State v. Ondo

• Decision Date: 06 September 2007
• Docket Number: No. 27977.,27977.
• Citation: 232 S.W.3d 622
• Parties: STATE of Missouri, Plaintiff-Respondent, v. William S. ONDO, Defendant-Appellant.
• Court: Missouri Court of Appeals

232 S.W.3d 622

STATE of Missouri, Plaintiff-Respondent, v. William S. ONDO, Defendant-Appellant.

No. 27977.

Missouri Court of Appeals, Southern District, Division Two.

September 6, 2007.

Irene Karns, Columbia, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., and Joshua N. Corman, Assistant Attorney General, Jefferson City, MO, for respondent.

GARY W. LYNCH, Chief Judge.

William S. Ondo ("Defendant") was found guilty following a jury trial of committing the class C felony of second-degree domestic assault, in violation of section 565.073.¹ The court sentenced him to serve three years in the Department of Corrections. Defendant appeals, contending the trial court erred in failing to sua sponte declare a mistrial when the arresting officer testified about Defendant's belligerent and resistant behavior as he was confronted by police. Defendant also contends the trial court abused its discretion in refusing to instruct the jury on third-degree domestic assault instead of second-degree domestic assault, pursuant to the rule of lenity. See sections 565.074 and 565.073. Because we find that the arresting officer's testimony was admissible, and that the rule of lenity does not apply in this case, we affirm.

(1) Factual and Procedural Background

Defendant does not challenge the sufficiency of the evidence to support his conviction. Viewing the evidence in the light most favorable to the trial court's judgment, State v. Stanley, 124 S.W.3d 70, 72 (Mo.App.2004), the following facts were adduced at trial:

Defendant had been married to Cynthia Ondo for fifteen years. They lived together in a mobile home in Joplin with Cynthia's twenty-one-year-old son, Christopher. One night while Cynthia was sleeping, she was suddenly awakened by Defendant grabbing her around the throat and choking her, yelling that someone had eaten his last "swiss cake roll" and asking her if she wanted to die. Defendant yelled that he was "going to rip her fucking lips off" and was going to "kick [Christopher's] ass."

Defendant's yelling awoke Christopher. When he heard Defendant yelling that he wanted to "kick [his] ass," Christopher grabbed his jacket and cell phone, jumped out his bedroom window and went to the next-door neighbor's house.

Cynthia struggled to get away from Defendant, and when she was free she told him she would gladly go to town and get him some more swiss cake rolls. Defendant yelled that he wanted her and her "fucking cunt son to get out." Cynthia left and went to the next-door neighbor's house, arriving about ten minutes after Christopher. Christopher saw that Cynthia had marks around her neck and he called 9-1-1.

Seth Hembree, deputy sheriff at the Newton County Sheriff's Department, was dispatched to the scene following the 9-1-1 call. He first spoke with Cynthia at the next-door neighbor's home. She was shaking and crying, and told Officer Hembree that she had gotten into a fight with her husband, that "she'd been grabbed by the throat" and that "he was choking her". Officer Hembree went to the Ondos' house and knocked on the door. Defendant "asked who it was" and Officer Hembree responded "the sheriff's department." Defendant said he did not want to talk to him. Officer Hembree advised him that he needed to open the door and talk to him, but Defendant refused to open the door several times. Defendant said it was his house and Officer Hembree could "fuck off." At that point Officer Hembree requested his supervisor to respond, and as he was responding Defendant opened the door and told Officer Hembree he could come inside. After interviewing Defendant for about twenty minutes, Officer Hembree arrested him.

While he was being booked into the jail, Defendant stated that he and his wife "had gotten into an argument over the swiss cake roll, that she had slapped him across the face, at which time he grabbed her around the throat and threw her out of the house." Defendant was charged with committing the class C felony of second-degree domestic assault, in violation of section 565.073. The amended information, upon which Defendant was tried, stated that "on or about January 9, 2006, . . . the defendant knowingly attempted to cause physical injury to Cynthia Ondo by grabbing her by the throat, and Cynthia Ondo and the defendant were family or household members in that Cynthia Ondo was the spouse of the defendant."

At trial, Cynthia, Christopher and Officer Hembree testified on behalf of the State. Defendant did not testify. Following the jury instruction conference, defense counsel objected to the instruction on second-degree domestic assault and asked the court to instead submit an instruction on third-degree domestic assault in accordance with the rule of lenity. See sections 565.073 and 565.074. The court denied defense counsel's request. The jury found Defendant guilty of second-degree domestic assault. Section 565.073. The court sentenced Defendant to serve three years in the Department of Corrections. This appeal followed.

