BRADLEY DOUGLAS COOK, Appellant v. STATE OF MISSOURI, Respondent

BRADLEY DOUGLAS COOK, Appellant, v. STATE OF MISSOURI, Respondent.

No. SD38718

APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY

Honorable Gayle Lee Crane, Judge AFFIRMED Following his conviction of first-degree assault and armed criminal action, which stemmed from an altercation at a homeless shelter between himself and the victim, Bradley Douglas Cook ("Movant") timely filed pro se and amended motions for post- conviction relief. The motion court denied Movant's claims after an evidentiary hearing. Movant timely appeals that decision. We affirm. Legal Principles Applicable to All Points Our review of the denial of a motion for post-conviction relief is limited to

In Division

2 determining whether the motion court's findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k), Missouri Court Rules (2019). "Findings and conclusions are clearly erroneous only if a full review of the record definitely and firmly reveals that a mistake was made." Morrow v. State, 21 S.W.3d 819, 822 (Mo. banc 2000). "We view the record in the light most favorable to the motion court's judgment, accepting as true all evidence and inferences that support the judgment and disregarding evidence and inferences that are contrary to the judgment." Oliphant v. State, 525 S.W.3d 572, 577 (Mo.App. 2017) (internal quotation marks omitted). Here, all of Movant's points challenge the motion court's failure to grant post- conviction relief on claims alleging ineffective assistance of counsel. In order to prevail on a claim alleging ineffective assistance of counsel, a movant must overcome a strong presumption of competence and demonstrate, by a preponderance of the evidence, that (1) counsel did not exercise the customary skill and diligence that a reasonably competent attorney would have exercised under the same or similar circumstances, and (2) counsel's failure to exercise such skill and diligence prejudiced the movant in some way. Strickland v. Washington, 466 U.S. 668, 687, 689 (1984); Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987). To satisfy the Strickland performance prong, a movant must show "that counsel's representation fell below an objective standard of reasonableness." Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006) (internal quotation marks omitted). To satisfy the Strickland prejudice prong, a movant must "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. (internal quotation marks omitted). If a

3 movant fails to satisfy either prong, his ineffective assistance claim fails, and we need not consider the other prong. Moore v. State, 659 S.W.3d 635, 639 (Mo.App. 2023). Discussion Movant presents nine points of alleged motion court error in total. For ease of analysis, we address some points together and some points out of the order in which Movant presented them. We will address the motion court's findings of fact and conclusions of law only to the extent necessary to resolve Movant's points. Additionally, before addressing the merits of Movant's points, we note an argument that he raises in points 3 through 8. Each of these points assert distinct allegations of motion court error that, according to Movant, are all "related" to a self- defense claim he raised at trial. In addressing Strickland prejudice under each point, Movant cites Kelly v. State for the proposition that a motion court "must assess the cumulative prejudicial impact of all deficiencies." 618 S.W.3d 722, 744 (Mo.App. 2021). Based upon this authority, Movant argues that "[t]he motion court's failure to consider the cumulative prejudice of trial counsel's errors as they relate to self-defense, which was the only issue in [Movant]'s case, renders the motion court's findings clearly erroneous." In order for us to address this argument, Movant had to present it first to the motion court by filing a motion to amend the motion court's findings of fact and conclusions of law. See Rule 78.07(c), Missouri Court Rules (2024). The purpose of such a motion in the context of postconviction review is to "prevent[] delay by bringing errors to the attention of the motion court at a time when those errors can be easily corrected." Atchison v. State, 420 S.W.3d 559, 561 (Mo.App. 2013). If a movant fails to seek such

4 an amendment, "his argument that the motion court clearly erred in denying his claim without findings and conclusions is not preserved for appellate review." Id. at 562. A review of the record reveals that although Movant filed a motion requesting the motion court to amend its findings of fact and conclusions of law, his motion did not raise the "cumulative prejudice" argument that he now seeks to raise here on appeal. As such, the argument is not preserved. Ex gratia, as our discussion of points 3 through 8 demonstrates, infra, where Movant has "failed to prove prejudice from any of the claims of ineffective assistance of counsel raised in his amended motion, there can be no 'cumulative' error from which this Court may grant relief." Vannaman v. State, 719 S.W.3d 489, 503 n.10 (Mo.App. 2025). Points 5 and 6 Before addressing Movant's fifth and sixth points, we must set out excerpts from this Court's opinion disposing of Movant's direct appeal in State v. Cook, 613 S.W.3d 899, 901 (Mo.App. 2020) (in which we refer to Movant as "Appellant"). One of the points raised on appeal was that "the trial court abused its discretion in limiting Appellant's defense by precluding Appellant from presenting evidence that the alleged victim was under the influence of methamphetamine during the altercation." Movant's trial counsel had made an offer of proof as to the evidence in question, which included medical records, testimony from two doctors, and Movant's own testimony "as to his opinion that the victim was using methamphetamine at the time of the altercation." Id. The trial court refused all of the proffered evidence because the medical evidence failed to establish Movant's use of methamphetamine on the day of the altercation and

