# In the Missouri Court of Appeals **Eastern District** DIVISION FIVE STATE OF MISSOURI, ) No. ED101043 ) Plaintiff/Respondent, ) A ppeal from the Circuit Court ) of the City of St. Louis v. ) ) ANDREW JOHNSON, ) Honorable John J. Riley ) Defendant/Appellant. ) Filed: March 10, 2015 Introduction Andrew Johnson (Appellant) appeals from the trial court’s judgment convicting him of first-degree assault, armed criminal action, and unlawful use of a weapon. We affirm Appellant’s conviction and senten ce, but remand for correction of judgment nunc pro tunc . Factual and Procedural Background On July 27, 2011, Appellant was charged with first-degree assault (Count I), armed criminal action related to the first-degr ee assault charge (Count II), unlawful use of a weapon (Count III), and leavi ng the scene of a shooting (CountIV). The evidence in the light most favorable to the verdict is as follows. On June 15, 2011, Guy Atchison (Atchison), a driver for Countrywide Asset and Auto Recovery (Countrywide), was assigned to repossess a car belonging to Appellant’s daughter, Susie Lothridge (Lothr idge). Atchison drove his to w truck to Lothridge’s home2 and located the car in the gated parking lot of the building in which Lothridge resided. Atchison was not permitted to enter gated parking lots to repossess vehicles. As Atchison was filing a report indi cating that another attempt to retrieve the car should be made later, he saw Lothridge get into the car and drive out of the parking lot. The street was barricaded at one end, leaving only one way for ingress and egress. Atchison pulled his truck into the street , blocking Lothridge’s path. Atchison exited his truck, approached Lothridge’s vehicl e and told her that he had an order to repossess her vehicle. Lothridge responde d, “Well, you’re not repossessing my vehicle today.” Atchison told Lothridge he was going to call the police. Atchison returned to his truck and called both his supervisor and th e police. Lothridge drove back into the parking lot. Atchison backed his truck out of the street and waited for the police to arrive. Lothridge, a police officer, called her fa ther, Appellant, telling him that a man was blocking her in and preventing her from going to work. Appellant arrived in his vehicle approximately five minutes later, pu lled into the parking lot, and instructed Lothridge to follow him out of the lot. Loth ridge did not tell Appella nt that Atchison was attempting to repossess her vehicle and explaine d at trial that she called Appellant instead of the police because “I knew that my dad was the type of dad that would come down and settle any monetary thing that I had going on with this...car.” When Appellant drove out of the parking lot followed by Lothridge, Atchison pulled his truck into the street , blocking both cars from leaving. Lothridge and Appellant exited their vehicles and Appellant approached the tow truck. As Atchison started to roll down his window to talk to Appellant, Appella nt grabbed the tow tr uck’s door handle and3 tried to open the door. The truck was locked and Appellant’s hand slip ped off. Appellant lifted his shirt, revealing the handle of a gun tucked into hi s waistband. Atchison put the truck into drive and, as he pushed on the accelerator, he heard a gunshot and felt a burning sensation in his back. Atchison heard more shots as he drove off. Atchison hit a curb and went airborne before hitting a pill ar and a parked car and colliding with an ambulance. Atchison and the ambulance driver both ju mped out of their vehicles. Once Atchison explained to the driver that he had been shot, the paramedics placed him in the ambulance and took him to the hospital. Atch ison had surgery to extract the bullet and later underwent physical therapy. At the time of trial, Atchison continued to have physical issues from a muscle to rn as a result of the shooting. Appellant returned home afte r the shooting. When polic e arrived at the scene, Lothridge gave them Appellant’s address. Officers were dispatched to Appellant’s apartment, where they recovered a loaded revolver and three shell casings from the kitchen trash. Appellant told police he fired at Atchison because Atchison had pointed a black semi-automatic handgun up in the air. Police searched the ambulance, the scene, and the tow truck, but never located a wea pon. No gun was recovered from Atchison by the hospital staff. The tow truck had three gunshot holes in th e driver’s side window and door area. The driver’s side window was shattered and one bullet went through the metal and into the cab of the truck. At trial, Appellant testified when he approached Atchison in the tow truck, Atchison’s window was down and Atchison was pointing a gun at Appellant. Appellant4 testified he was afraid and felt he was in danger so he pulled hi