1 STATE OF MISSOURI, ) ) Plaintiff

- Respondent , ) ) vs. ) No. SD3 6 543 ) BRADLEY DOUGLAS COOK, ) Filed : December 9, 2020 ) Defendant

- Appellant

. )
APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY Honorable Gayle L. Crane , Circui t Ju dge
AFFIRMED Bradley Douglas Cook (“ Appellant ”) was convicted of first

- degree assault and armed criminal action, violations of section s 565.050 and 571.015, which stemmed from an altercation at a homeless shelter between Appellant and the v ictim. 1 A ppellant claimed self

- defense at trial. Appellant brings three points on appeal : ( 1) the trial c ourt erred by refusing evidence that the victim was under the influence of methamphetamine at the time of the claimed assault ; ( 2) the trial court erred or pl ainly erred in refusing a proffered self

- defense instruction regarding withdrawal ; and ( 3) the trial c ourt plainly

1 All refere nces to statutes are to RSMo Cum.Supp. 2017, unless otherwise specified.2 erred in submitting the verdict director for assault in the first degree without a paragraph required by the Missouri Approved Instructions ( “ MAI ” ). We deny all three points and affirm the conviction. Point I Appellant claims that the trial court abused its discretion in limiting Appellant’s defense by precluding Appellant from presenting evidence that the alleged victim was under the influe nce of methamphetamine during the altercation. Specifically, Appellant offered the medical records of the v ictim which indicated that , on the night of the altercation, the v ictim tested positive for methamphetamine. Additionally, Appellant offered the te stimony of two doctors regarding their observations about people using methamphetamine and opinions that when someone tests positive at the hospital, the assumption is made that they have used meth amphetamine within the last 24 hours. Finally, Appellant a ttempted to testify as to his opinion that the v ictim was using methamphetamine at the time of the altercation. The trial court refused all of the evidence. As to the proffered medical record, the trial c ourt refused it because the presumptive t est wou ld not necessarily show that the victim was “ high on it this day” as opposed to a residual result from earlier ingestion. The trial court ruled the evidence would be admissible if a doctor or expert could establish that the victim was high at the time of the assault or could establish some sort of level of methamphetamine use on that day. The trial c ourt ruled that Appellant’s lay testimony would be insufficient to establish that the victim was impaired by methamphetamine at the time of the altercation.3 Appellant did make an offer of proof by two doctors. The first doctor who stated that methamphetamine is a “mind

- altering substance , ” which can cause a person to be irrational and aggressive; however, he did not know the half

- life of methamphetamine and did not know how long it typically stayed in someone’s system. The doctor testified that people on m eth amphetamine can “[ d ] o stuff that they normally would n’t do. ” He did not claim to be an expert on urine drug test s but does trust the results for accur acy when he gets them for medical diagnosis and treatment. Likewise, he d i d not know the cutoff level for methamphetamine in a urin e test. An emergency room doctor testified that he had seen a lot of people in the emergency room where he worked who had used methamphetamine. H e considers the urine screening for methamphetamine to be generally reliable. He testified that if someone tested positive for methamphetamine on a urine test, they would have used meth amphetamine within the last 24 hours. Althoug h he was familiar with the urine screening procedures for his hospital, he also did not know the half

- life of methamphetamine and did not know the cutoff level for the test. The doctor testified that the emergency room staff “generally” infers that the u sage was within the previous 24 hours, but that was because people they treated were symptomatic so it would look like acute intoxication. He did not know about the testing protocols at the hospital where the

v ictim was treated. Appellant also made an of fer of proof of his testimony. He testified that he had seen people on methamphetamine almost daily and had seen easily over 100 people under the influence of methamphetamine

. Appellant testified that people on methamphetamine would be hostile, aggressiv e, agitated, and hyperactive, they would not be able to sit still.4 He further testified that while under the influence of methamphetamine, their pupils get huge. H e further testified that in the week that he had seen the victim, the victim appeared argum entative, agitated, antsy and hyperactive. He claimed that on the night of the altercation, the victim was argumentative and hostile when the victim started to get physical with Appellant and the victim’s pupils were dilated. He further testified that he had “heard rumors” that the victim used meth amphetamine and it appeared more than likely that the victim was under the influence of methamphetamine because i t had been the drug of choice around there for years.
Because of our standard of review, as se t forth in State v. Burge , 596 S.W.3d 657 (Mo.App. S.D. 2020), we must reject Appellant’s argument. “The trial court has broad discretion to exclude or admit evidence at trial. This Court will reverse only upon clear abuse of discretion.” State v. Shockl ey , 410 S.W.3d 179, 195 (Mo. banc 2013). “We further note that we review for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial.” State v. Bumbery , 492 S.W.3d 656, 665 (Mo. App. S .D. 2016) (internal quotation and citation omitted). “Trial court error is not prejudicial unless there is a reasonable probability that the trial court’s error affected the outcome of the trial.” Id.
Id. at 661. We reject Appellant’s claim because we ca nnot find that the error was so prejudicial that Appellant was denied a fair trial. There was evidence of the v ictim’s aggressiveness to ward Appellant from the testimony of Appellant and an eye witness of the altercation. The eye witness testified that : the v ictim yelled and shouted at Appellant several times and t ook an aggressive stance toward Appellant ; the v ictim got in the way of Appellant doing his chores at the homeless shelter ; and the v ictim “got in” Appellant’s face. The eye witness testified that he would have felt threatened had he been in5 Appellant’s position. Further, the eye witness testified t hat the v ictim, who was bigger than Appellant, initially knocked Appellant to the ground and continued to punch him after he was down before Appell ant was able to regain the upper hand and began punching the victim