5 Movant's lay testimony would be insufficient to establish the victim's impairment. Id. We summarized Movant's lay testimony as follows: Appellant also made an offer of proof of his testimony. He testified that he had seen people on methamphetamine almost daily and had seen easily over 100 people under the influence of methamphetamine. Appellant testified that people on methamphetamine would be hostile, aggressive, agitated, and hyperactive, they would not be able to sit still. He further testified that while under the influence of methamphetamine, their pupils get huge. He further testified that in the week that he had seen the victim, the victim appeared argumentative, agitated, antsy and hyperactive. He claimed that on the night of the altercation, the victim was argumentative and hostile when the victim started to get physical with Appellant and the victim's pupils were dilated. He further testified that he had "heard rumors" that the victim used methamphetamine and it appeared more than likely that the victim was under the influence of methamphetamine because it had been the drug of choice around there for years.

Id. at 902. We then denied Movant's point, holding: We reject Appellant's claim because we cannot find that the error was so prejudicial that Appellant was denied a fair trial. There was evidence of the victim's aggressiveness toward Appellant from the testimony of Appellant and an eye witness of the altercation. The eye witness testified that: the victim yelled and shouted at Appellant several times and took an aggressive stance toward Appellant; the victim got in the way of Appellant doing his chores at the homeless shelter; and the victim "got in" Appellant's face. The eye witness testified that he would have felt threatened had he been in Appellant's position. Further, the eye witness testified that the victim, who was bigger than Appellant, initially knocked Appellant to the ground and continued to punch him after he was down before Appellant was able to regain the upper hand and began punching the victim. After the two wrestled on the ground, the eye witness heard the victim say, "You stabbed me?" and Appellant respond, "Yes, you're damn right I did."

Further, the jury heard evidence from Appellant that he was afraid, injured and acting in self-defense. The jury heard about previous assaults by the victim and that the victim appeared angry and agitated for some reason. When the victim interfered with Appellant's chores, Appellant pushed the victim back with a broom. Appellant was then hit in the head by the victim and the victim punched Appellant so hard in the chin it rocked Appellant and he fell forward onto the ground. The victim continued to punch

6 Appellant on the ground and, at some point during this altercation, Appellant suffered a dislocated shoulder. He testified that while the victim continued to throw punches at him, Appellant was afraid and stabbed him with the knife he had been using as a box cutter in his chores. The jury heard that after Appellant walked away from the fight he told a police officer that he defended himself, that he was in fear for his life, and needed medical attention. He led the officers to the knife he used.

The victim was not able to refute the details of the fight because he went "blank" after the initial verbal confrontation. Despite all of this testimony, the jury convicted Appellant of first-degree assault and armed criminal action. We fail to see how the admission of evidence as to why the victim was so aggressive would have changed the result. The introduction of evidence that the victim was using methamphetamine would not affect whether Appellant assaulted the victim with the knife. Ignoring the first prong of whether it was error to deny the evidence, we cannot find that there is a reasonable probability that the trial court's error affected the outcome of the trial. The jury simply did not believe that Appellant acted in self-defense when he used the knife against the victim.

Id. at 902-03. Turning our focus back to the instant case, two of Movant's ineffective-assistance- of-counsel claims concerned trial counsel's failure to admit evidence of alleged methamphetamine use by the victim. First, Movant claimed that trial counsel was ineffective for failing "to seek to admit the fact that [Movant] believed [the victim] was high on methamphetamine on the basis that it went to [Movant]'s subjective belief when he determined he needed to stab [the victim]." The motion court denied this claim on the legal basis that the issue of Movant's subjective belief that the victim was under the influence of methamphetamine had already been decided adversely to him on direct appeal. As relevant to the motion court's legal determination, it is well-established that "[i]ssues decided upon direct appeal cannot be relitigated on a theory of ineffective

