State v. Greer, ED 95206.

• Decision Date: 20 September 2011
• Docket Number: No. ED 95206.,ED 95206.
• Citation: 348 S.W.3d 149
• Parties: STATE of Missouri, Respondent,v.Tracy Edgar GREER, Appellant.
• Court: Missouri Court of Appeals

348 S.W.3d 149

STATE of Missouri, Respondent,

v.Tracy Edgar GREER, Appellant.

No. ED 95206.

Missouri Court of Appeals, Eastern District, Division Four.

Sept. 20, 2011.

Timothy Forneris, St. Louis, MO, for appellant.Chris Koster, Atty. Gen., Daniel N. McPherson, Asst. Atty. Gen., Jefferson City, MO, for respondent.LAWRENCE E. MOONEY, Judge.

The defendant, Tracy Greer, appeals the judgment entered by the Circuit Court of the City of St. Louis following his conviction by a jury of three counts of assault in the first degree, in violation of section 565.050 RSMo. (2000); ¹ three counts of armed criminal action, in violation of section 571.015; six counts of endangering a corrections employee, in violation of section 565.085 RSMo. (Supp.2006); and one count of possession of a weapon in a correctional facility, in violation of section 217.360 RSMo. (Supp.2006). The trial court sentenced the defendant to a total of 25 years' imprisonment for these 13 crimes involving six victims.

Because we conclude that the trial court sentenced the defendant to a term of imprisonment exceeding that allowed by law for each of the six counts of endangering a corrections employee, we reverse the trial court's judgment with respect to the defendant's sentences for those counts. We remand the cause with instructions for the trial court to resentence the defendant in accordance with our holding. In all other respects, we affirm the trial court's judgment.

On June 10, 2007, Lieutenant Phillip Sapp was a supervisor on duty at the St. Louis City Justice Center when he received a report of a disturbance in the area of the jail housing the defendant. The lieutenant went to the cell occupied by the defendant and another prisoner, Tyler Johnson. There, the lieutenant smelled urine and feces, and saw a watery substance on the floor outside the cell. The lieutenant also observed that the glass had been knocked out of the cell door, and the light in the cell knocked out. The defendant and Johnson had used a mattress to barricade the door. They had fashioned crude protective gear by wrapping laundry and laundry bags around their heads. The defendant and Johnson yelled obscenities at the lieutenant, and the defendant yelled, “Kill me or I'm going to kill you.”

The lieutenant reported the disturbance to Captain Tonya Harry. The captain came to the area, and observed that both the defendant and Johnson were brandishing weapons. The captain instructed the defendant and Johnson to put down their weapons, move to the rear of the cell, and get down on their knees. The men refused. The defendant yelled obscenities at the captain, and told her: “I don't have anything to live for. You all going to have to come in here. You all going to have to kill us before we kill you.”

The captain assembled a cell extraction response team consisting of four corrections officers wearing basic riot gear and armed with a shield and batons. Before the extraction team began operations, the captain again ordered the defendant and Johnson to drop their weapons, move to the rear of the cell, and drop to their knees. The men again refused. The extraction team entered the cell where the floor inside was covered with a mixture of lotion and feces. The defendant and Johnson swung homemade shanks at the officers and attempted to stab them. Two officers struggled with the defendant, who twice struck one of the officers with a metal-tipped shank, hitting him on the lip and the back of the head when the officer's helmet fell off. Johnson swung his shank at the two other officers who approached him, and was swinging, kicking, and trying to stab the officers. The four officers subdued the two men, and removed them from the cell. Officers then searched the cell and recovered several homemade shanks.

The State charged the defendant with three counts of first-degree assault, three counts of armed criminal action, six counts of endangering a corrections employee, and one count of possession of a weapon in a correctional facility. The defendant presented no evidence, but argued that he neither swung a shank at anyone nor attempted to expose anyone to urine or feces. The defendant submitted instructions for second- and third-degree assault and armed criminal action. The trial court refused the defendant's tendered instructions. After deliberating for 21 minutes, the jury found the defendant guilty of all 13 counts as charged. The trial court sentenced the defendant as a persistent offender to sentences of 25 years of imprisonment on each of the charges for first-degree assault, armed criminal action, and possession of a weapon in a correctional facility, and to 15 years on each of the six counts of endangering a corrections employee, all sentences to be served concurrently.