. After the two wrestled on the ground, the eye witness heard the

v ictim say, “ Y ou stabbed me ? ” and Appellant respond , “ Yes, you’re d amn right I did

. ” Further, the jury heard evidence f rom Appellant that he was afraid, injured and acting in self

- defense. The jury heard about previous assaults by the v ictim and that the

v ictim appeared angry and agitated for some reason. When the victim interfered with Appellant’s chores, Appellant push ed the victim back with a broom

. Appellant was then hit in the head by the v ictim and the victim punched Appellant so hard in the chin it rocked Appellant and he fell forward onto the ground

. The victim continued to punch Appellant on the ground and , at some point during this altercation , Appellant suffered a dislocated shoulder. He testified that while the v ictim continued to throw punches at him, Appellant was afraid and stabbed him with the knife he had been using as a box cutter in his chores. The j ury heard that after Appellant walked away from the fight he told a police officer that he defended himself, that he was in fear for his life , and needed medical attention. He led the officers to the knife he used. The v ictim was not able to refute the d etails of the fight because he went “blank” after the initial verbal confrontation. Despite all of this testimony, the jury convicted Appellant of first

- degree assault and armed criminal action. We fail to see how the admission of evidence as to why the v ictim was so aggressive would have changed the result. The introduction of evidence that the v ictim was using methamphetamine would not affect whether Appellant assaulted the v ictim with the knife. Ignoring the first prong6 of whether it was error to den y the evidence, we cannot find that there is a reasonable probability that the trial court’s error affected the outcome of the trial. The jury simply did not believe that Appellant acted in self

- defense when he used the knife against the

v ictim. Point I must be denied. Point II In Point II, Appellant claims that he was entitled to language in the self

- defense instruction that he attempted to “withdraw” from the altercation because of his act in pushing the victim away from him early in the encounter. App ellant did not include this claim in his motion for new trial, thus, it is reviewed for plain error only. Generally, we reverse for instructional error if there is error in submitting an instruction and prejudice occurs to the defendant. State v. Westfal l , 75 S.W.3d 278, 280 (Mo. banc 2002). The key inquiry is if the trial court “misdirected or failed to instruct the jury such that the error affected the jury’s verdict, resulting in manifest injustice or miscarriage of justice.”
State v. Marshall , 302 S .W.3d 720, 725 (Mo.App. S.D. 2010) (internal quotations and citation omitted). The initial question is whether the court misdirected or failed to instruct the jury. The evidence from both App ellant and the eye witness was that it was Appellant who initi ated physical contact by using a broom he was holding to push the victim back. Appellant claims that his effort at pushing the v ictim away was so that each kep t to themselves because the v ictim was getting in his face and threatening him. He said he

was trying to calm the v ictim down; however, as soon as he pushed the victim away, the

v ictim lun g ed at him and started attacking him.7 The question as posed here is when did the confrontation begin. Appellant contends that it began with the v ictim screaming at him, that the v ictim was the initial aggressor by getting into his face. Appellant claim s that his effort to withdraw was pushing the v ictim away from him. The State argues that Appellant was the initiator and that the confrontation occurred when Ap pellant pushed the v ictim. The State argues that once the initial push started the confrontation , Appellant did not withdraw from the confrontation and thus no “withdrawal” instruction was necessary. The trial court accepted the position of the State , tha t the altercation began when the v ictim was pushed by Appellant, stating, “ [ I ] f the jury believes [ the v ictim] that [Appellant ] is the initial aggressor the act of the initial aggressor would have been taking the broomstick and pushing [ the v ictim .] A t th at time, since [he] is the initial aggressor, he would have had to do something else, he being [Appellant] , that would clearly indicate to [ the v ictim ] that he wanted to end the encounter. And the C ourt has not seen any such evidence.” The trial court di d not err in finding that , after the physical confrontation commenced, Appellant made no effort to withdraw from the physical confrontation. The jury was given a self

- defense instruction and could have found that the v ictim was the aggressor and that Appe llant was simply defending himself in the best way he could from the larger and verbally aggressive v ictim. The factfinder did not do so. Appellant has failed to demonstrate that he suffered a manifest injustice when the trial court refused to add his re qu ested paragraph to the self

- defense instruction. Point II is denied. Point III Appellant contends in his third point that the trial court plainly erred in s ubmitting the verdict director for first

- degree assault without a cross reference to the instruction for8 self

- defense as mandated b y the instructions in the MAI

. Appellant did not object to the failure, nor include the issue in his m otion for n ew t rial. So, again, we review for plain

error. In this case, the self

- defense instruction di d state that “ the [ S ] tate has the burden of
pro ving beyond a reasonable doubt that [Appellant] did not act in lawful self

- defense. Unless you find beyond a reasonable doubt that [Appellant] did not act in lawful self

defense, you must find [Appellant] not guilty. ” Clearly, it would have been better t o link the two instructions ; however, we do not find a manifest injustice or a miscarriage of justice. The jury was not misled by the failure to link the verdict director with the self

defense instruction. The jury was properly instructed that it was the State’s burden to show that Appellant did not act in self

- defense. Both the prosecutor and defense counsel explicitly referred to the self

- defense instruction. Appellant’s entire case w as that he had acted in self

- defense because of his fear of the v ict im. We cannot find that the trial court plainly erred in not linking the two instructions. Point III is denied. The judgment is affirmed.

Nancy Steffen Rahmeyer, P. J.

– Opinion Author Daniel E. Scott, J.

– Concurs William W. Francis, Jr., J.

– Concurs