In the 

Missouri Court of Appeals 

Western District

STATE OF MISSOURI,

Respondent,

v.

ANTOINE L. CLARK,

Appellant.

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WD77974

OPINION FILED: February 9, 2016

Appeal from the Circuit Court of Jackson County, Missouri

The Honorable Justine E. Del Muro, Judge

Before Special Division: Cynthia L. Martin, Presiding Judge, Gary D. Witt, Judge and 

Zel M. Fischer, Special Judge

Following a bench trial, appellant, Antoine Clark ("Clark"), was convicted of one 

count of voluntary manslaughter and one count of armed criminal action by the circuit 

court of Jackson County, Missouri. The court found Clark guilty of shooting and killing 

James Ward ("Ward"), his cousin, during an altercation between Ward and several family 

members. Clark raises three errors on appeal: (1) the court should have excluded all of 

the State's evidence as a sanction for the State's discovery violations; (2) there was 

insufficient evidence to overcome Clark's claim of self-defense; and (3) the court 
2

improperly relied on suppressed evidence in sentencing Clark. We affirm the judgment 

of the circuit court.

Factual Background1

The events surrounding the death of Ward took place on Memorial Day weekend 

2013. On May 26, 2013, Stephen Ramsey, Sr. ("Ramsey"), Ward's great-uncle, was 

hosting a family barbeque. While at the barbeque, Ramsey received a call from his 

brother, David Ramsey, that Ward was at David Ramsey's house with an "A.K." type gun 

looking for a different stolen gun. Ramsey went to his brother's house to confront Ward. 

He could see that Ward had two guns under his shirt plus the stolen gun. The two argued 

about the stolen gun. Ramsey attempted to take the guns from Ward by force, and Ward 

pulled two guns on Ramsey, threatening him. 

Ramsey returned home and called family members regarding the incident with 

Ward. Ward followed Ramsey to his house, and the two resumed arguing outside the 

home. Ward again pulled two guns on Ramsey. Several family members, including 

Clark, arrived at the Ramsey home. Several witnesses testified that Ward appeared to be 

"on something" and behaving unusually. 

Ward charged at Clark and began hitting him either with his fists or the guns. The 

two struggled; Clark shot Ward and he fell backwards. Clark then walked around Ward 

firing multiple shots into his body. In total, Clark shot Ward twelve times. Witnesses 

described Clark's demeanor as calm during the shooting.

 

1

In a criminal case we view the evidence in the light most favorable to the verdict. State v. Perry, 275 

S.W.3d 237, 242 (Mo. banc 2009). We accept as true all facts and inferences favorable to the verdict, and disregard 

evidence and inferences to the contrary. State v. Oliver, 293 S.W.3d 437, 444 (Mo. banc 2009).
3

Neighbors witnessed the shooting or heard the gun shots and came to the house to 

assist Ward until emergency personnel arrived. One of the neighbors, Kevin Dickens 

("Dickens"), kicked away one of the two guns near Ward, and kicked or threw the other

gun to the side. All three guns were missing by the time police arrived. 

Clark and his mother left the scene before police arrived. He was later arrested at 

his girlfriend's home in Kansas. 

Pursuant to an agreement with the State, Clark waved his right to a jury trial in 

exchange for a reduction of his charge from murder in the second degree to voluntary 

manslaughter. The court held a bench trial. The defense did not deny that Clark had shot 

Ward but tried to establish that Clark had acted in self-defense. Clark did not testify. 

Ultimately, the trial court found Clark guilty of both voluntary manslaughter and armed 

criminal action, sentencing him as a prior and persistent offender to concurrent terms of 

twelve years imprisonment for manslaughter and three years for armed criminal action. 

This appeal follows.

Discussion

I.

Clark raises three points on appeal. He alleges in his first point that the circuit 

court erred in failing to exclude all of the State's evidence as a sanction for the State's 

discovery violations. Clark's argument is two-fold. First, he contends that the trial court 

should have excluded all of the State's evidence as a sanction because he suffered 

fundamental unfairness in receiving late disclosure of certain evidence. Second, Clark 

argues that the court's chosen sanction--offering the defense a continuance to review 
4

discovery--was impermissible because it forced Clark to choose between conflicting 

constitutional rights including his right to a speedy trial. We begin with Clark's claim 

that all of the State's evidence should have been excluded.

A.

In review of discovery violations, we must answer two questions: first, 

whether the State's failure to disclose the evidence violated Rule 25.03, and 

second, if the State violated Rule 25.03, then what is the appropriate 

sanction the trial court should have imposed. State v. Campbell, 356 

S.W.3d 774, 779 (Mo. App. E.D. 2011). Review is for abuse of discretion.

