State v. Bax
| Decision Date | 28 April 2015 |
| Docket Number | WD 77339 |
| Citation | 459 S.W.3d 493 |
| Parties | State of Missouri, Respondent, v. Joseph A. Bax, Appellant. |
| Court | Missouri Court of Appeals |
Dora A. Fichter, Jefferson City, MO, for respondent.
Margaret M. Johnston, Columbia, MO, for appellant.
Before Division Two: Lisa White Hardwick, Presiding Judge, Victor C. Howard, Judge and Cynthia L. Martin, Judge
Joseph Bax (“Bax”) appeals from his conviction of the Class C felony of domestic assault in the second degree. Bax argues that there was insufficient evidence to support the conclusion that he caused physical injury to his victim, and that the trial court committed plain error in submitting a verdict director that included a paragraph defining “attempt” when that term was not used in the instruction. Because the jury's verdict of guilt is supported by sufficient evidence, and because the error in the verdict director did not result in a manifest injustice or miscarriage of justice, we affirm.
Bax and A.M. were in a romantic relationship and lived together. A.M. obtained an order of protection against Bax on August 8, 2013. Notwithstanding the order of protection, A.M. gave Bax permission to come to her apartment on August 13, 2013. Bax and A.M. began arguing and a physical altercation ensued. At one point, Bax pinned A.M. on the bed and began choking A.M.
A.M. eventually escaped and was able to flag down a police car. Officer Paris Campbell (“Officer Campbell”) was in the police car and spoke to A.M. A.M. told Officer Campbell that Bax had assaulted her. Officer Campbell observed red marks on A.M.'s neck consistent with choking.
Officer Jason Ambler (“Officer Ambler”) responded to a radio dispatch regarding Bax's whereabouts. Officer Ambler located Bax at a McDonald's Restaurant and detained him. Officer Campbell arrived and advised Bax of his Miranda2 rights. Bax agreed to speak with Officer Ambler. He told Officer Ambler that he had choked A.M., that she was pleading for help and for him to stop, and that he refused to do so. Bax also told Officer Ambler that although he did stop choking A.M. at some point, he could not explain why he stopped.
Bax was charged by Information with the class C felony of domestic assault in the second degree pursuant to section 565.0733 and with the class A misdemeanor of violation of an order of protection pursuant to sections 455.010, 455.050, and 455.085. Following jury trial, Bax was convicted of both counts. He was sentenced by the trial court to seven years in the Missouri Department of Corrections for domestic assault, and one year in the Cole County jail for violating the order of protection, with the sentences to run concurrently.
Bax filed this appeal.4
Bax raises two points on appeal. First, he claims there was insufficient evidence to permit the jury to conclude beyond a reasonable doubt that he caused A.M. physical injury by choking her, an essential element of the crime of domestic assault in the second degree. Second, he contends that the trial court committed plain error by tendering a verdict director for domestic assault in the second degree that included a definition of “attempt” when the term “attempt” was not used in the instruction.
Bax claims the jury could not have found beyond a reasonable doubt that he caused A.M. physical injury by choking her, an essential element of the crime of domestic assault in the second degree. We disagree.
On direct appeal from a criminal conviction, appellate review of the sufficiency of the evidence is limited to determining whether the State has introduced sufficient evidence from which a reasonable juror could have found each element of the crime beyond a reasonable doubt. State v. Nash, 339 S.W.3d 500, 508–09 (Mo. banc 2011). We do not reweigh the evidence, but instead consider the evidence in the light most favorable to the verdict, affording the State the benefit of all reasonable inferences. Id. at 509.
Bax was charged with domestic assault in the second degree pursuant to section 565.073.1(1). That statute provides, in pertinent part:
The State charged Bax with violating section 565.073.1(1) because he “knowingly caused physical injury to A.M. by choking her.”5
“ ‘Physical injury’ means physical pain, illness, or any impairment of physical condition.” Section 556.061(20). Bax contends on appeal that there was insufficient evidence that his act of choking A.M. caused physical injury. Bax's argument is belied by the record.
