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STATE OF MISSOURI, ) ) Plaintiff-Respondent, ) ) v. ) No. SD33590 ) MARION WILLIAM KASPARIE, JR., ) Filed: Nov. 10, 2015 ) Defendant-Appellant. )

APPEAL FROM THE CIRCUIT COURT OF POLK COUNTY Honorable Lisa Carter Henderson, Associate Circuit Judge

AFFIRMED A jury found Marion William Kasparie, Jr. ("Defend ant") guilty of domestic assault in the second degree for acts committed on April 29, 2013 against a household member ("Victim"). 1 Defendant's first two points claim the trial cour t abused its discretion by: (1) "overruling [Defendant]'s reque st for a mistrial during the prosecutor's closing argument" when the prosecutor made "a clear reference to the fact that [Defendant] did not testify"; and (2) "sustaining t he [S]tate's hearsay objection when"

defense counsel asked an officer whether Defendant told him that Victim had attacked

1 See section 565.073.1(1) concerning "Domestic assault, second degree[.]" We are protecting Victim's identity as required by section 566.226.1. Defenda nt waived jury sentencing, the trial court declared a seven-year sentence, then suspended its execution a nd placed Defendant on a five-year term of probatio n. All statutory references are to RSMo Cum. Supp. 201 3. All rule references are to Missouri Court Rules (2015).2

Defendant because the prosecutor "had already opene d the door" by inquiring "about another part of that same conversation[,]" thereby triggering "the rule of completeness[.]" Defendant's third point contends the trial court co mmitted plain error in violation of Defendant's due process rights by "not sua sponte instructing the jury on self-defense" even though Defendant did not request such an instr uction because "the visible injuries to [Defendant] along with [Victim]'s testimony provide d substantial evidence to support a claim of self-defense[.]" Finding no merit in any of these claims, we affirm.

The Evidence 2 On the night of April 28, 2013, Victim went to a r estaurant to eat dinner with a female friend. The two women, "decid[ing] that the evening was young[,]" went to celebrate the friend's birthday by having some drin ks with some male friends at the American Legion hall. Victim called Defendant and invited him to join them, and he eventually did. When Victim wanted to leave, Defen dant did not want to go, so Victim told him that she was leaving with her female frien d. Defendant then grabbed Victim's arm, twisted it, and "said, 'You would rather go wi th that bitch instead of stay here with me.'" Two or three men, observing this interaction , got up from their seats at the bar. When this occurred, Victim "somehow got loose and [ she] left." As Victim went to her female friend's house, Defend ant was constantly calling Victim's phone. Victim did not answer the calls, a nd Defendant "kept leaving messages,

2 Defendant does not challenge the sufficiency of th e evidence to support his conviction, but "we view the evidence in a light most favorable to the defendant " when considering if there was evidence to support the submission of a self-defense instruction. State v. White , 222 S.W.3d 297, 300 (Mo. App. W.D. 2007). As a result, we provide a summary of all evidence rele vant to the resolution of Defendant's points, inclu ding his assertion that the trial court should have sua sponte submitted self-defense to the jury. Additional evidence and procedural background will be included in our analysis of Defendant's points.3

just ranting and raving." Defendant finally left a message that Victim considered "calm enough," and Victim had her friend drive her home. When Victim arrived, Defendant

and a male friend of his were there. After Victim went to bed, Defendant came into the b edroom. Victim testified that Defendant "picked up the mattress and threw [her] o ff of the mattress and told [her that she] wasn't sleeping in his bed." According to Vic tim, she and Defendant "started fighting, arguing back and forth, and [Defendant] h it [her], and then the next thing [Victim knew,] the police [were] there." Bolivar Police Officer Scott Hendrickson responded to the residence around 11:30 p.m. At that time, he did not observe any injuries to either Defendant or Victim. Officer Hendrickson asked Defendant about the "signs of dis turbance" in the master bedroom, and Defendant "said that he did flip the bed off of the box spring. He indicated that no one was on it at the time." No one was arrested, b ut "two minutes later after clearing the scene[,]" officers were again dispatched to the res idence.

