, 607 (Mo. banc 2009). In the realm of

instructional error, plain error exists when it is clear that the trial court has so misdirected

or failed to instruct the jury that manifest injustice or miscarriage of justice has resulted.

State v. Ousley, 419 S.W.3d 65, 75 (Mo. banc 2013). Instructional error is plain error

when it is apparent the error affected the verdict. State v. Miller, 372 S.W.3d 455, 470

(Mo. banc 2012). Second, if plain error affecting substantial rights is found, the Court

determines whether the error actually did result in manifest injustice or a miscarriage of

justice. Baumruk, 280 S.W.3d at 607-08.

12
  The instructions for burglary and property damage need not be addressed for instructional
error in light of this Court’s holdings on the insufficiency of the evidence to submit those
charges.
                                               13
       Deputy Hunt’s claim is entitled to plain error review. Applying step one, the

liberty of a criminal defendant is a substantial right that, when violated, can lead to

manifest injustice or miscarriage of justice. Further, it was evident, obvious, and clear to

the trial court that there was significant risk of misdirecting the jury. During the

instructional conference, the trial judge noted that there was “so much potential

instruction error here the Court of Appeals will love this.” As for step two, Hunt has

made a showing that the error affected the verdict resulting in a manifest injustice or

miscarriage of justice. Plain error review is granted.

                                   B. Assault Instructions

       Two instructions were given to the jury on the assault: instruction 7 on assault and

instruction 8 on reasonable force. These instructions were not patterned instructions from

the Missouri Approved Instructions. Instruction 7 provided in relevant part:

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

       First, that on or about February 5, 2009, in the County of Montgomery,
       State of Missouri, the defendant attempted to cause physical injury to
       Phillip Alberternst by striking him,

       Second, that defendant did not act as a law enforcement officer lawfully
       using force to make an arrest as submitted in instruction No. 8,

       Then you will find the defendant guilty under Count III of assault in the
       third degree.

Instruction 8 provided, in relevant part:

       One of the issues as to count III is whether the use of force by [Defendant]
       against [Alberternst] was the lawful use of force by a law enforcement
       officer in making an arrest. In this state, the use of force by a law
       enforcement officer in making an arrest is lawful in certain situations.
                                              14
       …
       On the issue of use of force by a law enforcement officer as to Count III,
       you are instructed as follows:

               If the defendant was a law enforcement officer making or attempting
               to make a lawful arrest or what he reasonably believed to be a lawful
               arrest of Phillip Alberternst for the crimes of Endangering the
               Welfare of a Child and Manufacturing Methamphetamine and used
               only such force as reasonably appeared to be necessary to effect the
               arrest or to prevent the escape of Philip Alberternst, then his use of
               force was lawful.

               The state has the burden of proving beyond a reasonable doubt that
               the defendant was not entitled to use force as a law enforcement
               officer. Unless you find beyond a reasonable doubt that the
               defendant was not entitled to use force as a law enforcement officer
               against Phillip Alberternst, you must find the defendant not guilty
               under Count III.

       In essence, instruction 7, in paragraph two, required the jury to find two

things: (1) whether Deputy Hunt was acting as a law enforcement officer and, if

so, (2) whether he was “lawfully using force to make an arrest as submitted in

instruction No. 8.”

       It was error for the jury to be permitted to determine whether Deputy Hunt

was a law enforcement officer. Deputy Hunt’s authority was derived from section

195.505, as he was a member of a multidistrict enforcement group, a police unit

that has the power of arrest anywhere in the state. This authority was not a fact

issue for the jury to decide as it was a legal question answered by statute. 13



13
  The State now concedes Deputy Hunt’s legal authority to arrest the suspect. In its brief on
appeal, the State said, “[t]here is little question that Mr. Hunt, a deputy sheriff in St. Charles
County, and a member of a multi-jurisdictional enforcement group, had (in the general sense)
legal authority to arrest Mr. Alberternst.”
                                                 15
       Instruction 7 misdirected the jury that Deputy Hunt’s authority was an issue

for it to decide instead of presenting his authority as a legal conclusion from which

it must determine the second inquiry of paragraph two of instruction 7 – whether

Deputy Hunt used reasonable force, as defined in instruction 8, to subdue and

arrest the suspect. In other words, the question for the jury was not whether

Deputy Hunt had authority, but whether he exceeded it.

