State v. Welch
| Decision Date | 11 February 2020 |
| Docket Number | No. ED 106820,ED 106820 |
| Citation | 600 S.W.3d 796 |
| Parties | STATE of Missouri, Respondent, v. Albert WELCH, Appellant. |
| Court | Missouri Court of Appeals |
For Appellant, James Egan, 1000 West Nifong, Building 7, Suite 100, Columbia, Missouri 65203.
For Respondent, Eric S. Schmitt, Garrick Aplin, P.O. Box 899, Jefferson City, MO 65102.
Albert Welch ("Appellant") appeals from the trial court's judgment convicting him of: assault in the first degree, in violation of Section 565.050, RSMo 1984 (Count I); armed criminal action, in violation of Section 571.015, RSMo 1979 (Count II); unlawful use of a weapon, in violation of Section 571.030, RSMo Cum. Supp. 2014 (Count III); two counts of endangering the welfare of a child in the first degree, in violation of Section 568.045, RSMo Cum. Supp. 2009 (Counts V and VI); domestic assault in the third degree, in violation of Section 565.074, RSMo Cum. Supp. 2012 (Count VII); and five counts of endangering the welfare of a child in the second degree, in violation of Section 568.050, RSMo Cum. Supp. 2005 (Counts X-XIV). Appellant was sentenced to 12 years in the Department of Corrections ("DOC") on Count I, four years in the DOC on Count II, four years in the DOC on Count III, five years in the DOC on Counts V and VI, six months in the St. Charles County Jail on Counts VII and X through XIV. All counts were to run concurrently with each other except for Count II, which runs consecutively to Count I. We reverse and remand for a new trial on Counts I and II.
Appellant lived in a mobile home with a woman ("Girlfriend"), whom he had not officially married but had lived with for 12 or 13 years and referred to at times as his wife. They also lived with eight children, who ranged from age six to 20, and two of the children referred to Appellant as their stepfather.
On the night in question, Appellant returned home from work with a friend, Lawrence Cunningham, also known as "Red" (referred to hereafter as "Red"). They drank whiskey and Appellant became drunk. Girlfriend also drank with them. Appellant told the children to go to their bedrooms, which they did. Appellant then asked Red and Girlfriend to have sex in front of him, but they told Appellant they did not want to do that. Appellant had asked Red and Girlfriend more than ten times in the past to have sex in front of him, but they never had. Appellant also had told Red that he "had a friend in Florida that they did it with and there wasn't nothing wrong with it." Appellant was pressing the issue more than usual and became angry when they refused. Red and Girlfriend ultimately had sex in the living room while Appellant watched. Red then went to the bathroom to take a shower and Appellant told Girlfriend to get into the shower with Red. She refused and Appellant grabbed his revolver from the top of the refrigerator and told Girlfriend that he would shoot her if she didn't get into the shower with Red. Girlfriend complied, although she and Red did not engage in sexual activity.
Less than five minutes later, Girlfriend left the shower, grabbed a towel and headed for the laundry room for some clothes. Appellant was sitting on a recliner in the living room, still holding the gun. Appellant began screaming at Girlfriend, calling her names, and asking her why she got in the shower with Red. Girlfriend testified that Appellant did not remember having told her to get in the shower with Red because he was intoxicated. Appellant followed Girlfriend to the laundry room, while continuing to yell at her and wave the gun around. He pointed the gun at her chest and yelled that he was going to kill her. Girlfriend screamed at him to please stop and not to kill her.
One of the children, M.R., heard his mother and ran into the living room and saw Appellant pointing the gun, so M.R. yelled at Appellant to stop. Appellant walked toward M.R. and into the living room, then fired a shot into the ceiling of the living room. Appellant also pointed the gun at M.R.’s chest while two other children, A.R. and J.R., were standing beside M.R. M.R. and J.R. ran back down the hallway toward their rooms, and A.R. quickly ran out of the front door to a neighbor's house where he asked them to call 911. J.R. sat on his bed, shaking with fear. Red heard the screaming and peeked his head out of the bathroom, after which Appellant walked down the hallway and into the bathroom.