Victim testified that there had been "another alter cation[.]" This time, Officer Hendrickson observed that Defendant had "[a] small cut on [his] hand[,]" and Victim had no visible injuries. The officer did not recall se eing Defendant's friend at the residence

on that second visit. Officer Hendrickson talked w ith "[b]oth parties" about the advisability of one of them leaving the residence, but neither agreed to do so. Victim did agree to move into "a different bedroom[.]" After the police left, Victim sat on the living roo m couch, "watching TV," and Defendant came in and out of his bedroom, "just ran ting and raving[.]" Victim recalled that Defendant then came out and "got right in [her ] face." He grabbed her legs, and they4

began "wrestling and . . . fighting." Each hit the other. Defendant "said, 'You're not worth it, bitch,' and walked away." Victim remained on the couch, and Defendant returne d. This time he grabbed her legs and pulled her so that she was "fully on the c ouch." Victim testified that they "were fighting each other." Victim said Defendant did no t have on any pants or underwear, and during the "fighting, [Victim] reached over and [sh e] pulled his scrotum . . . as hard as [she] could to hurt him[.]" Victim recalled that " somehow or another [she] just forced him off of [her] and literally threw him over the c offee table." Victim got to the front door, "getting ready to open" it, but Defendant "sl ammed it shut." According to Victim, "there was a lot of arguing an d mouthing back and forth and fighting back and forth. He hit [her], [she] hit h im." Defendant "head butted [her] several times, and [her] head went back into the bo lt lock . . . on the door." Victim went back to the couch, and Defendant tried to get on to p of her. Both wound up on the floor. Victim "doubled up [her] fist and hit [Defendant] i n the left side of his head as hard as [she] possible could[,]" but that did not "make him stop[.]" "[A]t the very last [Defendant] grabbed both [her] breasts and he pinch ed them as hard as he could, and he got up and said, 'You're not worth it anyway, bitch .'" Victim "ran out the front door and" fled in her vehicle to a parking lot, where she sto pped and "called the police." Officer Hendrickson was dispatched to the parking l ot around 3:00 a.m., and he saw that Victim had been injured. Victim identifie d a photograph admitted into evidence as depicting "cuts" she had at her "right eye and [ on] the bridge of [her] nose." Officer Hendrickson confirmed that, other than the fact tha t the blood appeared to be dry in the exhibit, it otherwise depicted how Victim looked wh en he saw her at the parking lot.5

Other photographs admitted into evidence depicted V ictim's black eye and bruised wrist, breasts, and thighs. After his meeting with Victim in the parking lot, O fficer Hendrickson "immediately responded to the residence[.]" Defend ant met the officers at the door, and he was "[v]ery calm[,]" but he also had "fresh inju ries" in the form of scratches on his cheek and arm, "a cut to his ear[,]" and "a scrape or a contusion [on] his . . . head." Defendant was fully dressed in "a button-up shirt a nd jeans and a hat." A photograph depicting Defendant as he appeared at around 3:30 a .m. (wearing his hat and displaying a scratch on his cheek) was admitted into evidence as one of the State's exhibits. Additional photographs of Defendant, depicting scra tches on his face and arm, a cut on his ear, and a contusion on his head, were also adm itted on Defendant's behalf. This appeal timely followed the trial court's accep tance of the jury's guilty verdict, the denial of Defendant's motion for new trial (pre serving his claims of error regarding points I and II), and the imposition of Defendant's sentence as earlier described. Analysis Point I – Statement by Prosecutor during Closing Ar gument Defendant's first point claims the trial court err ed in failing to grant a mistrial in response to certain comments the prosecutor made du ring his rebuttal closing argument. The comments were made in response to defense couns el's claim that the State's evidence was lacking. In attempting to rebut that argument, the prosecutor started to recount certain evidence adduced by the State, then stated, "Where's the evidence? Where's the – from the Defense, where's the evidence?" Defense c ounsel promptly objected, at which point the prosecutor stated, "There is none."6 Counsel then approached the bench where, in a brief exchange, the trial court cautioned the prosecutor that Defendant did not hav e to produce any evidence. The following colloquy then occurred:

THE COURT: But the objection to that argument will be

sustained. Do you wish cautionary instruction to the -- [Defense Counsel]: We would like to ask for a mist rial. THE COURT: -- jury? Okay. That is denied. [Defense Counsel]: We would ask for a cautionary i nstruction. THE COURT: Okay. And how would you -- how would

you propose? [Defense Counsel]: I think a simple disregard. THE COURT: I suggest that you need -- that the jur y is to

disregard any implication that the Defendant has to prove any element. [Defense Counsel]: And then he can restart his (in discernible). THE COURT: Or prove his innocence. [Defense Counsel]: That would be fine. THE COURT: All right. (Proceedings returned to open court.) THE COURT: Ladies and gentlemen of the jury, the C ourt

wants to inform you that you need to disregard any implication by the Prosecuting Attorney that the Defendant has any burden of producing any evidence of him not being guilty. I think you understand that that burden of proof that he is guilty is on the State. So you will disregard any implication contrary to that, all right? Thank you. Defense counsel made no objection to the form of th e admonition.7 Defendant now claims that the trial court's instruc tion to disregard "was not enough" in that the prosecutor's comment "was a cle ar reference to the fact that [Defendant] did not testify on his own behalf" and was so egregious as to require a mistrial. We disagree.

Comments on the fact that a defendant has exercised his right not to testify are not permitted. State v. Neff

, 978 S.W.2d 341, 344 (Mo. banc 1998); see also section 546.270; Rule 27.05(a). However, even if we were t o assume that the prosecutor's

statement here could be construed as a reference to Defendant not testifying, 3 the general

rule under such circumstances is that the sustainin g of an objection to such a comment -- coupled with a prompt admonition to the jury to dis regard it -- is sufficient to cure any resulting harm. Neff

, 978 S.W.2d at 346. That is exactly what occurred here, and the trial court is in a far superior position to judge the efficacy of such a response. As a result, we defer to its discretion in these matters , and that discretion "is deemed abused only when a trial court's ruling is clearly against the logic of the circumstances then before it and is so arbitrary and unreasonable as t o shock the sense of justice and indicate

a lack of careful consideration." Id. at 345, 347. The challenged remark was brief and isolated, defen se counsel's prompt objection was sustained, and the trial court admonished the j ury to disregard any inference that Defendant had any burden to produce evidence in his defense. 4 The trial court did not

3 In this case, the parties dispute whether the pros ecutor's challenged statement was an improper refer ence to Defendant's decision not to testify or a permiss ible comment on Defendant's failure to rebut the St ate's case — a distinction with legal significance. Cf. State v. Phillips , 940 S.W.2d 512, 519 (Mo. banc 1997) ("The State may refer to a defendant's failure to o ffer evidence, so long as there is no reference to the defendant's failure to testify." (internal citation omitted)). 4 Cf. State v. Wheeler , 219 S.W.3d 811, 817 (Mo. App. S.D. 2007) (finding that "inadvertent, brief, and isolated comment during closing argument coupled wi th the jury instruction was sufficient to cure any prosecutorial error and any prejudice that may have resulted"); State v. Tolliver , 101 S.W.3d 313, 317 (Mo. App. E.D. 2003) (finding no abuse of discretion in denying request for mistrial where improper remark,8

abuse its discretion in denying the request for a m istrial under these circumstances. Point

I is denied. Point II – Defendant's Hearsay Statement Defendant's next point claims that the trial court 's sustaining of a hearsay objection lodged by the State during defense counse l's cross-examination of Officer Hendrickson prevented Defendant from presenting "a defense" and violated the rule of completeness. On direct examination, Officer Hendrickson addresse d Defendant's arrest, which occurred during the officer's third visit to the re sidence. The prosecutor established that, during the course of that arrest, Officer Hendricks on "read [Defendant] his Miranda rights[,]" 5 and Defendant "said he didn't understand his right s." When the officer read them again, Defendant gave the same reply. In cross-examining Officer Hendrickson, defense co unsel asked, "And when you came back that third time, [Defendant] told you tha t [Victim] had attacked him?" The prosecutor promptly objected on the ground that the alleged statement was self-serving hearsay. In response, defense counsel argued that because the prosecutor had elicited from Officer Hendrickson Defendant's responses to t he officer's Miranda warnings, the challenged statement was also admissible under the "theory of completeness." The trial court sustained the prosecutor's hearsay objection, and it did not err in doing so. "As a general rule, '[a] defendant cannot create e xculpatory evidence by introducing self-serving, hearsay statements[.]'" State v. Marshall , 410 S.W.3d 663, 672

made during closing argument rebuttal, "was isolate d, and even assuming that it was made intentionally just before the jury retired and at a time when [th e defendant] could not respond to it, no other comm ent on [the defendants]'s failure to testify was made afte r the trial court's admonition"). 5 See Miranda v. Arizona , 384 U.S. 436 (1966).9