       Instruction 8 purported to be a reasonable force instruction but actually

repeated the flaws of instruction 7. It presented the same two-step inquiry,

requiring the jury to find that Deputy Hunt’s force was lawful if: (1) “[Deputy

Hunt] was a law enforcement officer making or attempting to make a lawful arrest

or what he reasonably believed to be a lawful arrest,” and (2) that he “used only

such force as reasonably appeared to be necessary to effect the arrest.” As with

instruction 7, instruction 8 misdirected the jury to determine whether Deputy Hunt

was a law enforcement officer. Permitting the jury to make that determination

could result in the jury avoiding the issue of whether Deputy Hunt used only such

force as he believed reasonably necessary to effect the arrest.

       A jury given the two-step inquiry outlined in instruction 8 would only reach the

question of reasonable force if it first found that Deputy Hunt was a law enforcement

officer attempting to make a lawful arrest. But if the jury believed the State’s theory at

trial that Deputy Hunt was acting outside his authority, then it would never have

considered the question of reasonable force at all. Given that, as a matter of law, Deputy

Hunt had authority as a law enforcement officer to make an arrest, instruction 8 misled
                                             16
the jury because it allowed it to avoid an essential element of Deputy Hunt’s assault

conviction – whether he exceeded reasonable force.

       Instruction 8 should have conformed to the law in section 563.046.1 that a law

enforcement officer is “justified in the use of such physical force as he reasonably

believes is immediately necessary to effect the arrest or to prevent the escape from

custody.” It did not do so and was a misstatement of the substantive law that governs the

circumstances of the assault charge against Deputy Hunt.

       In instruction 8, the jury was asked to consider whether Deputy Hunt was “making

or attempting to make a lawful arrest or what he reasonably believed to be a lawful

arrest.” The lawfulness of the arrest was dependent on the lawfulness of the forced entry

into the residence because if Deputy Hunt unlawfully entered, his very presence in the

residence was illegal and so was the arrest. The problem is all the more evident given

that the State has admitted that the burglary instructions were erroneous precisely because

Instruction 5 did not define “enter unlawfully,” a legal term on which the jury needed

guidance. The very same conclusion applies to the use of the legal term “lawful arrest”

in instruction 8. The jury was not instructed as to what specific conduct of Deputy

Hunt’s would make the entry or arrest lawful or unlawful and was left instead to answer

an abstract legal question by roaming freely through the evidence.

       There is a further problem with the assault instructions. Instruction 5 for first-

degree burglary contained an erroneous definition of the predicate offense of assault.

Instruction 5 defined assault as follows:



                                             17
       The crime of “assault” occurs when a person knowingly or recklessly
       causes or attempts to cause[] physical injury to another person, or purposely
       places another person in apprehension of immediate physical injury, or
       knowingly causes physical contact with another person knowing the other
       person will regard the contact as offensive or provocative.

This was a garden-variety definition of assault without any reference to Deputy

Hunt’s position as a law enforcement officer, reasonable force, or instruction 8.

As a result, the jury was given two different definitions for the same assault.

       In summary, instructions 7 and 8 misled the jury in requiring it to make a

finding on a legal issue – that Deputy Hunt was a law enforcement officer.

Instruction 8 failed to inform the jury that a law enforcement officer is justified in

using such physical force as the officer reasonably believes is immediately

necessary to effect the arrest. Instruction 8 further failed to instruct the jury that it

could convict Deputy Hunt only if he exceeded that force permitted by law – an

essential element when a police officer is charged with assault in the line of duty.