State v. Wolfe, 13 S.W.3d 248, 259 (Mo. banc 2000). "The trial court has 

discretion to impose sanctions for discovery violations under Rule 25.03."

State v. Taylor, 298 S.W.3d 482, 502 (Mo. banc 2009) (citation omitted). 

"A trial court's denial of a requested sanction is an abuse of discretion only 

where the admission of the evidence results in fundamental unfairness to 

the defendant." Id. "Fundamental unfairness occurs when the state's failure 

to disclose results in defendant's 'genuine surprise' and the surprise prevents 

meaningful efforts to consider and prepare a strategy for addressing the 

evidence." State v. Thompson, 985 S.W.2d 779, 785 (Mo. banc 1999) 

(citation omitted).

State v. Zetina-Torres, 400 S.W.3d 343, 353-54 (Mo. App. W.D. 2013).

Rule 25.18 governs sanctions and provides:

If at any time during the course of the proceeding it is brought to the 

attention of the court that a party has failed to comply with an applicable 

discovery rule or an order issued pursuant thereto, the court may order such 

party to make disclosure of material and information not previously 

disclosed, grant a continuance, exclude such evidence, or enter such other 

order as it deems just under the circumstances. Willful violation by counsel 

of an applicable discovery rule or an order issued pursuant thereto may 

subject counsel to appropriate sanctions by the court.
5

Clark made a formal request for discovery on June 10, 2013. The State responded 

that it had an "open file" policy2in the prosecutor's office under which Clark could 

examine discovery, but the State also made some initial disclosures. A pretrial order was 

entered on June 20, 2013, requiring both parties to produce "all material information 

contemplated by Supreme Court Rules 25.03 and 25.05 within 10 days." The State made 

no objection to this requirement and produced documents to the defense on August 22, 

August 30, October 1, December 9, and December 27, 2013.

On appeal, Clark argues that the court erred in not sanctioning the State because 

the State failed to produce an "Accurant Report" compiled by the police, Ward's pending 

criminal charges and previous arrest record prior to trial, and the in-car police videos and 

pocket microphone recordings of the responding officers and certain Kansas police 

officers as required by Rule 25.03.

"The basic object of the discovery process in criminal proceedings is to 

permit [the] defendant a decent opportunity to prepare in advance of trial 

and avoid surprise, thus extending to him fundamental fairness which the 

adversary system aims to provide." State v. Scott, 647 S.W.2d 601, 606 

(Mo. App. W.D. 1983). "Where the state has failed to respond promptly 

and fully to the defendant's disclosure request, the question is whether the 

failure has resulted in fundamental unfairness or prejudice to the 

defendant." Id.

 

2 The record does not indicate what records were open and available to the defense under the "open file" 

policy. Regardless, it is clear that the State failed to fully comply with the production ordered by the court in 

response to the June 10th motion. Further, the KCPD "case detective" John Mattivi testified that the KCPD only 

puts "relevant" items into the case file that is sent to the prosecutor and that the "case detective" is responsible for 

determining what is "relevant" and what is not included in the case file. Thus, the Jackson County Prosecutor's 

"open file" policy only discloses what the "case detective" has deemed to be relevant. The State's duty of disclosure 

includes not only information that is known to the prosecutor but information which may be learned through 

reasonable inquiry. State v. Henderson, 410 S.W.3d 760, 765 (Mo. App. E.D. 2013). This includes the State's duty 

to discover and produce information in the possession and control of other governmental personnel including the 

police department. State v. Jackson, 353 S.W.3d 657, 659 (Mo. App. S.D. 2011). We urge the Jackson County 

Prosecutor's office and the KCPD to immediately update their policies in regard to what is included in the 

prosecutor's file and how they comply with discovery requests. The prosecutor cannot delegate its duty of 

disclosure to a police detective's determination of what may or may not be "relevant". 
6

State ex rel. Jackson Cty. Prosecuting Attorney v. Prokes, 363 S.W.3d 71, 76 (Mo. App. 

W.D. 2011).

"Although Brady [v. Maryland, 373 U.S. 83 (1963)] informs [the] Court's 

judgment and states a basis for a finding of denial of due process, the law subject to 

interpretation here is Rule 25.03, which governs disclosure requirements in criminal 

proceedings." Merriweather v. State, 294 S.W.3d 52, 55 (Mo. banc 2009). "Rule 25.03 

was a criminal discovery rule promulgated in 1973, after Brady was decided. Rule 25.03, 

unlike Brady, imposes an affirmative requirement of diligence and good faith on the state 

to locate records not only in its own possession or control but also in the control of other 

governmental personnel." Id.