(Mo. App. S.D. 2013) (quoting State v. Beishline , 920 S.W.2d 622, 626-27 (Mo. App. W.D. 1996)). "The rule of completeness provides th at 'where either party introduces part of an act, occurrence, or transaction, the opposing party is entitled to introduce or inquire into other parts of the whole[.]'" State v. Jackson , 313 S.W.3d 206, 211 (Mo. App. E.D. 2010) (quoting State ex rel. Kemper v. Vincent , 191 S.W.3d 45, 50 (Mo. banc 2006)). Defendant claims the rule is applicable here becaus e the statement sought to be admitted was "part of th[e] same conversation" between Defen dant and Officer Hendrickson. For the rule of completeness to be applicable, the statement Defendant sought to

introduce—that Victim had attacked him—"must tend t o explain, contradict, or qualify the portion of the conversation testified to on dir ect examination." State v. Stevens , 757 S.W.2d 229, 234 (Mo. App. E.D. 1988). We fail to s ee (and Defendant makes no attempt to demonstrate) how the alleged statement would hav e provided any additional context to his statements about not understanding Officer Hend rickson's Miranda warnings. Without such a showing, the rule of completeness is not applicable. Point II is denied. Point III – Self-Defense Instruction Defendant concedes that he did not request a self- defense instruction at trial, and

he did not raise a claim of instructional error in his motion for new trial. As a result, he seeks plain error review of his claim that the tria l court erred by failing, sua sponte , to instruct the jury on self-defense. We begin with a reminder that a trial court must a lways be on the lookout for evidence raising the issue of self-defense. State v. Hiltibidal , 292 S.W.3d 488, 494 (Mo. App. W.D. 2009). "If the defendant injects self-de fense into the case and there is substantial evidence to support a self-defense inst ruction, it is reversible error for the trial10

court to fail to submit a self-defense instruction to the jury under plain error review."

State v. Bolden , 371 S.W.3d 802, 805 (Mo. banc 2012). "'Substanti al evidence' is evidence putting a matter in issue." State v. Avery , 120 S.W.3d 196, 200 (Mo. banc 2003). "Whether the evidence raises the issue of s elf-defense is a question of law." State

v. Nunn , 697 S.W.2d 244, 246 (Mo. App. E.D. 1985). Thus, even if a defendant does not request "the ins truction at trial, if 'substantial evidence' is presented to support the giving of an instruction on self-defense, it is error to fail to give the instruction." Hiltibidal , 292 S.W.3d at 493. Further, "[t]he trial court must give the instruction regardless of whether the evidence supporting the justification

defense is inconsistent with the defendant's testim ony or theory of the case[,]" State v.

White , 222 S.W.3d 297, 300 (Mo. App. W.D. 2007), because "any conflict in the evidence is to be resolved by a jury properly instr ucted on the issues." Id. See also Avery , 120 S.W.3d at 203 (even though the defendant test ified at trial that the killing was an accident, it was error to refuse a self-defense instruction when the State's evidence of defendant's prior inconsistent statements supported such a defense). Defendant argues that the evidence relevant to sel f-defense in the instant case consisted of: (1) Officer Hendrickson's testimony that on his third encounter with Defendant, the officer noticed Defendant's "'fresh injuries'" consisting of a scratched cheek and arm, cut ear, and head contusion; (2) the photographs depicting these injuries; and (3) Victim's testimony, as characterized by Def endant, that "in the course of defending herself, she 'hit him in the left side of the head as hard as (she) possibly could,' pulled his scrotum, and threw him over a coffee tab le."11