The instructions were plainly erroneous because it is clear that the trial court

misdirected and failed to adequately instruct the jury on assault. Because the jury

convicted Deputy Hunt without being required to find all the essential elements of

the offense, the errors affected the verdict and manifest injustice or miscarriage of

justice resulted. The conviction is reversed and remanded for a new trial.

                                   V. Excluded Testimony

       Deputy Hunt also claims that the trial court erred in sustaining the State’s

objection to a portion of Corporal Brian Clay’s testimony about the issue of reasonable

force for the assault count. Clay was the department instructor for the St. Charles County
                                               18
sheriff’s department. He was permitted to testify about the department’s defensive tactics

instruction, including the “force continuum,” “control tactics,” and “passive resistance.”

However, the court did not allow him to testify, based only on photographs of the

suspect’s injuries, as to whether Deputy Hunt struck the suspect “only in the places law

enforcement officers are trained to strike resisting arrestees.” Deputy Hunt alleges this

was prejudicial error because the testimony goes directly to whether he used more force

than was reasonably necessary to subdue and arrest the suspect.

       Trial courts have broad discretion to admit or exclude evidence, and reversal is

warranted only when there is a clear abuse of discretion. State v. Shockley, 410 S.W.3d

179, 195 (Mo. banc 2013). To preserve a claim of improperly excluded evidence, the

proponent must attempt to present the excluded evidence at trial and, if it remains

excluded, make a sufficient offer of proof. Hancock v. Shook, 100 S.W.3d 786, 802 (Mo.

banc 2003). The purpose of an offer of proof is to preserve the evidence so the appellate

court “understands the scope and effect of the questions and proposed answers.” State v.

Tisius, 92 S.W.3d 751, 767-68 (Mo. banc 2002). Offers of proof must show what the

evidence will be, the purpose and object of the evidence, and each fact essential to

establishing admissibility. Id. Offers of proof must be specific and definite. Karashin v.

Haggard Hauling & Rigging Inc., 653 S.W.2d 203, 205 (Mo. banc 1983).

       Deputy Hunt did not preserve his claim for appellate review. In response to the

State’s objection, defense counsel made a brief statement claiming that Corporal Clay

would testify about the training officers received and that he thought Clay, who did not

personally see the suspect after the arrest, would review the photographs and “see if those
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photos and the injuries depicted in them are consistent with [Deputy Hunt’s] training.”

When the trial court sustained the State’s objection to exclude the testimony, defense

counsel added nothing further. Offers of proof may be adequate even when informal and

in narrative form, but they still must be sufficient to allow the court to make an informed

ruling. Moore v. Ford Motor Co., 332 S.W.3d 749, 766 (Mo. banc 2011). The offer of

proof here fell short because it was indefinite and lacked sufficient specificity as to what

Clay’s testimony would be, leaving nothing in the record for an appellate court to review.

       As the claim of error was not preserved, it may only be reviewed for plain error.

The trial court limited Clay’s testimony because it apparently believed it too tenuous for

Clay, who never saw the suspect after the arrest, to merely state from photographs

whether the injuries were caused by appropriate “control strikes.” That decision was

within the discretion of the trial court on the record then before it, and it is not necessary

to determine whether the claimed error affected substantial rights or whether a manifest

injustice occurred. The decision to exclude the testimony in the first trial, if error at all,

was not “evident, obvious, and clear.” Baumruk, 280 S.W.3d at 607. This Court declines

to exercise plain error review or to address whether this would have constituted

prejudicial error if preserved.

                                       VI. Conclusion

       The trial court erred in submitting the charges of first-degree burglary and second-

degree property damage to the jury, and in failing to sustain Deputy Hunt’s motion for

acquittal. Those convictions are reversed. The jury instructions for third-degree assault



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were plainly erroneous. The conviction is reversed and remanded for a new trial or other

further proceedings.



All concur.




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