State v. Hibler , 5 S.W.3d 147 ( 1999 )

DUANE BENTON, Judge.

The State charged appellant, Patrick A. Hibler, with two counts of assault in the first degree. On each count, the circuit court instructed on both first and second degree assault, but refused appellant’s instructions on assault in the third degree. The jury found appellant guilty, on both counts, of assault in the second degree. Appellant argues that the trial court erred in not instructing on third degree assault. This Court granted transfer. Mo. Const, art. V, sec. 10. Reversed and remanded.

Trial courts are not obligated to instruct on lesser included offenses unless there is a basis for the jury to: 1) acquit the defendant of the offense charged, and 2) convict the defendant of the included offense. State v. Yacub, 976 S.W.2d 452, 453 (Mo. banc 1998)(citing sec. 556.04-6.2 ¹. If in doubt, the trial judge should instruct on the lesser included offense. Id. (citing State v. Santillan, 948 S.W.2d 574, 576 (Mo. banc 1997)).

1. Basis to acquit of the offense charged, 1st degree assault

To acquit of first degree assault, the jury needed to reasonably doubt whether the defendant attempted to Mil or cause serious physical injury to the victim. See sec. 565.050.1.

Count one. The victim testified that on May 5, she and appellant argued and “got physical with each other.” She did not remember whether she hit appellant, but she ripped his magazine and “got up in his face.” Appellant choked the victim for 20 to 30 seconds until she began to “cough up stuff.” The couple quit fighting and made up. After the victim took a nap, they ate dinner at her mother’s house. The victim did not seek medical care for the choking, nor receive any marks on her throat.

On both counts, the jury impliedly acquitted appellant of assault in the first degree by returning guilty verdicts on assault in the second degree. See State v. Reyes, 862 S.W.2d 377, 388 (Mo.App.1993). A reasonable jury could have believed that appellant did not attempt to kill the victim or cause her serious physical injury. Therefore, there was a basis for acquitting appellant of first degree assault as charged in count one.

Count two. During a car trip on May 6, appellant hit the victim in the head with a key chain fastened to a closed pocket knife. According to the victim, appellant may have hit her with either the key chain or a closed fist holding the key chain. Later, appellant pushed the victim out of the driver’s door, took the wheel, and drove off. After the victim clung to the side of the car for 5 to 10 feet, she fell, cutting her shoulder and elbow. Although there was contrary evidence, the victim testified that appellant pushed her “all the way out” of the car before she ran along side it and fell.

A reasonable jury could have found — as this jury did — that appellant did not attempt to kill the victim or cause her serious physical injury. In particular, the jury could have decided that the cuts on the victim’s elbow and shoulder, for which she received no medical treatment, were not “serious physical injury,” which 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.” Sec. 565.002(6). Therefore, there was a basis for acquitting appellant of both counts of first degree assault, as the trial judge properly determined.

2. The 2nd and 3rd degree assault instructions

The State did not charge appellant in the information with assault in the second degree. Appellant requested an instruction on second degree assault, the State did not object, and the trial court submitted it.

“A defendant may be convicted of an offense included in an offense charged in the indictment or information.” State v. Stepter, 794 S.W.2d 649, 652 (Mo. banc 1990). “[T]he trial court should resolve any doubts in favor of instructing on the lower degree of the crime, leaving it to the jury to decide which of two or more grades of an offense, if any, the defendant is guilty.” Santillan, 948 S.W.2d at 577 (emphasis added). Section 556.046 reads:

1. A defendant may be convicted of an offense included in an offense charged in the indictment or information ....

2. The court shall not be obligated to charge the jury with respect to an included offense unless there is a basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.

Here, “the offense charged” is first degree assault. “Absent a statutory definition, the words used in the statute will be given their plain and ordinary meaning as derived from the dictionary.” Columbia Athletic Club v. Director of Revenue, 961 S.W.2d 806, 809[6] (Mo. banc 1998); see Morton v. Brenner, 842 S.W.2d 538, 541[6] (Mo. banc 1992). The dictionary defines “the” as: “used as a function word to indicate that a following noun or noun equivalent refers to someone or something previously mentioned or clearly understood from the context of the situation.” Webster’s Third New International Dictionary Unabridged 2368 (1976). The plain meaning of “the offense charged” in section 556.046.2 refers back to “an offense charged in the indictment or information.” Section 556.046.2 requires trial courts to compare an offense charged in the indictment or information with its included offenses.

This has long been the law in Missouri:

“The statement of the general rule necessarily implies that the lesser crime must be included in the higher crime with which the accused is specifically charged, and that the averment of the indictment describing the manner in which the greater offense was committed must contain allegations essential to constitute a charge of the lesser, to sustain a conviction of the latter offense.”

State v. Smith, 592 S.W.2d 165, 166 (Mo. banc 1979) (emphasis added) (quoting State v. Amsden, 299 S.W.2d 498, 504 (Mo. 1957)). “[A] lesser offense may only be established where it is necessarily included in the greater offense actually charged.” State v. Ballard, 394 S.W.2d 336, 340 (Mo.1965) (emphasis added). See also State v. Lane, 376 S.W.2d 128, 133 (Mo.1964); State v. Rose, 346 S.W.2d 54, 56[2] (Mo.1961); State v. Moon, 221 Mo.App. 592, 283 S.W. 468, 470 (1926).