Appellant told Red he was going to kill him and fired a shot into the shower wall as Red pushed the gun away from his head. Appellant and Red scuffled in the bathroom as Red tried to move Appellant's hand with the gun away from his head and avoid getting shot. Red asked Appellant what he was doing and told him that he was his best friend and he loved him. Appellant fired two more shots that went into J.R. and A.R.’s room, which was next to the bathroom. Appellant continued to pull the trigger when there were no more live rounds to fire, just making a clicking noise. J.R. heard Appellant and Red banging against the walls as they screamed at each other, as well as the three gunshots. Girlfriend also heard three gunshots, glass breaking, and Red telling Appellant to stop. Girlfriend hid in the laundry room. Red then ran out of the trailer.
When Appellant walked past J.R. and A.R.’s bedroom, he asked where A.R. was and yelled at J.R. to go get him. Appellant asked Girlfriend to hide the gun before leaving the trailer shortly thereafter. The revolver, containing six spent shell casings, was later recovered from the closet of the children's bedroom.
After Appellant left, Girlfriend checked on the five youngest children and found that they were all crying. They had heard the loud gunshots and Appellant yelling. Three children testified that hearing the gunshots made them scared. Girlfriend then went to J.R. and A.R.’s bedroom and found that A.R. was not there. The police arrived within ten minutes after Appellant had left.
The mirror in the bathroom was broken, and three bullet holes were discovered there: one in the shower, one above the mirror, and one in the cabinet above the toilet. Two of the bullets went through the bathroom wall and into J.R. and A.R.’s bedroom. One of those bullets entered the bedroom within inches of the television and exited above the top bunk of the nearby bunk bed, which was A.R.’s bed. That bullet then entered the living room through a picture on the wall, before exiting through the ceiling.
Following Appellant's arrest, he told his sister to tell Girlfriend that he did not want her to go to court, talk to the prosecutors, or reveal anything that had happened. He was charged with the class B felony of assault in the first degree for attempting to kill or cause serious physical injury to Red by shooting at him (Count I); the unclassified felony of armed criminal action for committing the assault in Count I with a deadly weapon (Count II); the class D felony of unlawful use of a weapon (Count III); the class B felony of burglary in the first degree (Count IV); the class C felony of endangering the welfare of a child in the first degree (Counts V-VI and Counts X-XIV), for knowingly acting in a manner that created a substantial risk to the life, body, or health of J.R., A.R., S.W., M.W., A.W., T.W. and W.W., children less than seventeen years of age, by shooting a firearm in the home in which the children were located; the class A misdemeanor of domestic assault in the third degree (Count VII), for purposely placing M.R. in apprehension of immediate physical injury by screaming at him and shooting a firearm; the class B felony of assault in the first degree (Count VIII), for attempting to kill or cause serious physical injury to M.R. by pointing a loaded firearm at him and walking toward him; the unclassified felony of armed criminal action (Count IX), for committing the assault in Count VIII with a deadly weapon; and the class C felony of tampering with a witness (Count XV). Appellant did not testify or present any evidence on his behalf.
The jury found Appellant guilty on Counts I, II, III, V, VI, VII, X, XI, XII, XIII, and XIV; the jury found him not guilty on Counts VIII (assault in the first degree), IX (armed criminal action), and XV (tampering with the witness). The State dismissed Count IV (burglary in the first degree) before the start of trial. Appellant was sentenced to twelve years in the Department of Corrections on Count I, four years on Count II, four years on Count III, five years on Counts V and VI, six months in the St. Charles County Jail on Counts VII and X through XIV. All sentences were to run concurrently with each other except on Count II, which runs consecutively to Count I. This appeal follows.
Appellant raises five points on appeal. First he alleges the trial court plainly erred in submitting Instruction No. 9 to the jury, because the verdict director failed to specify a particular incident of assault in the first degree and thereby violated Appellant's rights to due process, a fair trial, and a unanimous verdict, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10, 18(a), and 22(a) of the Missouri Constitution. Appellant alleges the State presented evidence of multiple, distinct acts of assault in the first degree, yet the verdict director did not specify any one of these incidents, thereby making it unclear as to which incident Appellant was found guilty and allowing the possibility that the jurors failed to find the same incident of assault in the first degree unanimously.
Appellant's second point alleges the trial court erred in refusing to instruct the jury on second-degree assault based on sudden passion as to Count I, because that offense is a lesser-included offense of first-degree assault, and...
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