s weapon and shot at Atchison three times while running toward the back of the truck. The jury found Appellant guilty of first-de gree assault (Count I); armed criminal action (Count II); and unlawful use of a w eapon for carrying a concealed firearm (Count III), and acquitted Appellant on the charge of leaving the scene of a shooting (Count IV). On January 31, 2014, the trial court orally pronounced its order, judgment, and sentence, imposing ten years’ imprisonment, suspended execution of sentence with five years’ probation, for the first-degree assault conviction; three years’ imprisonment on the armed criminal action conviction; and suspe nded imposition of sentence with five years’ probation on the unlawful use of a weapon conviction. On the same day, the court entered a written judgment accurately reflecti ng its oral pronouncement of sentence on the armed criminal action and unlawful use of a weapon convictions but inaccurately indicating Appellant’s sentence on the first-degree assault conviction was three years’ imprisonment, suspended execution of sentence w ith five years’ probation. This appeal follows. Points Relied On In his first point, Appellant argues the ju ry’s verdict was against the weight of the evidence, in that the evidence presented s howed Atchison was the initial aggressor and Appellant was acting in self-defense. In his second point, Appellant argues the trial court erred in not allowing Exhibit A, a complete copy of Countrywide’s Field Ag ent’s Guide (Field Guide), to be published to the jury and instead requiring a redacted version be submitted.5 In his third point, Appellant contends th e trial court erred in denying Appellant’s request to present evidence as to Mi ssouri Revised Statutes Sections 574.010 1 and 565.130, governing peace disturbance and unlawfu l imprisonment, respectively, in that the defense should have been permitted to present evidence that Atchison might have violated the law while attempting to reposse ss Lothridge’s vehicle and was the initial aggressor in the encounter. Discussion Point I In his first point relied on, Appellant ar gues the verdicts were against the weight of the evidence because the evidence demonstr ated Atchison was the initial aggressor and Appellant was acting in self-defense. Th e argument portion of Appellant’s brief does not address self-defense but instead argues the evidence presented was insufficient to establish the elements of the crimes. As a preliminary matter, we note that A ppellant’s Point I does not comply with Rule 84.04. 2 Rule 84.04 sets forth the mandatory rules for appellate briefing. DuncanAnderson v. Duncan, 321 S.W.3d 498, 499 (Mo. A pp. E.D. 2010). A party’s failure to substantially comply with Rule 84.04 preser ves nothing for review and is grounds for dismissing an appeal. Lueker v. Mo. W. State Univ., 241 S.W.3d 865, 867 (Mo. App. W.D. 2008). An appellant is required to develo p the issue raised in its point relied on in the argument portion of the brief. Carlisle v. Rainbow Connection, Inc., 300 S.W.3d 583, 585 (Mo. App. E.D. 2009). Undeveloped issues are not preserved fo r appeal. State v. Dvorak, 295 S.W.3d 493, 500 n. 3 (Mo. App. E. D. 2009). Furthermore, Rule 84.04(e)

1 All statutory references are to RSMo 2006. 2 All rule references are to Mo. R. Crim. P. 2014.6 provides that “[t]he argument shall be limite d to those errors included in the ‘Points Relied On.’” Issues that app ear only in the argument sec tion of the brief and are not included in the Point Relied On are not prope rly presented for appellate review. State v. Thompson, 341 S.W.3d 723, 728 n. 1 (Mo. App. E. D. 2011). Although a deficient brief preserves nothing for review, we prefer to decide criminal cases on the merits and, therefore, will exercise our discretion and re view Appellant’s claim that the State failed to present sufficient evidence to support his convictions as ra ised in the argument portion of his brief. 3 On review of a challenge to the sufficiency of the evidence, this Court is limited to determining whether the evidence was sufficient for a reasonable person to find Appellant guilty beyond a reasonable doubt. State v. Rousan, 961 S.W.2d 831, 841 (Mo. banc 1998). We view the evidence, and all reas onable inferences drawn therefrom, in the light most favorable to the verdict. Id. Itis the jury’s duty to assess the reliability, credibility, and weight of the witness’s testimony. St ate v. Giles, 949 S.W.2d 163, 166 (Mo. App. W.D. 1997). A person commits first-degree assault wh en he “attempts to kill or knowingly causes or attempts to cause serious physical injury to another pers on.” Section 565.050. “Serious physical injury” is de fined as a “physical injury that creates a substa ntial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body[.]” Section 565.002(6).