7 assistance of counsel in a post-conviction proceeding." Leisure v. State, 828 S.W.2d 872, 874 (Mo. banc 1992). Here, on direct appeal in Cook, 613 S.W.3d at 903-04, this Court reviewed the issue of the trial court's exclusion of Movant's belief that the victim was under the influence of methamphetamine for an abuse of discretion and found that Movant was not prejudiced thereby. "Abuse of discretion (for preserved error) is a lower standard of review than both Strickland and plain error review." McClure v. State, 543 S.W.3d 54, 57 (Mo.App. 2018) (bold added). "Thus, finding no prejudice under abuse of discretion review a fortiori precludes finding prejudice under a higher standard." Id. In his fifth point, Movant contends that the motion court's legal determination was erroneous, in that the issue decided on direct appeal was based on a different theory of admissibility than the theory he asserts trial counsel was ineffective for failing to raise. Movant emphasizes that this Court, on direct appeal, held that "[w]e fail to see how the admission of evidence as to why the victim was so aggressive would have changed the result." Cook, 613 S.W.3d at 903. Movant then asserts that under the "correct" theory of admissibility, "evidence of [Movant]'s belief that [the victim] was high on methamphetamine does not go to 'why the victim was so aggressive'; instead, it goes to why [Movant] felt that he needed to use his pocketknife to fend off the attack and the reasonableness of that action." Movant's argument is unavailing because it misunderstands the issue decided on direct appeal. Irrespective of whether trial counsel raised only the first aforementioned admissibility theory when he should have raised the latter admissibility theory, the crux of the matter on direct appeal was whether the absence of Movant's testimony prejudiced

8 his self-defense claim. Both theories relate to this issue, and Movant presented the same or similar evidence in support of both (Movant admits he "reiterated" his offer-of-proof testimony when he testified before the motion court). This Court, on direct appeal, reviewed the issue of whether the exclusion of said evidence was prejudicial to Movant's self-defense claim and held that it was not. "A matter decided on an earlier appeal cannot be subjected to another review by a subsequent post-conviction relief proceeding, even though the litigant has a different theory to suggest." Medley v. State, 639 S.W.2d 401, 404 (Mo.App. 1982) (emphasis added). The motion court did not clearly err. Point 5 is denied. Movant's other claim concerning methamphetamine was that trial counsel was ineffective for failing "to investigate and present evidence from a qualified forensic toxicologist on [the victim]'s methamphetamine usage under the theory that such evidence was relevant to proving the reasonableness of [Movant]'s belief that [the victim] was high on methamphetamine when the incident occurred, and admission of [the victim]'s positive methamphetamine test." The motion court denied this claim, and Movant challenges that denial in his sixth point. In light of our no-prejudice determination in Cook, 613 S.W.3d at 903, and our resolution of point 5, we need not address the merits of motion court's rationale because we find no error in the result. See Watson v. State, 545 S.W.3d 909, 914-15 (Mo.App. 2018) (stating that an appellate court is "permitted to affirm a post-conviction court on any legal ground supported by the record if the motion court reached the right result"). Point 6 is denied.

9 Point 3 Instruction No. 7, a self-defense instruction requested by Movant's trial counsel and submitted to the jury without objection, is relevant to Movant's third point. Said instruction provided that "an initial aggressor is not justified in using physical force to defend himself from the counter attack that he provoked." Said instruction also provided that [i]n order for a person lawfully to use physical force in self-defense, he must reasonably believe such force is necessary to defend himself from what he reasonably believes to be the use or imminent use of unlawful force and he can only use physical force to the extent that he reasonably believes is necessary to defend himself.

Although Instruction No. 7 contained this and other language relating to self- defense, Movant claimed that trial counsel was ineffective for failing to also include language corresponding to section 563.031.3, RSMo (2016), which would have instructed the jury that Movant had no duty to retreat before using force to defend himself. In denying this claim, the motion court ruled that Movant suffered "no prejudice" due to the omission. In his third point on appeal, Movant contends that this ruling was clearly erroneous. We disagree. In denying Movant's claim, the motion court cited State v. Sanders, 652 S.W.3d 258 (Mo.App. 2022). Like the claim at issue here, the movant in Sanders argued that his trial counsel was ineffective by failing to request a self-defense instruction with a no- duty-to-retreat paragraph. Id. at 262. The court found no prejudice because that instruction "would not have significantly altered the evidentiary picture before the jury." Id. at 274. The court observed that had the witness been believed, that instruction "would

10 not be expected to factor in" its determination, and had the movant been believed, there was no reason to believe that a jury would think that [the movant] was required to retreat before defending himself from a person holding a knife to his neck who had just cut him and robbed him, in that the jury was instructed that force may be used to the extent the actor reasonably believes it necessary to defend himself from what he reasonably believes to be the use of unlawful force by another person.

Id. Here, in attempting to argue that he was prejudiced by the absence of a no-duty-to- retreat language in Instruction No. 7, Movant argues as follows: This case came down to two issues: 1) whether [Movant] was the initial aggressor, and 2) whether [Movant]'s force was reasonable. The lack of a no-duty-to-retreat paragraph impacts both of those issues. Testimony came in at trial that [the victim] was being aggressive toward [Movant], and [Movant] then pushed him with a broom. Thus, the jury was tasked with determining whether [the victim] was the initial aggressor when he was acting aggressive toward [Movant] or [Movant] was the initial aggressor when he pushed [the victim] with the broom. In the absence of the no-duty- to-retreat paragraph, the jury was free to conclude that even if [the victim] was the initial aggressor, [Movant] should have just walked away. Evidence established that [Movant] was on the ground being punched when he stabbed [the victim]. In the absence of the no-duty-to-retreat paragraph, the jury was free to conclude that [Movant] should have tried to get away before he had the right to stab [the victim]. The two central issues were directly impacted by the lack of a no-duty-to-retreat paragraph, rendering the motion court's finding of no prejudice clearly erroneous.

