State v. Umfleet

• Decision Date: 23 March 2021
• Docket Number: No. ED 108591,ED 108591
• Parties: STATE of Missouri, Respondent, v. Brandon Shane UMFLEET, Appellant.
• Court: Missouri Court of Appeals

621 S.W.3d 15

STATE of Missouri, Respondent,

v.Brandon Shane UMFLEET, Appellant.

No. ED 108591

Missouri Court of Appeals, Eastern District, DIVISION THREE.

FILED: March 23, 2021

For Appellant: Ellen H. Flottman, 1000 W. Nifong Blvd., Bldg. 7, Ste. 100, Columbia, MO 65203.

For Respondent: Kristen S. Johnson, 221 W. High St., Jefferson City, MO 65101.

KURT S. ODENWALD, Judge

Introduction

Brandon Shane Umfleet ("Umfleet") appeals from his convictions following a jury trial on attempted burglary in the first degree and stalking in the first degree. Umfleet raises five points on appeal. Points One and Two challenge the sufficiency of the evidence for attempted first-degree burglary. Point One maintains the State failed to prove Umfleet attempted to unlawfully enter Victim's home while Point Two contends the State failed to prove Umfleet attempted to do so with the intent to commit an offense therein. Both Points Two and Three challenge the State's failure to denote the specific object offense of attempted first-degree burglary. Specifically, Point Two argues the evidence was insufficient to sustain the conviction on attempted first-degree burglary because it failed to establish what specific offense Umfleet intended to commit once he gained access to Victim's home. Correspondingly, Point Three maintains the trial court plainly erred in giving a jury instruction on attempted first-degree burglary that failed to denote the specific object offense as required by the Missouri Approved Instructions–Criminal ("MAI-CR").¹ Points Four and Five seek plain-error review of the trial court's failure to sua sponte intervene in the State's cross-examination of Umfleet for exceeding the permissible scope of impeachment on prior convictions and for improperly asking him to opine on the truthfulness of another witness.

Given the history of unwanted contact between Victim and Umfleet and evidence that Umfleet was trying to enter through Victim's window on the night of the incident, sufficient evidence supported finding Umfleet took a substantial step towards unlawfully entering Victim's home, and we deny Point One. However, the State did not specify the intended object offense of attempted first-degree burglary, and correspondingly failed to adduce sufficient evidence that Umfleet attempted to commit the burglary with the purpose of committing a specific offense once he gained entry. For this reason, we grant Point Two. Because our grant of Point Two is dispositive of Point Three, we need not address Point Three. Because Umfleet fails to demonstrate manifest injustice arose from the State's cross-examination on his prior convictions or Victim's truthfulness, we deny Points Four and Five. Accordingly, we affirm in part and reverse in part, reversing the conviction on attempted first-degree burglary and entering judgment on the lesser-included offense of trespass in the first degree. We remand the matter for the trial court to resentence the defendant consistent with this opinion.

Factual and Procedural History

The following facts are presented in the light most favorable to the trial verdict.

Umfleet and Victim were dating and living together from 2013 to April 2017, when they ended their relationship and Umfleet moved out of Victim's home. Umfleet's daughter continued to live with Victim and her son until May 2017 and Umfleet moved the last of his belongings out of Victim's residence in June 2017.

Umfleet and Victim attempted to remain friendly and maintain a civil relationship. Victim stopped all communication with Umfleet in May 2018 while Umfleet was in jail. Sometime thereafter, Umfleet began to initiate communication with Victim. Umfleet texted, called, and emailed her from both his accounts and other people's accounts. Victim attempted to block communications from him. When Umfleet posted photographs of Victim on social media, Victim asked him to remove them and to leave her alone. Umfleet also left letters on her car at her place of employment and would drive by her when she was walking to work.

The incident giving rise to the burglary charge occurred on August 5, 2018. Victim was home with her son, who had gone to sleep while she was watching television in bed. Victim heard a "peck and then it became a knock," on her window that "became a bang." Victim then heard knocking on the glass of the front door. Victim heard the knocking go back and forth between her bedroom window and front door several times.