We first consider whether the State failed to disclose evidence under Rule 25.03. 

Clark alleges that the State failed to disclose three pieces of evidence to the defense in 

violation of Rule 25.03. Clark first alleges that he should have received a copy of the 

Accurant Report run by the officers while they were attempting to locate Clark following

the shooting. The Accurant Report is obtained from a subscription service through 

LexisNexis. A party enters the name of an individual and the search engine produces 

names and addresses of known associates. The document was discussed at the January 

16, 2013, Suppression Hearing held immediately before trial. At that time, defense 

requested its production and an officer produced a copy of the report for review.3

 

3 Questions were raised during trial as to whether the defense had received the entire Accurant Report.
7

The only discovery ordered in this case was pursuant to the pretrial order entered 

on June 20, 2013, which required the State to disclose all information contemplated by 

Rule 25.03. Clark does not identify how or why the Accurant Report was required to be

produced under Rule 25.03. The trial court reviewed the report and found that it was an 

internal document created merely to assist with locating Clark and was not subject to 

mandatory production requirements. Clark offers no argument as to why that ruling was 

incorrect. Absent argument as to why this document was required to have been produced 

under Rule 25.03, there is no error for this court to review regarding whether appropriate

sanctions should be imposed for failure to produce the report.4

Clark also alleges that the State violated Rule 25.03 by failing to produce a record 

of Ward's criminal history prior to trial. Just prior to his death, Ward was wearing a court 

ordered monitoring device on his ankle due to a tampering charge unrelated to the present 

case. Again, Clark fails to state which subpart of Rule 25.03 required production of the 

victim's outstanding criminal charges. We presume that Clark's argument is related to 

subsection (A)(9) of Rule 25.03 requiring the production of "[a]ny material or 

information, within the possession or control of the state, which tends to negate the guilt 

of the defendant as to the offense charged, mitigate the degree of the offense charged, or 

reduce the punishment." Clark argues that under State v. Gonzales, 153 S.W.3d 311, 

312-14 (Mo. banc 2005), information regarding Ward's reputation for violence--including 

 

4

In discussing the State's failure to produce the Accurant Report, Clark comments that Officer Jason Coti 

testified that he shredded his initial interview notes after he prepared his reports. There is no indication that this was 

done to thwart the defense or was a violation of any policy. Clark does not argue that the notes were discoverable or 

that he was prejudiced by their destruction. Further Clark makes no argument that all of the material contained 

within the officer's notes was not included in the reports that were disclosed. As such, we will not address Officer 

Coti's notes.
8

pending criminal charges and arrests--is relevant to Clark's claim of self-defense. 

Gonzales holds that evidence of a victim's reputation for violence is logically relevant to 

a self-defense claim and can be admitted at trial. Id. at 312-13. It does not hold that the 

criminal history of the victim must be produced under Rule 25.03--the only discovery 

order the circuit court entered. Id. In this case, Clark did not establish that Ward's 

pending criminal charges would have negated Clark's guilt or mitigated the degree of the 

offense or reduced his punishment. Therefore, he has not established that it was required

to be disclosed pursuant to Rule 25.03(A)(9).5

Finally, Clark alleges that the State violated Rule 25.03 by failing to turn over the 

in-car police videos and officer pocket recordings following the shooting. The State 

concedes that this information should have been produced.6 The State, however, 

contends that Clark suffered no prejudice by not receiving the videos prior to trial and, as 

a result, the Court's sanction was appropriate. The videos were produced to Clark during 

the trial, but not before trial in response to written discovery.

Clark argues that the decision not to produce videos was willful, citing to the 

State's answers to the circuit court:

The Court: Did you ask [the police] if there were any videos?

[State]: I did not ask for any videos.

 

5 Although Clark's brief indicates he was aware of Ward's pending criminal charges--although not the 

nature of such charges--there is no indication in the record that the court ordered this information produced beyond a 

general production order under Rule 25.03.

6 Although the State does raise arguments as to the proper form in which this material should have been 

produced. Under Rule 25.03(A)(8), the defense was entitled to disclosure in the "form of a written statement by 

counsel for the state."
9

The State, however, went on to explain that generally the police report would indicate a 

video existed alerting her to request the video. Although the court later noted that the 

State should have been aware of the videos because dashboard cameras begin recording 

when lights and sirens are activated on a police car, the court made no specific findings 

that the State was willfully withholding material evidence. 