(Record citations omitted.) At trial, however, Movant specifically testified about whether he could have retreated during his encounter with the victim. Movant testified that the victim approached "close enough that he was chest bumping me." As to whether Movant could back away from this encounter, Movant explained that they were on a sidewalk and

11 directly behind him was a curb and a drop-off of six inches. Asked if he could have easily backed up, Movant responded in the negative, explaining, "I have nerve damage in my foot and it is a chore walking forwards sometimes." Then when asked if he would have fallen had he tried to back up, Movant responded in the affirmative. It was at this point, according to Movant, that he pushed the victim, hoping to create some distance between them. The victim then began punching Movant, which knocked Movant to the ground, and the victim continued punching Movant, whereupon Movant stabbed him. In light of this testimony and the Sanders opinion, we cannot say that the motion court's no-prejudice determination was clearly erroneous. There is no reason to believe that a jury would think that "even if [the victim] was the initial aggressor, [Movant] should have just walked away" when Movant claimed he was physically incapable of doing so. Furthermore, when the encounter escalated to the point that Movant "was on the ground being punched" by the victim, then, as was observed in Sanders, "there is no reason to believe that a jury would think that [Movant] was required to retreat before defending himself" because "the jury was instructed that force may be used to the extent the actor reasonably believes it necessary to defend himself from what he reasonably believes to be the use of unlawful force by another person." 652 S.W.3d at 274. On whatever basis the jury ultimately found that Movant did not act in self-defense, that basis was entirely unaffected by the lack of no-duty-to-retreat language in Instruction No.

1. The motion court did not clearly err. Point 3 is denied.

Point 4 Instruction No. 5, the first-degree assault verdict director submitted to the jury at

12 Movant's trial, is relevant to Movant's fourth point. Instruction No. 5 contained no cross- reference to Instruction No. 7, the aforementioned self-defense instruction. Movant's trial counsel, however, affirmatively stated he had "no objection" to it. Movant claimed that trial counsel was ineffective for failing to include this cross- reference. The motion court denied this claim, ruling that Movant suffered "no prejudice" based on Patterson v. State, which evaluated a similar claim that a trial counsel was ineffective in failing to object to a verdict director that did not cross-reference a defense- of-another instruction. 576 S.W.3d 240, 242 (Mo.App. 2019). The western district of this Court observed that "the jury was made 'well aware' of [the] special negative defense during both the State's and defense's closing arguments and that [there was no showing] that the jury failed to use the defense of another instruction in its deliberations." Id. at

1. Additionally, the Western District observed that "the court properly instructed the

jury on [the movant]'s defense of another claim and cautioned the jury, 'Unless you find beyond a reasonable doubt that the defendant did not act in lawful defense of another person, you must find the defendant not guilty.'" Id. This record "conclusively refuted" Strickland prejudice, such that no evidentiary hearing on the matter was required. Id. In his fourth point on appeal, Movant does not challenge the aforementioned determination by the motion court. In fact, Movant concedes that the record in the instant case is analogous to that in Patterson. The parties' closing arguments extensively addressed Movant's claim of self-defense, and Instruction No. 7 provided: "Unless you find beyond a reasonable doubt that the defendant did not act in lawful self-defense, you must find the defendant not guilty." Movant's only argument addressing prejudice is that

13 the motion court "failed to consider the cumulative prejudice" of all of trial counsel's alleged errors relating to Movant's self-defense claim. As already discussed, supra, Movant failed to preserve this argument for appellate review. Point 4 is denied. Point 7 At trial, Movant testified in his own defense and, during his cross-examination, confirmed that he had "a few misdemeanor assault convictions" and "a felony conviction for burglary in the second degree[.]" In his amended post-conviction relief motion, Movant claimed that trial counsel was ineffective in failing to submit MAI-CR 4th 310.10, which would have instructed the jury that his prior convictions could be considered in determining his credibility and the weight afforded to his testimony but may not be considered as substantive evidence of guilt. The motion court denied this cl aim, finding that it resulted in "no prejudice" because, in part, "no party argued or alluded to the convictions after their admission during the cross examination of Movant." In his seventh point, Movant challenges the motion court's no-prejudice finding. Movant concedes that because the State did not emphasize his prior convictions beyond eliciting them during cross-examination, prejudice was minimized. Nevertheless, Movant argues that because of the lack of the aforementioned instruction limiting the extent to which the jury could consider his prior convictions, the jury "was free to consider them as propensity evidence" and that "was prejudice enough." We decline this invitation to speculate that the jury considered Movant's priors in the manner suggested. Strickland is not satisfied with mere conjecture or speculation. State v. Patterson, 824 S.W.2d 117, 123 (Mo.App. 1992). Moreover, Movant ignores that the record refutes his contention.