The key language of Missouri’s section 556.046 tracks section 1.07(4)-(5) of the Model Penal Code. The drafters of the Code adopted the majority rule:

The majority rule ... is that a lesser crime is an included offense when it consists of legal elements which must always be present for the greater crime to have been committed in the manner in ichich the greater crime is charged in the accusatory pleading.

Jerrold H. Barnett, The Lesser-Included Offense Doctrine: A Present Day Analysis For Practitioners, 5 Conn. L.Rev. 255, 291 (1972) (emphasis added) (cited in AmeRigan Law Institute, Model Penal Code and Commentaries, sec. 1.07, at 130 & n. 109 (1985)). “The lesser included offense doctrine in criminal law generally allows the trier of fact to convict a defendant of an offense that is less serious than the offense with which he was charged in the accusatory pleading.” Christen R. Blair, Constitutional Limitations on the Lesser Included Offense Doctrine, 21 Am. Crim. L.Rev. 445 (1984) (emphasis added).

Due process requires that a defendant may not be convicted of an offense not charged in the information or indictment. Smith, 592 S.W.2d at 165[3]. Every information or indictment puts the defendant on notice, for due process purposes, of all offenses included in the offense charged. State v. Goddard, 649 S.W.2d 882, 889[5] (Mo. banc 1983); State v. Wilkerson, 616 S.W.2d 829, 833 (Mo. banc 1981); Smith, 592 S.W.2d at 165[2]-[3]. In this case, appellant unquestionably had notice of the included offenses, as demonstrated by the instructions he requested.

Because second degree assault is specifically denominated by statute as a lesser degree of the offense charged, it is an included offense. Sec. 556.016.1(2), 565.060. Second degree assault was not “the offense charged” because, by the terms of the statute, second degree assault is not both an included offense and the offense charged.

If an offense is an “included offense” of “the offense charged,” then the issue is whether there is a basis to: 1) acquit of the offense charged, and 2) convict of the included offense. Sec. 556.016.2. To determine whether there is a basis to acquit of the offense charged and convict of the included offense, the trial court looks at the evidence. If there is “any doubt upon the evidence,” it should instruct on the included offense. Santillan, 948 S.W.2d at 577.

In implementing the statute as a practical matter, the serial approach to instructing a jury is logical and should continue to be followed. See Notes on Use 3b to MAI-CR 3d 30).02.² If there is a basis for acquittal of the offense charged, it is indeed logical to instruct on any lesser included offenses in descending order to determine whether there is a basis for conviction. Once the court determines that a basis for conviction on a lesser included offense exists and that there is no basis to convict of a (lower) lesser included offense, it is fair to stop the inquiry.

Here there was a basis to acquit on first degree. The state offered second degree. The trial court examined the evidence to determine whether there was a basis to convict on second degree. There was. Appellant requested an instruction on third degree assault, but the trial court refused to instruct on it.

Because third degree assault is specifically denominated by statute as a lesser degree of the offense charged, it is also an included offense. Sec. 556.0)6.1(2); State v. Garrison, 975 S.W.2d 460, 461[2] (Mo.App.1998). The issue is then whether there was a basis to convict of the included offense of third degree assault.

Count one. Quoting section 565.070.1(1), appellant’s proffered instruction defined third degree assault as “attempting] to cause ... physical injury to another person.” Here, the evidence that appellant choked the victim for 20 to 30 seconds was sufficient proof of an attempt to cause physical injury to the victim.

Count two. A jury could have found that, under the proffered instruction, appellant “recklessly caused physical injury” to the victim when he drove away. Sec. 565.070.1(1). A police officer who witnessed the fight testified, contrary to the victim’s account, that appellant started to drive off while the victim was partially in and partially out of the vehicle. According to the officer, she hopped along on one foot before falling and injuring herself. Therefore, there was a basis for convicting defendant of third degree assault on both counts.

Because there was a basis to acquit of first and second degree assault, and to convict of third degree assault, the trial court erred in not instructing on assault in the third degree.

3. Other issues

Appellant argues that there was insufficient evidence of second degree assault, as a matter of law, because he did not use a “dangerous instrument” as required by section 565.060.1(2). Whether the defendant used a dangerous instrument depends on the circumstances in which the instrument is used. See sec. 556.061(9). Because this issué will hinge on the facts at retrial, this Court declines to decide, on the present record, whether appellant used a dangerous instrument as a matter of law.

Appellant further contends that the instruction he submitted on second degree assault was erroneous and merited reversal for plain error. This alleged error is unlikely to occur on retrial and is not addressed.

Reversed and remanded for proceedings consistent with this opinion.

PRICE, C.J., COVINGTON, WHITE, HOLSTEIN and WOLFF, JJ., concur; LIMBAUGH, J., concurs in result in separate opinion filed.

1 . All statutory citations are to RSMo 1994.

2 . The concurring opinion correctly observes that this question is "merely academic” in this case. If a judge, on a charge of first degree assault, instructs on third degree assault, section 556.046 requires instructing on assault second if the prosecutor so requests and there is a basis for the instruction. State v. Redmond, 937 S.W.2d 205, 208[2] (Mo. banc 1996). The prosecutor also may amend the information to charge "higher” included offenses "at any time before verdict or finding if no additional or different offense is charged and if a defendant’s substantial rights are not thereby prejudiced." Rule 23.08; State v. Messa, 914 S.W.2d 53, 54[1] (Mo.App.1996).