Further, even if the recordings were intentionally withheld, Clark fails to show 

how the unproduced materials or earlier production of the materials would have aided in 

his defense. Clark's allegations of prejudice all stem from an inability to ascertain the 

conversations on the video and audio records and an inability to "wash" them so that they 

could be clearly presented to the court. Yet, on appeal, Clark fails to identify anything on 

the recordings that, had he had additional time to properly review, would have assisted in 

his defense. 

The only colorable argument that Clark presents is that witness David Mott 

("Mott"), changed his story from his initial interview with police, and the recordings of 

that interview may have assisted with impeachment. Initially, Mott informed officers that 

he had not seen the shooting but his trial testimony was that he witnessed the entire 

shooting.

[Defense]: When the very first police officer interviewed you, where were 

you having the barbecue with your family? Was it in front of the house? I 

don't see the barbecue out there.

[Neighbor]: No, sir, I was in the back of the house.
10

Q: You told the first officer that you were having a barbecue with your 

family which is in the back of the house, when you heard gunshots in front 

of the house . . . you went to investigate and observed the listed suspect 

standing over another black male firing shots downward into him. Do you 

remember telling the officer that?

A: Yes.

Q: According to what you told the officer, right after it happened, you're in 

the backyard at the barbecue, you hear gunshots and then you go to 

investigate?

A: No, that's not what happened.

Q: Well, I just asked you if that's what you told the officer and you said 

yes.

A: I hear you. And you did. And that's actually not the case. I was 

standing in the window before any shots were fired. Because I saw it from 

one to eight.

While certainly the fact that an eye witness changed his testimony is relevant, Clark 

already had that information prior to trial. He did not discover that information from the 

recordings. Further, there is still no indication that Mott's interview was captured on the 

recording and could have been heard and understood after the recordings were "washed."

The trial court itself noted that the State's discovery failures did not appear to 

result in any prejudice to Clark. When the court questioned Clark's attorney regarding 

harm, the only basis for prejudice that was articulated was that a washing of the 

recordings could have potentially led to pertinent evidence. Yet, even now on appeal, 

there is no indication that these recordings did, in fact, have any evidence that would 

have aided the defense. The trial court attempted to address Clark's claims of prejudice--

an inability to fully hear the recordings--by offering to grant a continuance to allow the 
11

recordings to be "washed." We find that the offered resolution was reasonable under the 

circumstances. 

Clark does not demonstrate that the Accurant Report and the open criminal 

charges were subject to discovery under Rule 25.03, nor does he demonstrate prejudice 

stemming from the State's failure to disclose these items. While the State concedes the 

police videos and records should have been produced, Clark failed to establish that he 

suffered fundamental unfairness due to the State's discovery violations. 

B.

In addition to claiming that the trial court's sanction was insufficient, Clark alleges 

that the offered continuance forced him to choose between his Fourteenth Amendment 

rights to due process and his Sixth Amendment right to a speedy trial. 

Clark argues that while he could have accepted the court's offer of a continuance 

to allow him to wash the audio, he would have had to give up a speedy trial to do so. 

There is no evidence to support this argument.

"The right to a speedy trial is provided by the Sixth Amendment of the United 

States Constitution and article I, section 18(a) of the Missouri Constitution." State v. 

Sisco, 458 S.W.3d 304, 313 (Mo. banc 2015). "The federal and Missouri constitutions 

provide equivalent protection for a defendant's right to a speedy trial." Id. (internal 

quotation marks omitted). 

"In analyzing whether a defendant's rights to a speedy trial have been violated, 

courts consider and balance all of the circumstances, and weigh four factors as set forth 

by the United States Supreme Court in Barker v. Wingo: (1) the length of delay, (2) the 
12

reason for the delay, (3) the defendant's assertion of his right, and (4) the prejudice to the 

defendant." State v. Greenlee, 327 S.W.3d 602, 611 (Mo. App. S.D. 2010). None of 

these four factors is "either a necessary or sufficient condition to the finding of a 

deprivation of the right to speedy trial. Rather, they are related factors and must be 

considered together with such other circumstances as may be relevant. Barker v. Wingo,

407 U.S. 514, 533 (1972). "The [Barker] test is obviously not designed to supply simple, 

automatic answers to complex questions, but rather, it serves as a framework for a 

difficult and sensitive balancing process." State v. Ferdinand, 371 S.W.3d 844, 851 

(Mo. App. W.D. 2012) (abrogated on other grounds) (internal quotation omitted). "Thus, 

the right necessarily depends upon the facts and circumstances of each case." Id.; see 

also Vermont v. Brillon, 556 U.S. 81, 91, 93 (2009) ("Barker's formulation necessarily 

compels courts to approach speedy trial cases on an ad hoc basis.... The factors identified 

in Barker have no talismanic qualities; courts must engage in a difficult and sensitive 

balancing process.") (internal quotations omitted).