A.M. testified during direct examination at Bax's trial as follows:
On cross-examination, A.M. testified as follows:
In addition to A.M.'s testimony, Officer Campbell testified that she observed “several red marks on [A.M.'s] neck which she previously explained she was choked so it was kind of indicative to that.” [Tr. 136] Officer Campbell also identified photographs marked as Exhibits No. 1D and 1E as depicting “the injuries [she] saw specifically around [A.M.'s] neck.” [Tr. 136–37] Officer Campbell testified that based on her training and experience she had seen injuries like those observed on A.M. before and that they reflected “fresh” bruising. [Tr. 137]
The aforesaid testimony constitutes sufficient evidence from which the jury could have concluded beyond a reasonable doubt that Bax caused physical injury to A.M. by choking her. Bax's first point on appeal is denied.
Bax argues that the trial court committed plain error in submitting Instruction No. 8 to the jury, the verdict director for domestic assault in the second degree, because the instruction, which was modeled after MAI–CR 3d 319.74, included an optional paragraph defining “attempt” when that term was not used in the instruction. Bax points out that he was not charged with attempting to cause physical injury to A.M. but instead with knowingly causing physical injury to A.M. Bax argues that this instructional error relieved the State of its burden to prove an essential element of the charged crime—that he actually caused physical injury to A.M. We disagree.
Rule 28.02 governs the use of instructions and verdict forms in a criminal trial. Rule 28.02(c) requires the trial court to give the appropriate approved instructions or verdict form to the exclusion of any other instruction or verdict form. Failure to follow the MAI–CR form or applicable Notes on Use “shall constitute error, the error's prejudicial effect to be judicially determined.” Rule 28.02(f). However, Rule 28.03 requires counsel to “make specific objections to instructions or verdict forms considered erroneous,” and specifies that “[n]o party may assign as error the giving or failure to give instructions or verdict forms unless the party objects thereto before the jury retires to consider its verdict....”
Bax acknowledges that he did not object to Instruction No. 8 at trial. Though Rule 28.03 requires instructional error to be raised at trial as a condition of claiming error on appeal, our Supreme Court has determined that plain error review remains available for unpreserved instructional error pursuant to Rule 30.20. See, e.g., State v. Hunt, 451 S.W.3d 251, 260 (Mo. banc 2014) ; State v. Bolden, 371 S.W.3d 802, 806 (Mo. banc 2012).
Rule 30.20 provides that, whether the alleged errors are briefed or not, plain errors affecting substantial rights may be considered in the discretion of the court when the error has resulted in manifest injustice or miscarriage of justice. In applying plain error review, this Court frequently uses a two-step inquiry. First, the Court must determine whether the claimed error is, in fact, “plain error[ ] affecting substantial rights.” Rule 30.20. Substantial rights are involved if, facially, there are significant grounds for believing that the error is of the type from which manifest injustice or miscarriage of justice could result if left uncorrected. Id. An error is plain if it is “evident, obvious, and clear.” State v. Baumruk, 280 S.W.3d 600, 607 (Mo. banc 2009). In the realm of instructional error, plain error exists when it is clear that the trial court has so misdirected or failed to instruct the jury that manifest injustice or miscarriage of justice has resulted. State v. Ousley, 419 S.W.3d 65, 75...
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...Rule 28.02 directs the trial court's use of instructions and verdict forms in criminal trials. See also State v. Bax , 459 S.W.3d 493, 496 (Mo. App. W.D. 2015). "Rule 28.02(c) requires the trial court to give the appropriate approved instructions or verdict form to the exclusion of any othe......
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...evidence in the light most favorable to the verdict, affording the State the benefit of all reasonable inferences." State v. Bax , 459 S.W.3d 493, 495 (Mo. App. W.D. 2015). "[W]e disregard any evidence or inferences that contradict the verdict." Reese , 436 S.W.3d at 741.Beck’s argument on ......
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...court's judgment is affirmed.All concur1 We view the facts in the light most favorable to the jury's verdict. State v. Bax , 459 S.W.3d 493, 494 n.1 (Mo. App. W.D. 2015).2 Deputy Vessar initially had contact with A.L. in July 2014, presumably in connection with the allegations that gave ris......
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...as updated by Cumulative Supplement 2013.2 "We view the facts in the light most favorable to the jury's verdict." State v. Bax, 459 S.W.3d 493, 494 n.1 (Mo.App.W.D.2015).3 Pursuant to section 566.226, we have used initials to identify the victim so as to protect the victim's identity.4 Unde......