3 Appellant challenges the sufficiency of the evidence for each of his convictions, including his conviction for unlawful use of a weapon in Co unt III for which he received a su spended imposition of sentence. A conviction resulting in a suspended imposition of sentence, however, is not a final appealable judgment so this Court will not review Appellant’s conviction on C ount III. State v. Bone, 447 S.W.3d 757 (Mo. App. E.D. 2014).7 On appeal, Appellant argues the evid ence was insufficient to support his convictions for first-degree assault and the related charge of armed criminal action because the State failed to prove beyond a reasonable doubt that Appellant did not “merely” fire his gun but that he fired his gun for the purpose of attempting to kill or cause serious physical injury. “‘Direct proof of a required mental state is seldom available and such intent is usually inferred from circumstantial ev idence.’” State v. Beam, 334 S.W.3d 699, 707 (Mo. App. E.D. 2011), quoting State v. Holleran , 197 S.W.3d 603, 611 (Mo. App. E.D. 2006). “A defendant’s mental state may be determined from evidence of the defendant’s ‘conduct before the act, from the act itself , and from the defendant’s subsequent conduct.’” Id. The evidence at trial viewed in the light most favorable to the jury’s verdict was that as Appellant approached the tow truc k, Atchison started to roll his window down in order to speak with Appellant. Once Appe llant reached the tow truck, he immediately tried to open the door of the truck. Finding it locked, Appellant lifted his shirt, revealing the butt of a handgun tucked into his wais tband. Upon seeing the handgun, Atchison attempted to flee by putting the truck into gear and hitting the accelerator. As he began driving away, Appellant fired th ree shots into the truck’s dr iver’s side door and window, shattering the window and striki ng Atchison in the back. Appellant’s actions throughout his enc ounter with Atchison, including firing multiple shots at Atchison while he fled, cr eate a reasonable inference that Appellant intentionally fired a lethal weapon at Atchison for the purpos e of attempting to kill or cause serious physical injury to Atchison. The State produced sufficient evidence from8 which a reasonable trier of fact could find Appellant guilty beyond a reasonable doubt of first-degree assault and the related charge of armed criminal action. Based on the foregoing, Appellant’s Point I is denied. Points II and III Next, Appellant raises two arguments rega rding the presentation of evidence and argument that Atchison’s conduct of blocki ng Lothridge’s and Appellant’s vehicles amounted to criminal conduct and that such information was relevant to show that Atchison was the initial aggr essor in the encounter and supported Appellant’s selfdefense theory. Use of deadly force in self-d efense requires the following: (1) an absence of aggression or provo cation on the part of the defender, (2) a real or apparently real necessity fo r the defender to kill in order to save himself from an immediate danger of se rious bodily injury or death, (3) a reasonable cause for the defender’s be lief in such necessity, and (4) an attempt by the defender to do all with in his power consistent with his personal safety to avoid the dange r and the need to take a life. State v. Crawford, 904 S.W.2d 402, 405-06 (Mo. App. E.D. 1995). To be admissible, evidence must be l ogically and legally relevant. State v. Dennis, 315 S.W.3d 767, 768 (Mo. App. E.D. 2010). Evidence is logically relevant if it tends to make the existence of a material factmore or less probable , and legally relevant if its probative value outweighs its prejudicial effect. Id. “Determination of the relevancy and admissi bility of evidence is a matter clearly within the discretion of the trial court and will not be reversed in the absence of an abuse of that discretion.” State v. Kidd, 990 S.W.2d 990 S.W.2d 17 5, 178 (Mo. App. W.D. 1999). The trial court abuses its discretion when its ruling is clearly against the logic of the circumstances and is so unreas onable that it indicates a la ck of careful consideration.9 State v. Forrest, 183 S.W.3d 218, 223 (Mo. banc 2 006). We review the trial court “for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fairtrial.” Id. at 223-24. Trial court error is not prejudicial unless there is a reasonable probabi lity that the error affected th e outcome of the trial. Id. at 224. Point II - Exhibit A1 During a pre-trial confer ence, the court discussed with counsel Appellant’s request to present evidence of the Field Guide, a manual given to Countrywide’s employees, which included a provision di recting the company’s drivers to halt repossession efforts if a debtor objects to repossession of the ve hicle and a breach of peace occurs. The court ruled Appellant could present evidence and argument that Atchison did not follow his company’s rules an d his actions constitu ted a breach of peace. The court also ruled Appellant could no t tell the jury what legally