State v. Robinson

• Decision Date: 06 March 2001
• Citation: 44 S.W.3d 870
• Parties: (Mo. Banc 2001) State of Missouri, Respondent, v. David M. Robinson, Appellant WD57460 0
• Court: Missouri Supreme Court

44 S.W.3d 870 (Mo. Banc 2001)

State of Missouri, Respondent, v. David M. Robinson, Appellant

WD57460

Missouri Court of Appeals Western District

03/06/2001

Appeal From: Circuit Court of Jackson County, Hon. Thomas Henry Newton

Counsel for Appellant: John M. Schilmoeller

Counsel for Respondent: Stacy L. Anderson

Opinion Summary: David Robinson appeals his convictions following jury trial for second degree assault and armed criminal action, claiming the trial court plainly erred in failing to submit to the jury, sua sponte, an instruction on the lesser included offense of assault in the third degree because the evidence provided a basis for acquittal of second degree assault and conviction of third degree assault.

AFFIRMED.

Division One holds: No basis in the evidence existed to support a verdict acquitting Mr. Robinson of second degree assault and convicting him of assault in the third degree. The trial court did not plainly err in failing to submit to the jury, sua sponte, an instruction on the lesser included offense.

Robert G. Ulrich

David Robinson appeals his convictions following jury trial for one count of assault in the second degree, section 565.060, RSMo 1994, one count armed criminal action, section 571.015, RSMo 1994, and sentence to concurrent terms of three years of imprisonment and six years imprisonment, respectively. He claims that the trial court plainly erred in failing to submit to the jury, sua sponte, an instruction on the lesser included offense of assault in the third degree, because the evidence presented at trial provided a basis for an acquittal of second degree assault and for a conviction of third degree assault. The judgment of convictions is affirmed.

Facts

On September 28, 1997, Robert Fletcher was visiting the home of James Bowden, with his cousin, Clifford Gatson, and some friends, Jamal and Frank Lewis. Mr. Fletcher was sitting on his car outside Mr. Bowden's home listening to the radio when he saw Marlene Gatson, another cousin of his and former girlfriend of Jamal Lewis, and a female friend driving down the street in a blue Honda. Mr. Robinson, Ms. Gatson's boyfriend at the time, and another man were following close behind the blue Honda in a brown Malibu. Both cars stopped near Mr. Bowden's home. Mr. Robinson got out of his car holding a gun in his hand. After seeing the gun, Mr. Fletcher, Mr. Gatson, and the others ran inside Mr. Bowden's home to take cover. While they were in the home, Mr. Fletcher heard the two cars drive away, and he and his friends went back outside. Shortly thereafter, Mr. Fletcher and his friends went across the street to the home of Curtis Green. They were all gathered around the doorway of Mr. Green's home when Ms. Gatson returned in the blue Honda, in which Mr. Robinson had become a passenger. After stopping in front of the house, Ms. Gatson rolled down her window and asked where Jamal Lewis was and then began shouting toward the house. At this point, Mr. Robinson got out of the car, pulled out a gun, leaned over the hood of the car and pointed the gun toward the house.

After seeing the gun, Frank Lewis slammed the door. Several shots were fired. Mr. Fletcher and the others attempted to retreat towards the back of the house, but as Mr. Fletcher turned to run a bullet struck him in the back. The bullet that hit Mr. Fletcher penetrated his left shoulder. The wound resulted in a scar on Mr. Fletcher's shoulder, and the bullet still remains in his back.

Mr. Robinson was charged by information on March 6, 1998, with one count of assault in the second degree and one count of armed criminal action. The cause was tried before a jury on February 10, 1999, and the jury found Mr. Robinson guilty of second degree assault and armed criminal action as charged. Mr. Robinson was sentenced to a term of three years imprisonment on the count of second degree assault and a concurrent term of six years imprisonment on the count of armed criminal action. This appeal followed.

Point on Appeal

In his sole point on appeal, Mr. Robinson claims that the trial court plainly erred in failing to submit to the jury, sua sponte, an instruction on the lesser included offense of assault in the third degree. He contends that the evidence presented at trial provided a basis for an acquittal of second degree assault and for a conviction of third degree assault, thereby necessitating the submission of an instruction on the lesser included offense of assault in the third degree.

Mr. Robinson concedes that he did not preserve the issue raised herein for appellate review and asks for plain error review under Rule 30.20. Ordinarily, failure to preserve an issue at the trial court waives the issue, and it is not reviewable on appeal. Rule 29.11. The exception to this rule in a criminal case is articulated in Rule 30.20, which provides, in pertinent part, that "[w]hether briefed or not, plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." Rule 30.20. "The plain error rule should be used sparingly and does not justify a review of every alleged trial error that has not been properly...