State v. Laususe
| Decision Date | 28 August 1979 |
| Docket Number | No. 40237,40237 |
| Citation | 588 S.W.2d 719 |
| Parties | STATE of Missouri, Respondent, v. Robert LAUSUSE, Appellant. |
| Court | Missouri Court of Appeals |
Richard A. Fredman, Fredman, Watkins, Fredman & Kopf, Robert C. Babione, Public Defender, Nick A. Zotos, Asst. Public Defender, St. Louis, for appellant.
John Ashcroft, Atty. Gen., Paul Robert Otto, Kathryn Marie Krause, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Michael L. Sullivan, Asst. Circuit Atty., St. Louis, for respondent.
Defendant appeals from his conviction by a jury of assault with intent to maim with malice. He was sentenced by the court under the Second Offender Act to a term of twenty years in the Department of Corrections.
Defendant and the victim of the assault, Thelma Johnson, had previously dated and were spending the evening of June 4, 1977 with friends. The victim testified that at approximately 1:00 a. m., following time at several bars, she and defendant began walking toward her home when defendant asked that they go together to a motel. She refused and defendant then grabbed her by the arm. They continued walking; Ms. Johnson cooperated. When a car drove by, she ran into the street and began screaming. Defendant then grabbed her around the neck and pulled her away. She broke away a second time after defendant had made her stop walking while he picked something up from the ground and a struggle ensued. Defendant fell on top of her as they were running and began hitting her head. Ms. Johnson testified that she was struck more than five times, that she just felt "a pounding on (her) head" and that, at the time, she had no idea with what she was being hit; just that she felt a pounding with a hard object. She testified that defendant later told her he had used a piece of glass. Following this eruption, victim and defendant continued to walk until Ms. Johnson became dizzy. While the two were sitting in Fairgrounds Park, the police arrived, having received information that a woman was being assaulted in the vicinity of the park at Fair Avenue and Natural Bridge. The police discovered Ms. Johnson crying, bleeding around the head and neck. Defendant was found with blood on his hands and pants. At first Ms. Johnson said nothing to the officers. Ms. Johnson related the entire episode when away from the defendant. The officers searched the area but discovered no blood-stained piece of glass.
Ms. Johnson was treated at St. Louis City Hospital # 2 at 2:03 a. m. Medical records show that she received sutures for lacerations of the scalp and neck. She testified that she had seven stitches in her head and one in her neck.
No one other than the victim testified about events subsequent to 1:00 a. m. when Ms. Johnson and the defendant parted company with their friends. The defense's evidence consisted of the testimony of two of those friends. They indicated that Ms. Johnson was drinking wine and smoking marijuana during the three hours that they were all together. Ms. Johnson testified only to having had several drinks.
Defendant first contends that the trial court erred by refusing to instruct the jury on the lesser included offenses of assault with intent to maim without malice and common assault. He claims:
Whether an instruction on a lesser offense in an assault case is to be given, the controlling factor with respect to the submission of a lesser offense is whether the facts in evidence are sufficient to arguably show a lack of an essential element of the higher degree of the offense. State v. Howell, 524 S.W. 11, 21(10) (Mo. banc 1975). And it is clear that an instruction on the lesser offense assault without malice is required only if there is evidence to support such a submission. State v. Lane, 537 S.W.2d 569, 570(1) (Mo.App.1976).
No evidence was adduced at trial to support a submission of an instruction on assault without malice. Assault with malice is distinguished from assault without malice by the force or means by which the offenses are committed and the Manner of the use of such force. State v. Webb, 518 S.W.2d 317 (Mo.App.1975); see also: Richardson, The Missouri Bar Committee Comments on Missouri Approved Criminal Instructions, Assault, p. 18.
Since the means used and the manner of using such force constitutes the distinction between "with malice" and "without malice", whether a weapon, force or means is deadly or likely to produce death or great bodily harm...
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...factual allegations, required by Rule 30.06(h). While such failure can preclude appellate review of the merits, State v. Laususe, 588 S.W.2d 719, 722 (Mo.App. 1979), this result will not obtain because appellant by leave has submitted a corrected brief reaching the minimum standards of Rule......
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