The State argues that self-defense was not injecte d in this case because "all of the

evidence admitted established that Defendant was th e initial aggressor and therefore was

not entitled to invoke self-defense." The State re lies on the codification of self-defense in section 563.031.1 that permits a person ("the actor ") to use "physical force upon another person when and to the extent he or she reasonably believes such force to be necessary to

defend himself or herself . . . from what he or she reasonably believes to be the use or imminent use of unlawful force by such other person " unless "[t]he actor was the initial aggressor[.]" Section 563.031.1(1). Unless he wit hdraws from the exchange, "[a]n aggressor cannot claim self-defense and does not ha ve the benefit of a self-defense jury

instruction." State v. Gheen , 41 S.W.3d 598, 606 (Mo. App. W.D. 2001). 6 Defendant asserts that "[t]here can be no dispute that [Defendant] and [Victim] both caused physical injury to one another" and tha t this, coupled with Victim's testimony that she hit Defendant "in the course of defending herself," was enough to require a selfdefense instruction. Defendant provides no authori ty for his claim that injuries to both parties and Victim's testimony that she acted in self-defense constitutes evidence that

Defendant acted in self-defense and was not the ini tial aggressor. What Defendant argues is: "[t]he jury was free to disbelieve [Victim]'s testimony about [Defendant] being the initial aggressor and i nstead believe that [Defendant] acted in lawful self-defense. In fact, the jury did not find [Victim] to be a credible witness as shown by their not guilty verdicts on [two other co unts]." 7 This argument ignores the

6 The statute provides that an actor who was the ini tial aggressor may subsequently be justified in defending himself in certain situations, such as wh en his withdrawal is "effectively communicated" to the other person and the other person "persists" with a ctual or threatened "unlawful force"; there are spe cific circumstances involving a law enforcement officer; or "other provision[s] of law" apply. Section 563.031.1(1)(a), (b) and (c). 7 As Defendant points out in his statement of facts, he was found "not guilty of the attempted forcible rape and forcible sodomy counts."12

fact that the other counts on which Defendant was a cquitted charged different offenses. Further, "[a]s the trier of fact, the jury is the s ole arbiter of witness credibility, and it is free to believe or disbelieve all, part, or none of any witness's testimony." State v. Cook , 339 S.W.3d 523, 528 (Mo. App. E.D. 2011). Finally, as earlier noted, self-defense must be inj ected into the case by the defendant before the State is required to disprove it beyond a reasonable doubt and the jury is instructed on it. See section 563.031.5; see also State v. Henderson , 311 S.W.3d 411, 414 (Mo. App. W.D. 2010). This requirement do es not mean that the defendant

himself must be the source of the self-defense evid ence at trial; such evidence may come from the State, and evidence injecting the issue ma y even be contradictory to the defendant's own testimony or theory of defense. See Avery , 120 S.W.3d at 200; White , 222 S.W.3d at 300. Defendant replies that the jury "could have believe d that [Victim] was actually the initial attacker" and this "would perfectly illustr ate a view of the evidence in the light most favorable to [Defendant.]" This argument misa pprehends viewing the evidence in the light most favorable to the giving of the instr uction. Before a self-defense instruction is necessary, there must be evidence from which a reasonable inference could be drawn that the defendant was not the initial aggressor (o r had thereafter withdrawn in such a manner as to qualify for the defense) and that he o r she acted in self-defense -- even if

such evidence could have been disbelieved or was in consistent with other evidence. The fact-finder's prerogative to "[d]isbeliev[e] all co nsistent evidence presented at trial is not the same as having a basis in the evidence to suppo rt an instruction." State v. Pierce , 433 S.W.3d 424, 448 (Mo. banc 2014) (Draper, J., dissen ting) (addressing the requirement to13

instruct the jury on all "nested" lesser-included o ffenses). The jury's ability to disbelieve Victim's testimony that Defendant was the initial a ggressor does not constitute

affirmative evidence that Defendant was not the ini tial aggressor. Point III is also denied, and the judgment of convi ction and sentence is affirmed.

DON E. BURRELL, P.J. - OPINION AUTHOR GARY W. LYNCH, J. - CONCURS WILLIAM W. FRANCIS, JR., J. - CONCURS