14 During voir dire, trial counsel informed the jury about Movant's priors and that he spent time in prison. Trial counsel then asked if anyone had "any concerns" upon hearing this information, and no member of the venire indicated they had any such concerns. Cf. State v. King, 988 S.W.2d 663, 668 (Mo.App. 1999) (noting that "the record conclusively demonstrates no prejudice" on a claim that defense counsel was ineffective for "fail[ing] to submit MAI-CR 310.10" where, among other reasons, defense counsel told the jury about the defendant's prior convictions during voir dire and asked whether they could nevertheless presume his innocence). The motion court did not clearly err. Point 7 is denied. Point 8 In his amended post-conviction relief motion, Movant claimed that trial counsel was ineffective in failing to request a fourth-degree assault verdict director and explain imperfect self-defense to the jury during closing argument. The motion court denied this claim, finding that "trial counsel's failure to request instructions on lesser included offenses was proper trial strategy in that lesser included offenses might seem contradictory to a jury and confuse them." Movant contends in his eighth point, his final point related to his self-defense claim, that the motion court erred because trial counsel never testified that his strategy involved not pursuing imperfect self-defense. Movant acknowledges, however, that trial counsel agreed on cross-examination that arguing self-defense and imperfect self-defense "could" have appeared inconsistent. We note further that trial counsel testified that it was his opinion that Movant acted in self-defense and that Movant wanted to pursue such a

15 trial strategy. The Strickland performance prong calls for an inquiry "into the objective reasonableness of counsel's performance, not counsel's subjective state of mind." Thomas v. State, 715 S.W.3d 161, 165 (Mo.App. 2025). Thus, "if imperfect self-defense were an available alternative, ineffective assistance of counsel cannot be established where counsel pursued one reasonable trial strategy to the exclusion of another." Reed v. State, 649 S.W.3d 86, 92 n.9 (Mo.App. 2022) (internal quotation marks omitted). Here, assuming without deciding that imperfect self-defense was available to Movant, but see State v. Phroper, 619 S.W.2d 83, 86-87 (Mo.App. 1981) (standing for the proposition that imperfect self-defense is not available in assault cases), trial counsel's pursuit of outright acquittal on a self-defense theory was nevertheless objectively reasonable. A claim of imperfect self-defense typically consists of showing that either the need to defend or the manner in which a person defended himself was unreasonable. State v. Frost, 49 S.W.3d 212, 218 (Mo.App. 2001). As the eastern district of this Court held in Thomas, a homicide case cited supra, this use-of-unreasonable-force component of an imperfect self-defense claim conflicts with a viable self-defense claim and, as such, pursuing only self-defense to the exclusion of imperfect self-defense is objectively reasonable. 715 S.W.3d at 165. Movant's reliance on Flaherty v. State, involving the failure to request a lesser-included offense instruction, did not involve a claim of self-defense and is, therefore, unavailing. See 694 S.W.3d 413, 421 (Mo. banc 2024). In this case, there is no dispute that trial counsel presented a viable self-defense claim to the jury. The motion court did not clearly err. Point 8 is denied.

16 Points 1 and 2 Movant's remaining points do not concern his first-degree assault conviction or his self-defense claim. We begin with points having to do with two separate claims from Movant's amended post-conviction relief motion where he claimed, first, that his trial counsel and, second, that his appellate counsel, were each ineffective for failing to raise a sufficiency-of-the-evidence challenge to his conviction for armed criminal action. Specifically, Movant claimed that the evidence was insufficient to prove the knife he used to assault the victim was a deadly weapon. The motion court denied these claims, ruling that "[t]he jury found the knife was a deadly weapon and Movant has not met his burden to prove it was not." In his first two points on appeal, Movant contends that these rulings were clearly erroneous. We disagree. A movant may show deficient counsel performance "where an unraised sufficiency claim is shown to have been meritorious." McAllister v. State, 643 S.W.3d 124, 132 (Mo.App. 2022). If the evidence was insufficient "on any element of the convicted offense," a movant successfully demonstrates deficient performance in counsel's failure to raise a sufficiency claim and post-conviction relief is warranted. Id. The offense at issue, armed criminal action, requires that "any person who commits any felony under the laws of this state by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon is also guilty of the crime of armed criminal action ...." Section 571.015.1, RSMo (2016). Here, Movant's sufficiency claim turns only on whether the item at issue was a "deadly weapon" and not whether it was a "dangerous instrument" because the State's criminal complaint alleged that he committed