The record does not include any indication as to whether delaying the proceedings 

to review late discovery would have resulted in a substantial delay. At the time of the 

trial, the court offered Clark the opportunity to continue the trial until discovery could be 

fully reviewed:

THE COURT: The good thing about this is [the] case hasn't closed. It's 

bench-tried. You don't have a jury here waiting, so we can take longer 

time. So if you want, I encourage you to just take this home [to] review, do 

whatever you want to get a clear sound, come back and tell me if you want 

to revisit with witnesses and we'll continue this trial.
13

[Defense Counsel]: Can I talk to my client? Because while that's fine for 

me, my client is sitting in jail.

THE COURT: You asked for a speedy trial.

[Defense Counsel]: Right.

THE COURT: I'm well aware of that. My first week back and here we are. 

So I think you're doing well in that context, but I'm honestly – I've got to 

look at all of this now and that's not going to take me an hour. And I 

suspect there are other trials next week. So this case isn't going away 

today.

. . . .

[Defense Counsel]: Judge, we spotted through the video, my client and I, 

and I think his position is he would like to get this over with.

No questions were asked about the length of a continuance. In effect, Clark's 

attorney made no inquiry as to whether Clark's Sixth Amendment rights would be 

affected. Thus, the trial court made an effort to effectively balance Clark's Fourteenth 

and Sixth Amendment rights. However, Clark rejected that opportunity and chose to 

continue with trial absent full discovery. 

Clark relies heavily on State v. Zetina-Torres, 400 S.W.3d 343 (Mo. App. W.D. 

2013). In Zetina-Torres this Court reversed and remanded to the trial court for retrial 

because the State failed to provide all discovery to the defense. Id. at 353-54. In that 

case, the late-disclosed evidence materially affected the way the State presented its case 

and prejudiced the defendant in presenting his defense. Id. We held that under those 

facts the trial court abused its discretion in refusing to either continue the case to allow 

the defendant to prepare for the newly disclosed evidence or, in the alternative, to refuse 

to allow the State to use the newly disclosed evidence in the trial. Id. at 356-57. That is 
14

not this case. In Zetina-Torres the defendant suffered significant discovery abuses and 

showed clear prejudice resulting from those violations. In the case at bar, although the 

State failed to comply with Rule 25.03, the deficiencies were corrected and the defense 

was given an opportunity to review the discovery and offered a delay in the trial if it so 

chose. 

Similarly, Clark relies on State v. Samuels, 965 S.W.2d 913, 917 (Mo. App. W.D. 

1998), which is also readily distinguishable. In Samuels, the defendant's testimony given 

at his 29.15 hearing was used against him at his retrial. Id. at 915. The court found that it 

was an error for the trial court to allow such testimony because it forced the defendant to 

choose between asserting his Sixth Amendment right to effective counsel and his Fifth 

Amendment privilege against self-incrimination. Id. at 916. Relying on Simmons v. 

United States, 390 U.S. 377 (1968), this Court held that Samuels could not be forced to 

surrender one constitutional right in order to assert another. Id. at 917-20. 

In this case, there is no indication that there was ever actual tension between 

Clark's Sixth Amendment right to a speedy trial and also his Fourteenth Amendment right 

to due process in discovery. When determining whether there was a Sixth Amendment 

violation under Barker, "[u]ntil there is some delay which is presumptively prejudicial, 

there is no necessity for inquiry into the other factors that go into the balance." Dillard v. 

State, 931 S.W.2d 157, 162 (Mo. App. W.D. 1996) (quoting Barker v. Wingo, 407 U.S. 

514, 530 (1972)). Where there is minimal delay of less than sixth months, there is no 

presumption of prejudice. Id. While a delay of over eight months is usually considered 

prejudicial. Id. There is no indication in this case that Clark had been subject to prior 
15

delays. Nor, as we noted above, is there any indication that a delay to review and wash 

the recordings would have caused a delay sufficient to trigger a presumption of prejudice 

and require a more stringent Sixth Amendment speedy-trial inquiry.

To the extent that the State failed to provide Clark with required discovery, he has 

failed to show any actual prejudice resulted, constitutional or otherwise. As such, it 

cannot be said he suffered a "fundamental unfairness" such that this Court will disturb the 

trial court's decision not to impose sanctions on the State by withholding evidence. 

Clark's first point on appeal is denied. 

II.