Victim called her neighbor ("Neighbor"), because she believed as the mayor he would be able to get the police to respond faster than she could. Neighbor called the police. Meanwhile, Victim opened the outer front door, while keeping the glass storm door closed, and observed Umfleet standing between her bedroom window and front door. Neighbor's wife testified she saw Umfleet standing with his hands up on each side of Vicitm's bedroom window "like he was trying to find a way to get in." Victim shut the door, locked it, and waited for the police to arrive. Umfleet left the scene. The next day, Umfleet left a letter on Victim's car stating that if she had asked him to leave he would have done so.

Following the August 5 incident, Victim applied for and was granted an order of protection. The ex parte order was served on Umfleet on August 14. That same day, Umfleet came to Victim's place of employment with two other people and pointed out Victim to them. Umfleet continued to send text and social media messages to Victim that month, making up new social media profiles to circumvent Victim's blocking of his accounts. Victim also learned that Umfleet was sending messages to other people falsely claiming Victim was having an affair with a woman's husband. Victim also discovered Umfleet was creating fake social media profiles in her name and posting private pictures of her.

A hearing on the full order of protection was scheduled for August 27, 2018. The same day, Umfleet called Victim from a number listed in her phone under the name of a mutual friend of theirs, however, Victim recognized Umfleet's voice. Umfleet told her she did not need to go to court to get the order of protection, that she would be a fool, that it was ridiculous, and that it would be in her best interest not to go to court.

The State charged Umfleet with attempted burglary in the first degree and stalking in the first degree based upon the August 5 incident.² For the burglary charge, the Amended Information alleged that Umfleet "tried to open a window at [Victim's address] for the purpose of unlawfully entering that inhabitable structure and such conduct was a substantial step toward the commission of the offense of Burglary in the First Degree of [Victim's address.]"

The case proceeded to a jury trial. At trial, Umfleet testified in his own defense and denied calling or messaging Victim from spoofed numbers or fake social media accounts. He also denied leaving letters on Victim's car. Umfleet testified that he and Victim had mutually ended the relationship, that they stayed in touch, and that Victim continued to contact him after she obtained the restraining order. Umfleet denied knowing about the order of protection until September 2018. Umfleet denied going to her workplace on August 14. Umfleet denied the burglary incident, calling his father to testify that Umfleet had been home and did not leave on the night of the incident.

Umfleet also testified about his prior convictions. Umfleet initially testified that he had "some possessions," none of which were for stalking or domestic-violence offenses. On cross-examination, the State asked Umfleet whether Umfleet's prior convictions for fraudulently obtaining a controlled substance were "more than a possession issue, right? You lied to get drugs?" Umfleet repeatedly described his convictions as "possession issues" arising out of an addiction to pain pills, and he denied one of the convictions on his record. The State questioned:

You're here testifying and telling these people don't believe a word she says. Everything she says is garbage. All the text messages are fabrications. Don't believe anything she says, but this isn't relevant for them whether they should believe you or not—that on three occasions you pled guilty to a felony that involved fraud, deceit to get drugs, correct?

The State also asked Umfleet, "So if I understand you correctly, everything that she has testified to is a lie and everything you have testified to is the truth?" Umfleet responded, "I'm not saying that," and reiterated his own defense that he never sent certain text messages. Umfleet raised no objection to the State's questioning.

The trial court provided the jury with instructions. In Instruction No. 5, the trial court instructed the jury to find Umfleet guilty of attempted burglary in the first degree if it found that Umfleet: (1) tried to open a window at Victim's home for the purpose of unlawfully entering that inhabitable structure, (2) that such conduct was a substantial step toward the commission of the offense of burglary in the first degree of victim's home, and (3) that Umfleet engaged in such conduct for the purpose of committing such burglary in the first degree, then you will find Umfleet guilty. Instruction No. 5's definition of first-degree burglary included knowingly entering unlawfully into an inhabitable structure for the purpose of committing a crime therein, and while entering the inhabitable structure there was present another person who was not a participant in the crime. The jury instructions did not specify the intended object offense of the attempted burglary. Umfleet did not object to the instructions.

During jury deliberations, the jury sent a question to the trial court asking about the definition of first-degree burglary. The trial court referred them to Instruction No. 5. The jury then returned verdicts of guilty on both counts.

The trial court sentenced Umfleet to ten years in jail for attempted first-degree burglary and...