17 first-degree assault against the victim "by, with and through, the knowing use, assistance or aid of a ... deadly weapon." (Emphasis added.) "The State is required to prove the elements of the offense it charged, not the one it might have charged." State v. Miller, 372 S.W.3d 455, 467 (Mo. banc 2012); see also State v. Payne, 250 S.W.3d 815, 818 n.3 (Mo.App. 2008) (noting that "despite the reference to "dangerous instruments" in the statutes, the jury instructions only describe the attack as being committed with a deadly weapon" and, as a result, "[t]he fact that the evidence might reasonably be construed as an assault with a dangerous instrument is immaterial"). We turn to and limit our sufficiency inquiry, therefore, to what constitutes a deadly weapon. As used throughout Missouri's criminal code, the term "deadly weapon" is defined by statute as "any firearm, loaded or unloaded, or any weapon from which a shot, readily capable of producing death or serious physical injury, may be discharged, or a switchblade knife, dagger, billy club, blackjack or metal knuckles." Section 556.061(22), RSMo (2016), effective Jan. 1, 2017. All parties agree that the following image, admitted into evidence at Movant's evidentiary hearing without objection, depicts the item that the State sought to prove satisfies this "deadly weapon" definition:

18 All parties further agree that this item (which Movant describes as a "pocketknife") is neither a firearm, billy club, blackjack, or metal knuckles. The only dispute, therefore, is whether this item is a switchblade knife or a dagger. A "switchblade knife" is statutorily defined, as "any knife which has a blade that folds or closes into the handle or sheath," and "(a) [t]hat opens automatically by pressure applied to a button or other device located on the handle" or "(b) [t]hat opens or releases from the handle or sheath by the force of gravity or by the application of centrifugal force." Section 571.010(20), RSMo (2016). Movant relies on this definition and asserts that his pocketknife, while foldable, does not open in either of the ways provided for by the "switchblade knife" definition. Movant further relies on the term "knife," statutorily defined as, "any dagger, dirk, stiletto, or bladed hand instrument that is readily capable of inflicting serious physical injury or death by cutting or stabbing a person" and that "[f]or purposes of this chapter, knife does not include any ordinary pocketknife with no blade more than four inches in length." Section 571.010(12). As relevant here, the State concedes, based upon the testimony of one of its own witnesses at Movant's trial, that the blade of the above pocketknife is approximately 3.5 inches in length. At this juncture, we must note that the "deadly weapon" definition at issue is found in chapter 556 of the Missouri Revised Statutes. We must further note that the aforementioned definitions of "switchblade knife" and "knife," found in section 571.010, apply only to "this chapter," i.e., chapter 571 of the Missouri Revised Statutes. As has been previously observed, even though the chapter 571 statutory definition of "knife" includes any "dagger" and excludes "any ordinary pocketknife with no blade more than

19 four inches in length[,]" id., this definition "does not purport to define what is or is not a 'dangerous instrument' or 'deadly weapon' and has no application to statutes using those terms." State v. Chowning, 866 S.W.2d 165, 168 (Mo.App. 1993); see also Payne, 250 S.W.3d at 819 n.4 (cautioning based on Chowning that "it seems unlikely" the "switchblade knife" definition in section 571.010 should be applied to the use of the same term found in section 556.061). Recognizing the absence of applicable statutory definitions, the Payne case, cited supra, attempted to define "dagger" as that term is used in the definition of "deadly weapon" in section 556.061. After amassing a large amount of relevant source material, the western district of this Court stated: Daggers may be described as falling into one or more specific varieties including poniard, dirk, facon, military-issued combat knifes, stilettos, or rondel. When these historical archetypes, as well as the dictionary definitions, are examined, several attributes repeatedly appear including a fixed or locking blade, with sharpened edges, shorter than a sword and longer than an ordinary pocketknife, ranging between 4 and 25 inches, hilt, and designed with the intent to be used primarily for stabbing during combat.

Payne, 250 S.W.3d at 820. Movant argues that, as applied to his pocketknife, many of the characteristics listed in Payne describing a dagger are absent. Some of these arguments, however, rely on a strained interpretation of certain words. For example, Movant argues that his pocketknife "does not have 'sharpened edges'; it had one sharp edge." But see State v. Brookins, 410 S.W.3d 706, 709 (Mo.App. 2013) (stating that a kitchen butcher knife bore most of the attributes identified in Payne, including sharpened edges). Additionally,