Clark's second point on appeal alleges that the court erred in both overruling his 

Motion for Judgment of Acquittal at the close of State's evidence and in finding him 

guilty of voluntary manslaughter and armed criminal action because there was 

insufficient evidence to show that he was not acting in self-defense. Clark relies on a 

collection of statements the court made to argue that it was unreasonable for the court to 

find that he was not acting in self-defense and that it relied on inadmissible evidence to 

do so.

In a judge-tried case, our review of a trial court's ruling on a motion for 

judgment of acquittal is for whether there was sufficient evidence from 

which the trial court could have found the defendant guilty beyond a 

reasonable doubt. State v. Brushwood, 171 S.W.3d 143, 146 

(Mo.App.2005). "In making that determination, we accept as true all 

evidence tending to prove guilt together with all reasonable inferences that 

support the finding and ignore all contrary evidence and inferences." Id.

"We do not weigh the evidence or decide the credibility of witnesses, but 

defer to the trial court." Id.
16

State v. Henderson, 311 S.W.3d 411, 413 (Mo. App. W.D. 2010). Similarly, when 

reviewing the sufficiency of the evidence in a court-tried criminal case, we view all 

reasonable inferences "in the light most favorable to the verdict, disregarding any 

evidence and inferences contrary to the verdict." State v. Belton, 153 S.W.3d 307, 309 

(Mo. banc 2005). "The function of the reviewing court is not to reweigh the evidence, 

but to determine if the conviction is supported by sufficient evidence." State v. McCleod, 

186 S.W.3d 439, 443 (Mo. App. W.D. 2006).

To support a claim of self-defense, a defendant must show: 

(1) an absence of aggression or provocation on the part of the defender; (2) 

a real or apparently real necessity for the defender to kill in order to save 

himself from an immediate danger of serious bodily injury or death; (3) a 

reasonable cause for the defendant's belief in such necessity; and (4) an 

attempt by the defender to do all within his power consistent with his 

personal safety to avoid the danger and the need to take a life." State v. 

Thomas, 161 S.W.3d 377, 379 (Mo. banc 2005). "Once the defendant has 

injected the issue of self-defense into the case, the burden shifts to the state 

to prove the absence of self-defense beyond a reasonable doubt." State v. 

Allison, 845 S.W.2d 642, 645 (Mo.App.1992).

Henderson, 311 S.W.3d at 414..; § 563.031. It is not disputed in this matter that Clark 

properly injected the issue of self-defense, and the burden was on the State to prove the 

absence of self-defense beyond a reasonable doubt. 

A person may only use deadly force--in limited exception--when "he or she 

reasonably believes that such deadly force is necessary to protect himself or herself or 

another against death, serious physical injury, or any forcible felony." Id. quoting 

§563.031.2(1). "A person is entitled to acquittal as a matter of law on the basis of selfdefense only if there is undisputed and uncontradicted evidence clearly establishing self-
17

defense." State v. Dulaney, 989 S.W.2d 648, 651 (Mo. App. W.D. 1999). The trial court 

requested and accepted a self-defense instruction7but ultimately held that Clark was not 

acting in self-defense.

The defense presents multiple reasons why the shooting was justified based on 

self-defense noting Ward's erratic behavior (possibly drug induced) just prior to the 

shooting, Ward's possession of multiple guns, Clark's right to use as much force as he 

deemed necessary to protect himself, and Ward's responsibility as the aggressor. These 

facts, however, are not inconsistent with the trial court's findings. 

To demonstrate self-defense, a party must show a "real or apparently real 

necessity" to kill as well as showing such party has taken all steps to avoid the need to 

kill.

8 Henderson, 311 S.W.3d at 414. In this case, the trial court heard witness testimony 

that Clark shot Ward twelve times, most of which while Ward was lying on the ground. 

As the court noted, Clark did not simply shoot from where he was standing but witnesses9

testified that Clark walked around Ward shooting into his body as he lay on the ground. 

The defense highlights the fact that Ward still had control of two guns during the 

shooting. Ramsey's neighbor, Dickens, however, was able to remove Ward's guns from

his control prior to rendering assistance; thus, a reasonable inference is that weapons 

 

7 Although a bench tried case, the circuit court requested both parties to provide verdict directors and jury 

instructions on self-defense.

8 Missouri recognizes the "castle doctrine" in Sections 563.031.2 and 563.031.3. Section 563.031.2(2) 

states that a person is justified in using deadly force against another who unlawfully attempts to enter a dwelling 

occupied by the person exercising such force. Subsection 563.031.3 states that a person has no duty to retreat from 

the residence or private property that is "owned or leased by such individual." In this case, Clark was outside the 

residence of his great-uncle and it is not alleged that he was residing there or had any ownership interest. As such, 

the castle doctrine is not applicable.