constitutes a breach of peace or present as evidence a legal definition of a breach of peace as contained in the Field Guide. During trial, Appellant cr oss-examined Atchison with a copy of the Field Guide and the guide was admitted into evidence ove r the State’s objection as Exhibit A. Prior to Appellant’s case-in-chief, the c ourt and counsel discussed Appellant’s use of portions of the Field Guide in questioni ng Patrick Linsenbardt (Linsenbardt), the Operations Partner at Countrywide. Th e court agreed Appellant could question Linsenbardt about most of the Field Guide’s provisions but ruled Appellant could not ask about the definition of a breach of peace that referenced the criminal law and could not ask about a provision that referenced lawsuits and insurance. Defense counsel did not10 object to the court’s ruling, instead indicating he would comply. Th e court asked counsel whether the Field Guide needed to be redact ed in the event the jury asked to see the exhibits during deliberations. Defense c ounsel indicated he planned to have a PowerPoint presentation prepared isolati ng the authorized provisions and the court suggested that a hard copy of the PowerPoint be made a nd marked as Exhibit A1. During his examination of Linsenbardt, Appellant questioned him about the Field Guide and whether Atchison complied with the guide while trying to repossess Lothridge’s car. Linsenbardt was also permitted to read some examples from the Field Guide of actions that would constitute a breach of peace. At the close of the evidence, the State objec ted to some of the contents of Exhibit A1. The court sustained some of those objec tions and defense couns el indicated, without objection, that he would make the additional re dactions. The court asked whether Exhibit A1 could be admitted with the understanding thatif the jury requested to see exhibits, it would receive Exhibit A1 and not Exhibit A. Both the prosecutor and defense counsel indicated their agreement with that procedur e. During deliberations , the jury requested “the handbook for the repo agency” and the co urt submitted Exhibit A1 without objection from Appellant. Appellant’s motion for new trial contained a claim that the trial court erred in admitting Exhibit A in to evidence but not a llowing the exhibit to be shown to the jury. On appeal, Appellant asserts the trial c ourt erred in not allowing the complete Field Guide to be published to the jury and requiring Appe llant to create Exhibit A1, a version redacting a legal definition of a br each of peace for presentation to the jury.11 At trial, Appellant not only failed to ob ject to the creation of the exhibit, its admission into evidence, or its submission to the jury but also repeatedly acquiesced to these actions. After the jury requested the Field Guide, the court asked counsel whether submitting Exhibit A1 to the jury was acceptable and defense counsel answered “Yes.” Appellant’s agreement to the submission of Exhibit A1 to the jury amounts to an affirmative waiver of appellate review of the issue. See State v. Williams, 118 S.W.3d 308, 313 (Mo. App. S.D. 2003) (“As distinguishe d from a simple failure to object, an announcement by the defense of ‘no objection’ amounts to an affirmative waiver of appellate review of the issue.”). Although Appellant waived this error for appellate review by failing to raise a specific objection to the submission of the e xhibit, this Court can still review unpreserved claims of plain error. Rule 30.20; St ate v. Wurtzberger, 40 S.W.3d 893, 897-98 (Mo. banc 2001). Under the plain error standard, we will reverse when a pl ain error affecting a substantial right results in manifest injustice or a miscarriage of jus tice. Rule 30.20; State v. Johnson, 220 S.W.3d 377, 385 (Mo. App. E.D. 2007) . It is a defendant’s burden to demonstrate that the error prejudiced him a nd will result in a manifest injustice or a miscarriage of justice. Johnson, 220 S.W.3d at385. Appellant has failed to demonstrate that the redacted portions of the Field Guide we re relevant or that submitting the redacted guide in place of the complete guide a ffected the outcome of the trial. The criminal definition of a breach of p eace in the Field Guide was not logically relevant to Appellant’s self-defense th eory. Whether Atchison’s conduct during the repossession could have fit a criminal defini tion of a breach of peace in no way tends to establish that Atchison was the initial aggre ssor in the encounter or whether Appellant12 reasonably believed there was a real or apparently real necessity to kill in order to save himself from an immediate danger of serious bodily injury or death. Crawford, 904 S.W.2d at 405-06. See also State v. Beck, 167 S.W.3d 767, 787, 789 n.5 (Mo. App. W.D. 2005), overruled on other grounds by State v. Bolden, 371 S.W.3d 802, 805-06 (Mo. banc 2012) (under the self -defense statute, a reasonab le belief by defendant of use or imminent use of unlawful force by the vic tim does not require proof that the victim’s acts of force were actually