20 Movant admits his pocketknife has a handle but argues it "does not have a hilt; it is a pocketknife." But see Hilt, M ERRIAM-WEBSTER'S COLLEGIATE DICTIONARY (11th ed. 2003) (defining "hilt" as "a handle esp. of a sword or dagger" (emphasis added)). Other arguments are less strained, yet have already been considered and rejected by other cases. For instance, Movant argues that his pocketknife "was not designed 'primarily for stabbing during combat'; it is a regular pocketknife that also has a window punch (at the end of the handle) and a cutting hook that can be used to cut cordage when the pocketknife is closed." But see Brookins, 410 S.W.3d at 709-10 (rejecting an argument that 10-inch kitchen butcher knife is not a dagger because its intended use is not for combat); State v. Harrell, 342 S.W.3d 908, 911, 914-15 (Mo.App. 2011) (rejecting similar argument in the context of a 22-inch replica "Sword of Narnia" that was described as a child's toy or carnival prize). Movant's only remaining argument is his strongest and appears to distinguish this case from the existing caselaw. Movant argues that his pocketknife's "blade is not 'longer than an ordinary pocketknife' 'between 4 and 25 inches'; the blade is about 3 3/8 inches." We must note at this juncture, however, that the Payne court, following its attempt to compile numerous dagger archetypes and definitions, cautioned that "not each of these characteristics must be present for a submissible case and a court ought not lightly take the issue out of the jury's prerogative." 250 S.W.3d at 820-21 (emphasis added). In support, the Payne court cited Chowning, supra, for "noting that a pocketknife with a blade of an undetermined length could constitute a dagger[.]" Id. (emphasis added) (citing 866 S.W.2d at 168-69). In light of this cautionary language, we cannot say that the

21 motion court's determination that "[t]he jury found the knife was a deadly weapon and Movant has not met his burden to prove it was not" was clearly erroneous based upon a mere half inch (as conceded by the State) or even a 5/8 inch deviation (as Movant asserts) from the broad, 21-inch span of blade lengths that the Payne court suggested is but one of many characteristics of a dagger. Points 1 and 2 are denied. Point 9 The final issue we address involves the trial court's finding during pretrial proceedings that Movant was a persistent assault offender. A "persistent assault offender" is defined as "a person who has been found guilty of two or more assault offenses, where such two or more offenses occurred within ten years of the occurrence of the assault for which the person is charged[.]" Section 565.079.1(2), RSMo (2016). In its amended information, the State alleged that Movant had been found guilty of two qualifying assault offenses. Only one of these alleged assault offenses is disputed; specifically, that "[o]n or about December 12, 2011, in the Circuit Court of Laclede County, Missouri, defendant was found guilty of Assault of a Law Enforcement Officer in the Third Degree for events that occurred on April 20, 2011." At trial, the State offered into evidence the judgment reflecting Movant's conviction for this offense, which specifically stated that it involved "Physical Injury" and was a "Misdemeanor A" under section "565.083[.]" The trial court admitted this document into evidence after rejecting an argument by trial counsel that said conviction did not qualify as an assault offense under section 565.079. In his amended post-conviction relief motion, Movant claimed that "[a]ppellate counsel" was ineffective in failing to "raise a claim on appeal" challenging the

22 sufficiency of the evidence to support the trial court's persistent assault offender finding. Specifically, Movant argued that section 565.079 lists qualifying assault offenses and nowhere therein is "Assault of a Law Enforcement Officer in the Third Degree" listed. The motion court provided only one reason for denying this claim, finding that "trial [c]ounsel did, in fact, challenge the sufficiency of the evidence to support a persistent assault offender finding and provided the Court with [section 565.079] as authority to support Movant's argument." Movant argues, and we agree, that this finding is clearly erroneous because it does not address Movant's claim that he received ineffective assistance of appellate counsel. Regardless, however, the motion court reached the right result. See Watson, 545 S.W.3d at 914-15. "Statutory interpretation is a question of law, and questions of law are reviewed de novo." Shores v. State, 674 S.W.3d 127, 136 (Mo.App. 2023) (internal quotation marks omitted). "Our primary rule of statutory interpretation is to give effect to legislative intent as reflected in the plain language of the statute at issue." Id. (internal quotation marks omitted). "Ascertaining the legislature's intent in statutory language should not involve hypertechnical analysis but instead should be reasonable, logical, and should give meaning to the statutes." State v. Milazzo, 711 S.W.3d 329, 333 (Mo. banc 2025) (internal quotation marks omitted). Turning to the statutory language at issue, an "assault offense" is defined as: the offenses of murder in the first degree, murder in the second degree, voluntary manslaughter, involuntary manslaughter in the first degree, assault in the first degree, assault in the second degree, assault in the third degree, assault in the fourth degree, domestic assault in the first degree, domestic assault in the second degree, domestic assault in the third degree,

23 domestic assault in the fourth degree, or an attempt to commit any of these offenses, or the commission of an offense in another jurisdiction that if committed in this state would constitute the commission of any of the listed offenses[.]