(2) Point I: The Trial Court Failed to Sua Sponte Delare a Mistrial

In Defendant's first point, he contends the trial court erred in failing to sua sponte declare a mistrial when Officer Hembree testified that Defendant cursed and refused to let him in when he knocked on the door. Defendant asserts "the testimony was inadmissible in that it constituted evidence of other bad acts that did not have a legitimate tendency to prove or disprove any fact in issue." Defendant concedes that this claim was not preserved for review because defense counsel did not object at the appropriate time or request a mistrial or other relief.² Therefore, our review, if any, is for plain error. Rule 30.20.³

Rule 30.20 provides that claims of error affecting substantial rights, even if not preserved for review, may be considered by this court "when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." The decision to grant plain error review lies within the reviewing court's discretion. State v. Tabor, 193 S.W.3d 873, 878 (Mo.App.2006). Plain error review involves a two-step analysis. State v. Golden, 221 S.W.3d 444, 447 (Mo.App.2007). First, we determine whether the claim of error facially establishes substantial grounds for believing that manifest injustice or miscarriage of justice has resulted. Id. "Plain errors are evident, obvious, and clear, and we determine whether such errors exist based on the facts and circumstances of each case." State v. Johnson, 182 S.W.3d 667, 670 (Mo. App.2005). Absent a finding of facial error, this court should decline its discretion to review the claim pursuant to Rule 30.20. Golden, 221 S.W.3d at 447. "If plain error is found, we proceed to the second step to consider whether the error actually resulted in manifest injustice or a miscarriage of justice." State v. Stallings, 158 S.W.3d 310, 315-16 (Mo.App.2005).

Defendant argues that evidence of his "belligerence and resistance when confronted by the police encouraged the jury to find him guilty of attempting to injure his wife because he acted guilty when the deputies arrived, and resulted in manifest injustice." He contends the following testimony by Officer Hembree was prejudicial and should have prompted the court to sua sponte declare a mistrial:

Q: What did you do when [Defendant] said he didn't want to talk to you?

A: I advised him that he needed to talk to me. Open the door—several times he told me he wasn't going to open the door. He told me it was his house and that I could, quote "fuck off." At that point I requested that Deputy Hall, which is our supervisor, respond. As he was responding, we knocked on the door again, at which time the door came open and [Defendant] told me I could come in.

Defendant asserts that evidence of his resistant behavior is irrelevant and inadmissible because it was not probative of his intent to assault his wife; instead it only showed "his desire to avoid the deputy" and revealed that he was "a generally disagreeable person." He argues that such evidence of "other bad acts committed by a defendant" is prejudicial because the jury is predisposed to use his bad character as the basis for inferring guilt.

Defendant's contention is based on the general rule that uncharged misconduct is inadmissible to show a defendant's propensity to commit the crime charged. State v. Taylor, 166 S.W.3d 599, 605 (Mo. App.2005). There are, however, exceptions to this rule. State v. Shoults, 147 S.W.3d 163, 166 (Mo.App.2004). Evidence of uncharged crimes or misconduct that are part of the circumstances surrounding the charged offense is admissible to present a complete and coherent picture of the events that transpired. Id.; Taylor, 166 S.W.3d at 606. Additionally, evidence of the circumstances surrounding a defendant's arrest, including attempts to resist or avoid arrest, is admissible and may be considered by the jury on the issue of the defendant's guilt. State v. Blewett, 853 S.W.2d 455, 461 (Mo.App.1993); State v. Robinson, 834 S.W.2d 246, 249 (Mo.App. 1992); State v. Wallace, 644 S.W.2d 382, 384 (Mo.App.1982); State v. Franklin, 591 S.W.2d 12, 15 (Mo.App.1979); State v. Armbruster, 541 S.W.2d 357, 362 n. 4 (Mo. App.1976); State v. Davis, 530 S.W.2d 709, 713 (Mo.App.1975); State v. Harris, 325 S.W.2d 352, 358 (Mo.App.1959).

Officer Hembree's testimony about his attempt to interview Defendant and Defendant's resistant behavior was a description of the circumstances surrounding Defendant's arrest and the events leading up to the second-degree domestic assault charge. Defendant's behavior shows, in Defendant's own words, "his desire to avoid the deputy." That evidence is relevant to the issue of avoiding arrest, which is an attending circumstance that may be considered by the jury. See Franklin, 591 S.W.2d at 15. Additionally, Officer Hembree's testimony helped present to the jury a complete and coherent picture of the events that transpired. Shoults, 147...