unlawful and the la wfulness of the victim’s act should not be confused with the purpose of the self-defen se instruction, which is to determine the lawfulness of the defendant’s acts in response thereto). Under a self-defense theory, the re levant inquiry is whether Appellant reasonably believed, based upon Atch ison’s actions, that there was a real or apparently real necessity for him to kill Atchison in order save himself from immediate danger of serious bodily injury or death. This que stion is answered by looking to Atchison’s conduct, not to whether such conduct might be able to support a criminal conviction. The trial court allowed Appellant to pr esent evidence of Atchison’s conduct and Appellant’s response to the conduct to establish that Atchison was the initial aggressor. The court placed no substantive restrictions on Appellant’s ability to present evidence describing the events that transpired before , during, or after the attempted repossession and shooting. The court also allowed Appe llant to question Atchison and Linsenbardt about the Field Guide’s provisions regardi ng Countrywide’s repo ssession procedures, including the provisions against continuing re possession efforts in the event of a breach of peace and examples from the guide as to wh at actions constitute a breach of peace.13 At trial, Appellant’s self-defense theo ry was predicated upon his testimony that when he approached Atchison’s tow truc k, Atchison was pointing a gun at him and Appellant drew his weapon and fired at At chison because he was afraid for his and Lothridge’s safety. Under the facts of this case, Appellant could onl y sustain his use of deadly force against Atchison by convincing th e jury that Atchison used or displayed a handgun against him. The mere act of blocki ng someone’s car by itself, whether criminal or not, would not justify a response of deadly fo rce. The jury verdicts demonstrate that in the face of conflicting testimony regarding wh ether Atchison was armed with a gun and pointed said gun at Appellant, the jury f ound Appellant’s testimony less credible or convincing than the contradictory evidence. The trial court did not err in submitting to the jury an exhibit redacting the criminal definition of a breach of peace fr om the Field Guide because the proposed evidence was not logically releva nt to Appellant’s self-defense theory. Further, there is not a reasonable probability that the exclusi on of the guide’s definition of a breach of peace affected the outcome of the trial. Ba sed on the foregoing, Appellant’s Point II is denied. Point III - Missouri Crimin al Statutes Governing Peace Disturbance and Unlawful Imprisonment In his third point, Appellant contends th e trial court erred in refusing to allow Appellant to read from the Missouri Re vised Statutes governing criminal peace disturbance and unlawful imprisonment in orde r to demonstrate that Atchison might have violated the law while attempting to repossess Lothridge’s vehicle because this evidence was relevant to the issue of whether Atch ison was the initial a ggressor and supported Appellant’s self-defense theory.14 Appellant has failed to demonstrate that the criminal statutes were logically relevant or that their exclusi on affected the outcome of the tr ial. As already discussed in Appellant’s Point II, whether or not At chison’s conduct during the repossession could have amounted to criminal conduct in no way tends to establish that Atchison was the initial aggressor in the encounter or whethe r Appellant reasonably believed there was a real or apparently real necessi ty to kill in order to save himself from an immediate danger of serious bodily injury ordeath. Crawford, 904 S.W.2d at405-06. See also Beck, 167 S.W.3d at 787, 789 n.5. Furthermore, as a general rule , instructing the jury as to the law is a prerogative of the court which may not be usurped by c ounsel. See Nicholls v. Kammerich, 626 S.W.2d 653, 659 (Mo. App. W.D. 1981) (counsel may not instruct the jury as to a rule of law in closing argument; such declarations must be made by the judge), and State v. Brightman, 388 S.W.3d 192, 201 (Mo. App. W.D. 2012) (app lication of rule during closing argument). Thus, it would be improper for Appell ant to have instructed the jury as to the law, especially irrelevant law directed solely at the victim’s allege dly uncharged criminal conduct. The trial court did not err in refusing to allow Appellant to present evidence of the Missouri Revised Statutes governing peace disturbance and unlawful imprisonment because the evidence was irrelevant and woul d not have aided Appellant’s self-defense theory. In addition, Appellant was able to present evidence of Atchison’s conduct and Appellant’s response to that conduct to support hi s theory of self-defen se, and there is not a reasonable probability that the exclusion of this evidence affected the outcome of the trial. Based on the foregoing, Appellant’s Point III is denied.priso n pron o the S judg m
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