Section 565.079.1(1). We begin our analysis by noting that Movant is correct that none of the aforementioned assault offenses are named, specifically, "Assault of a Law Enforcement Officer in the Third Degree[.]" What Movant ignores, however, is that between his December 2011 conviction for that offense and his October 2017 assault of the victim, the legislature restructured Missouri's criminal code. Three aspects of that restructuring are relevant here. First, the legislature repealed the statute containing the "Assault of a Law Enforcement Officer in the Third Degree" offense at issue. See section 565.083, RSMo Cum. Supp. (2012) (specifically titled, "Assault of a law enforcement officer, corrections officer, emergency personnel, highway worker, utility worker, cable worker, or probation and parole officer in the third degree, definitions, penalty"), repealed by L.2014, S.B. No. 491, sec. A , eff. Jan. 1, 2017. As relevant in regard to that offense, the written judgment in evidence reflects that Movant was convicted of this class A misdemeanor on a "Physical Injury" basis. The now-repealed statute previously reflected three ways in which the statute could be violated; however, the phrase "physical injury" appeared in only two of said ways. Those two ways, specifically, were that a person commits the crime of assault of a law enforcement officer in the third degree if: "[s]uch person recklessly causes physical injury to a law enforcement officer" or " [s]uch person

24 purposely places a law enforcement officer ... in apprehension of immediate physical injury[.]" Section 565.083.1(1)-(2) (emphasis added). Next, the legislature created the designation of "persistent assault offender" and the aforementioned "assault offense" definition also at issue. See section 565.063, RSMo Cum. Supp. (2009), transferred to section 565.079 and amended by L.2014, S.B. No. 491, sec. A , eff. Jan. 1, 2017. As already noted, the "assault offense" definition includes "assault in the fourth degree" as one of the listed offenses. Section 565.079.1(1). Assault in the fourth degree is relevant to this analysis, as we will explain infra, and is an offense that the legislature also newly created as part of the criminal code restructuring under discussion. See section 565.056, RSMo (2016), enacted by L.2014, S.B. No. 491, sec. A , eff. Jan. 1, 2017. We finally turn, therefore, to assault in the fourth degree. A person can commit the offense of assault in the fourth degree in six ways, two of which are relevant here: "[t]he person ... recklessly causes physical injury ... to another person" or "[t]he person purposely places another person in apprehension of immediate physical injury[.]" Section 565.056.1(1), (3). The first enumerated way to commit the offense of assault in the fourth degree is a class A misdemeanor in all instances. Section 565.056.2. Committing the offense in the second enumerated way is a class C misdemeanor unless the victim is a special victim, in which case the violation is a class A misdemeanor. Section 565.056.3. The definition for a "special victim" includes "[a] law enforcement officer assaulted in the performance of his or her official duties or as a direct result of such official duties[.]" 565.002(14)(a), RSMo Cum. Supp. (2017).

25 Thus, we have come full circle to Movant's 2011 conviction, which, based solely upon its name, Movant maintains is excluded from being an assault offense under section 565.079.1(1). Assault in the fourth degree, however, is listed as an assault offense and, to the extent relevant here, is classified in the same manner and contains the same elements as assault of a law enforcement officer in the third degree. Compare section 565.083 with section 565.056. Movant's argument, if adopted, would mean that, for the purpose of determining whether a person is a persistent assault offender under section 565.079.1(2), assaults under section 565.083 would be treated differently than assaults under section 565.056, even if the assaults involved substantively identical conduct. This argument is simply "inconsistent with the fundamental principle that the construction of a statutory scheme should avoid unreasonable or absurd results." Dixon v. Mo. State Hwy. Patrol, 583 S.W.3d 521, 527 (Mo.App. 2019) (internal quotation marks omitted). Moreover, we observe parallels between the instant case and Dixon, supra, which addressed the issue of whether merely renaming "sexual misconduct in the third degree" to "sexual misconduct in the second degree" affected the ability of someone convicted under the former offense to petition for removal from the sex offender registry. Id. at 526. Here, as in that case, "[i]t would be unreasonable to attribute significant, substantive effect to the legislature's 'housekeeping' act of renaming the offense" at issue. Id. at 527. None of the cases Movant cites in support of his argument to the contrary are similarly analogous, in that none involved the renaming or recodification of an offense. See Turner v. State, 245 S.W.3d 826, 827 (Mo. banc 2008); State v. Green, 597 S.W.3d 229, 239 (Mo.App. 2019); State v. St. John, 186 S.W.3d 847, 852 (Mo.App. 2006); Thomas v.

26 Kemna, 55 S.W.3d 487, 490 (Mo.App. 2001). In sum, the motion court reached the right result. Movant's proposed sufficiency claim, if raised in his direct appeal, would not have been meritorious. Point 9 is denied. Decision The motion court's denial of post-conviction relief is affirmed.

BECKY J. WEST, J. – OPINION AUTHOR MATTHEW P. HAMNER, J. – Concurs BRYAN E. NICKELL, J. – Concurs