9 Clark again argues that the witnesses should have been excluded as sanction for the State's discovery 

abuses. We have addressed that issue fully in point one and do not repeat that analysis.
18

were not within Ward's control at the end of the shooting. The autopsy showed that 

during at least part of the time while he was being shot, Ward was in a defensive position. 

In State v. Henderson, the defendant alleged that she feared the victim was going 

run over her or shoot her and thus she acted in self-defense. 311 S.W.3d at 414. The 

evidence showed, however, that she "did not do everything in her power to avoid firing 

upon [the victim] because the evidentiary photographs and diagrams support an inference 

that she could have escaped the moving truck by getting behind the ice machines outside 

the store, running into the store, or simply running away, without opening fire." Id. In 

this case, the evidence supported a reasonable inference that Clark could have stopped 

firing at Ward when he fell to the ground and removed the guns from Ward's possession

as the neighbor did. Instead, Clark walked around Ward as he lay on the ground and 

fired multiple additional times into him. Based on the facts of this case, we find that it 

was a reasonable inference for the trial court to find that there was no need for Clark to 

continuing to fire down into Ward when he was incapacitated and in a defensive position. 

Further, after shooting Ward, Clark did not render assistance, call for an 

ambulance, or even stay on the scene to tell police his version of events. Clark, instead, 

fled the scene before the police arrived. "[F]light can be considered as indicative of 

[one's] consciousness of guilt." State v. Rodney, 760 S.W.2d 500, 504 (Mo. App. W.D. 

1988). 

Clark seizes on a statement the trial court made at sentencing referring to the facts 

surrounding the shooting as "fuzzy." Clark takes this word and crafts an argument that 

somehow the court should have found that he was acting in self-defense if the court did 
19

not clearly understand what happened. Or, that the court could not find Clark guilty 

"beyond a reasonable doubt" if the court was "fuzzy" as to the events. First, we note, as 

is discussed below, this statement was made in sentencing and does not reference the 

court's finding of Clark's guilt.10 Even were this Court to consider the later statement 

made at sentencing, we find the trial court uses the term "fuzzy" to refer to events 

immediately preceding the shooting and not the shooting itself. There was conflicting 

testimony as to whether Ward attacked Clark with his fists or with a gun. But the 

testimony regarding the shooting itself, including Clark's calm demeanor, shooting the 

victim twelve times, many after he was already down on the ground, and his flight from 

the scene, was consistent and unchallenged. In context, we find that the court was clear 

on the facts of the shooting and could find that Clark was not acting in self-defense.

Second, because the court acknowledged that the events immediately preceding 

the shooting were unsettled, it would have been improper for the court to enter a 

judgment of acquittal at the close of the State's case as Clark argues. Such a judgment is 

only proper where the evidence is "undisputed and uncontradicted." Henderson, 311 

S.W.3d at 414. Neighbor witnesses and the autopsy results support a version of events in 

which Clark did not need to use deadly force because Ward was on the ground in a 

defensive position when Clark walked toward and around Ward continuing to shoot 

downward into Ward. Under this version of events, the fact finder could reasonably 

 

10 Clark's opening brief provides citation to the transcript from trial on January 16, 2014. However, the 

citation given contains no relevant statement from the trial court. The quotations of "fuzzy" and the court's 

statement of "I would be okay with unloading 12 shots" are both from the Sentencing Hearing held June 12, 2014. 

We can find no such similar statements made during the guilt phase of the trial. These statements are not relevant to 

the court's decision on guilt or Clark's self-defense claim because they occurred several months after the court had 

adjudicated Clark's guilt. 
20

conclude that Clark was not entitled to protections of Section 563.031 because Clark used 

more force than was reasonably necessary in violation of the third prong of the test.

Finally, Clark argues that the trial court itself stated that Clark was justified in the 

shooting. Clark's brief provides no quotation attributable to the trial court during the guilt 

phase of the trial. It appears that Clark is referring to statements made by the court in 

sentencing which are more properly considered in Clark's final point on appeal addressed 

below. 

"Where there is conflicting evidence or when different inferences can reasonably 

be drawn from the evidence, whether the defendant acted in self-defense is a question for 

the trier of fact." Henderson, 311 S.W.3d at 414 (citing State v. Allison, 845 S.W.2d 642, 

646 (Mo. App. W.D. 1992)). Even if we grant Clark reasonable inferences surrounding 

the disputed nature of the shooting, the trial court is the proper trier of fact and 

determines whether the circumstances of this case justify self-defense, and the trial court 

found that, in this case, they did not.