The defendant appeals. In four points, he challenges his sentences on the six counts of endangering a corrections officer, the trial court's refusal to submit instructions for lesser-included offenses on the first-degree assault counts, and the sufficiency of the evidence.

In his first point, the defendant claims the trial court plainly erred in sentencing him as a persistent felony offender to a term of 15 years on each of six counts of endangering a corrections employee. He maintains that 15 years exceeds the maximum term of imprisonment allowed for this class-D felony, which for a persistent offender such as the defendant, carries the range of punishment for a class-C felony. The State concedes the trial court erred in this respect, and both parties request remand for resentencing.

The defendant admits this claim is not preserved for appeal and requests plain-error review. Rule 30.20. Plain error is evident, obvious, and clear. State v. Anderson, 294 S.W.3d 96, 98 (Mo.App. E.D.2009). To obtain relief under the plain-error rule, a defendant must demonstrate that the error so substantially affected his rights that a manifest injustice or miscarriage of justice would inevitably result if the error were left uncorrected. Id. An unauthorized sentence affects substantial rights and results in manifest injustice. Id. Therefore, it constitutes plain error for the trial court to impose a sentence in excess of that authorized by law. Id.

The jury found the defendant guilty of six counts of endangering a corrections employee, and the trial court sentenced the defendant to 15 years of imprisonment for each count. The offense of endangering a corrections employee is a class-D felony if, as here, the defendant attempts to cause, or knowingly causes, a corrections employee to come into contact with blood, seminal fluid, urine, feces, or saliva. Section 565.085 RSMo. (Supp.2006). The defendant conceded that he was a persistent offender, pursuant to section 558.016.3 RSMo. (Supp.2006). As a persistent offender, the defendant became subject to the range of punishment for a class-C felony. Section 558.016.7(4) RSMo. (Supp.2006). A class-C felony is punishable by a term of years not to exceed seven years. Section 558.011.1(3) RSMo. (Supp.2006). As a result, the trial court plainly erred when it imposed concurrent sentences of 15 years of imprisonment for each of six counts of endangering a corrections employee. We grant the defendant's first point.

In his second point, the defendant claims the trial court erred in refusing to instruct the jury on the lesser-included offenses of second- and third-degree assault. He contends that the jury could have found that he “did not attempt to kill or cause serious physical injury” to the three officers, but only that he “knowingly caused physical injury,” or that he “attempted to cause physical injury.” The defendant argues that the evidence created questions as to whether he attempted to kill or cause serious physical injury to three of the corrections officers, or whether the injuries suffered by the three officers constituted “serious physical injury.” The defendant cites no actual evidence that would support this conclusion. Rather, he would require the jury to dissect the consistent testimony of the State's four witnesses and simply choose to disbelieve certain uncontroverted parts of it.

Second– and third-degree assault are lesser-included offenses of first-degree assault because they are specifically denominated by statute as lesser degrees of the offense charged. Section 556.046.1(2) RSMo. (Supp.2006). A trial court has no obligation to instruct the jury on a lesser-included offense unless a basis exists for acquitting the defendant of the greater offense charged and convicting him of the lesser-included offense. Section 556.046.2 RSMo. (Supp.2006); State v. Pond, 131 S.W.3d 792, 793 (Mo. banc 2004); State v. Wren, 317 S.W.3d 111, 123 (Mo.App. E.D.2010).

The trial court must instruct on each offense if the evidence supports differing conclusions. Pond, 131 S.W.3d at 794 (emphasis added). However, “[a] lesser[-]included[-]offense instruction is not required where there is strong and substantial proof of the offense charged, and the evidence does not suggest a questionable essential element of the more serious offense charged.” Becker v. State, 260 S.W.3d 905, 910 (Mo.App. E.D.2008) (quoting State v. Barnard, 972 S.W.2d 462, 466 (Mo.App. W.D.1998)). A basis for acquittal of the greater offense requires “some evidence that an essential element of the greater offense is lacking and the element that is lacking must be the basis for acquittal of the greater offense and the conviction of the lesser.” Pond, 131 S.W.3d at 794 (quoting Barnard, 972 S.W.2d at 466). Furthermore, our Supreme Court applies the reasonable-juror standard, which requires an instruction for a lesser-included offense only “if a reasonable juror could draw inferences from the evidence presented that an essential element of the greater offense has not been established.” State v. Lowe, 318 S.W.3d 812, 821 (Mo.App. W.D.2010) (quoting State v. Williams, 313 S.W.3d 656, 660 (Mo. banc 2010)).

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