Under our standard of review, we view the facts in the light most favorable to the 

verdict. We find that there were sufficient facts upon which the circuit court could have 

found that Clark was not acting in self-defense when he shot Ward.11

Clark's second point on appeal is denied.

 

11 Clark also alleges that the court relied on suppressed evidence in rendering its verdict. In support, he 

again cites to statements made by the trial court at sentencing despite citation to the trial transcript. We find no 

support for the claim that the trial court relied on suppressed evidence during the guilt phase of trial. A claim that 

the court improperly relied on suppressed evidence in sentencing is duplicative of Clark's final point on appeal and 

thus we will review his argument there.
21

III.

Clark's final point on appeal alleges that the court erred in sentencing him as an 

aggravated offender because it improperly relied on suppressed evidence in sentencing. 

No objection was raised during sentencing so our review is for plain error. Rule 

30.20. "The plain error rule should be used sparingly and does not justify a review of 

every alleged trial error that has not been properly preserved for appellate review." State 

v. Beggs, 186 S.W.3d 306, 311 (Mo. App. W.D. 2005). "In determining whether to 

exercise its discretion under plain error review, the appellate court looks to determine 

whether on the face of the appellant's claim substantial grounds exist for believing that 

the trial court committed a 'plain' error, which resulted in manifest injustice or a 

miscarriage of justice." State v. Mickle, 164 S.W.3d 33, 58 (Mo. App. W.D. 2005).

Plain error review involves two steps. First, the court must determine 

whether the trial court committed an evident, obvious and clear error, which 

affected the substantial rights of the appellant. Id. at 58–59. As in the case 

of review for "regular" error, not every obvious error found in plain error 

review mandates reversal. Id. at 59. In the case of review for "regular" 

error, to be reversible, the found error must have prejudiced the appellant. 

Mickle, 164 S.W.3d at 59. Likewise, in the case of review for plain error, 

the error must have prejudiced the appellant, except such prejudice must 

rise to the level of manifest injustice or a miscarriage of justice. Id. Thus, 

even if obvious and clear error is found in the first step of the review, the 

second step of plain error review requires the court to determine whether 

manifest injustice or a miscarriage of justice resulted therefrom. Id.

Beggs, 186 S.W.3d at 311-12 (Mo. App. W.D. 2005). 

During sentencing, the court stated: "Being found asleep in an apartment in 

Kansas. That's an aggravating circumstance." Clark alleges that it was improper for the 

court to consider this fact because the details surrounding his arrest in Kansas were 
22

suppressed. We find that a complete review of the court's statement demonstrates that it 

was not the location of Clark that was problematic in the court's mind but, rather, his 

leaving the scene following the shooting. At sentencing, the court stated that there were 

two factors relevant to sentencing which the court found troubling as to the proper 

sentence. The first factor was the "calmness" with which the shooting occurred, as Clark 

shot Ward twelve times while walking around him and shooting down into his body. The 

second aggravating factor was Clark's failure to remain at the scene. The trial court's full 

statement was:

The second fact is that you left. You left. You got in your car and you left. 

Your mother left. She tore off. That's the evidence. That's hugely 

problematic. Leaving. Being found asleep in an apartment in Kansas. 

That's an aggravating circumstances. You know, if it's self defense, if you 

think you're in the right, you don't leave the scene. But you did. 

When read in context it is clear that the court was sentencing based on Clark's decision to 

flee the scene. While the court mentioned Clark's presence in Kansas. it was not the 

focus of the court's statement; rather, the aggravating fact was Clark left the scene. 

Clark's reference in his brief that Clark's location was "pivotal" to the court's decision is 

inaccurate. The court's full statement accurately reflects that the court relied on Clark's 

fleeing the scene as an aggravating circumstance and there was no error in doing so. 

Further, we find that even if the court relied in some way on the fact that he was 

found asleep in Kansas, under our plain error review, we cannot say that Clark suffered 

manifest injustice. The circuit court spent significant time recounting how the shooting 

occurred--specifically referencing Clark's calmness and his decision to flee prior to police

arriving. We cannot say that, given the other details of this crime, the court's statement 
23

referencing suppressed evidence warrants reversal. See State v. Harris, 2015 WL 

5602138, -- S.W.3d ---, *8 (Mo. App. E.D. Sept 22, 2015) ("vague references to other 

uncharged crimes during trial were insufficient to warrant reversal").

Clark's third point on appeal is denied.

Conclusion

For the reasons stated above, we affirm.

__________________________________

Gary D. Witt, Judge

All concur