State of Missouri, Plaintiff-Respondent v. Timothy J. Whalen, Defendant-Appellant

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: State of Missouri, Plaintiff-Respondent v. Timothy J. Whalen, Defendant-Appellant Case Number: ED76038 Handdown Date: 05/16/2000 Appeal From: Circuit Court of Jefferson County, Hon. Gary P. Kramer Counsel for Appellant: Irene Karnes Counsel for Respondent: John Munson Morris and Adriane D. Crouse Opinion Summary: Defendant Timothy Whalen appeals his convictions for one count assault in the first degree in violation of RSMo. section 565.050 (1994), a class A felony, two counts of assault in the first degree in violation of section 565.050, a class B felony, and three counts of armed criminal action in violation of section 571.015. AFFIRMED. Division Three holds: (1) Whalen either contemplated or should have contemplated the presence of Officers Taylor and Edler in his home. Therefore the trial court did not err in entering a judgment of guilty on Counts III-VI. (2) The trial court did not err in submitting both a voluntary intoxication or drugged condition jury instruction and the affirmative defense of not guilty by reason of mental disease or defect. (3) The trial court did not abuse its discretion in denying Whalen's motion for change of venue due to extensive pretrial publicity. Citation: Opinion Author: Lawrence E. Mooney, Judge Opinion Vote: AFFIRMED. Teitelman, P.J., concurs in result with separate concurring opinion, Ahrens, J., concurs. Opinion:

Timothy Whalen ("Defendant") appeals the judgment entered on his convictions for one count assault in the first degree in violation of RSMo. section 565.050 (1994), (FN1) a class A felony, two counts of assault in the first degree in violation of section 565.050, a class B felony, and three counts of armed criminal action in violation of section 571.015. (FN2) Defendant contends: (1) the trial court plainly erred in entering a judgment of guilty against Defendant on Counts III- VI because the State failed to present evidence from which a reasonable juror could find beyond a reasonable doubt that Defendant was guilty of attempting to cause serious physical injuries to Officers Taylor and Edler; (2) the trial court erred in overruling defense counsel's objection to the submission of a voluntary intoxication or drugged condition jury instruction, because the instruction created a conclusive presumption of responsibility that conflicts with the substantive law of nonresponsibility due to mental disease or defect; and (3) the trial court erred in overruling Defendant's change of venue motion due to extensive pretrial publicity. We affirm. Facts In November 1997, Defendant became distraught after losing his job of almost five years, and thereafter began using marijuana and methamphetamine on a daily basis. By January 1998, Defendant's behavior became a matter of serious concern for both his parents and wife, because he insisted that his former employer had conspired to control his family life, used his social security number to launder money, and plotted to kill him. Defendant's family attempted to reason with him on numerous occasions, but Defendant steadfastly maintained his beliefs about the conspiracy. On January 28, 1998, Defendant's father informed Defendant that they would have him involuntarily committed to a mental hospital the next day, if he would not go on his own volition. Defendant agreed to be hospitalized, but indicated he wanted to rest first. During the early morning hours of January 29th, Defendant's wife was awakened by the sound of loud banging on the door and someone yelling "It's the police, open up, it's the police." Although wife had not summoned the police, she got up to dress and answer the door. Defendant, however, came into the bedroom and grabbed a gun, insisting it was not the police at the door. Wife answered the door and talked with Officer Taylor, while Defendant continued to yell that the person at the door was not a police officer. Officer Taylor explained that he was responding to a 911 hang-up call from the residence; wife informed the officer that Defendant was having a nervous breakdown and wanted to go to the hospital. Wife also told Officer Taylor that there was no reason for him to come inside, so he returned to his vehicle to wait until Corporal Cummines and Deputy Edler arrived as back-up. All three officers returned to the house and remained in the entryway, where they talked with wife about the situation for several minutes. Wife informed the officers that Defendant had a gun in

the bedroom with him. Defendant, meanwhile, continued to yell about the conspiracy, demanded to see police identification, and wanted the lights on the ambulance turned on. The officers ultimately proceeded down the hall to the bedroom, with Corporal Cummines in front of Officers Taylor and Edler. As Cummines stopped at the doorway, he drew his service revolver and turned to motion the others to stop. At that moment, Defendant shot Cummines, critically injuring him with a single 12-gauge shotgun blast to the head. The two officers were able to get the corporal outside, and they waited for an ambulance. Corporal Cummines was taken to the hospital, where he underwent brain surgery to remove portions of his brain. Cummines remained on a ventilator for three days. Officers Edler and Taylor also received medical attention. Edler felt a hot air and stinging sensation on his face and hand, which required a tetanus shot, while Officer Taylor felt a hot flash on his cheek and was also observed and treated at the hospital. Defendant's wife and son escaped from the house after shots were fired. Defendant, however, remained in the home following the shootout, and a negotiator from the Emergency Response Team was called to the scene. The police negotiator testified at trial that Defendant informed him through the window that he had "already shot one and that if anybody came in he'd shoot another." Defendant was finally restrained several hours later. The police subsequently seized a 12-gauge shotgun and film canister containing methamphetamine from the home. Prior to trial, Defendant filed a motion for change of venue due to pretrial publicity, which was denied. The motion was renewed before the jury was seated, and was again denied. Defendant also timely filed a notice of intent to rely on a defense of mental disease or defect. The court ordered a mental examination for the purpose of obtaining an expert opinion as to whether Defendant was competent to stand trial and whether he was criminally responsible for his actions on the night in question. Dr. Rabun, a forensic psychiatrist appointed to examine Defendant, concluded that Defendant suffered from an amphetamine-induced psychotic disorder at the time he fired the shotgun at Corporal Cummines. The doctor further testified that Defendant had stated he saw a person with a uniform enter the bedroom with his gun holstered on the morning of the shooting. It was also Dr. Rabun's opinion that, due to the substance-induced psychosis Defendant was experiencing at the time of the shooting, Defendant did not believe that Corporal Cummines was a police officer and did not appreciate the nature, quality or wrongfulness of his conduct. Despite the doctor's testimony, the jury found Defendant guilty on each of the charges, and the judge sentenced him to consecutive terms of twenty years and six years, on Counts I and II respectively, to be followed by concurrent terms of five years on Count III, three years on Count IV, five years on Count V, and three years on Count VI, for a total of

thirty-one years' imprisonment. Defendant filed this timely appeal. Analysis Point I: Sufficiency of the Evidence In his first point on appeal, Defendant contends that the trial court plainly erred in entering judgment on the jury's verdict and sentencing Defendant on Counts III-VI, which allege Defendant committed first-degree assault and armed criminal action against Officers Taylor and Edler. According to Defendant, the State failed to produce evidence from which a reasonable juror could find beyond a reasonable doubt that Defendant was guilty of attempting to cause serious physical injury to Officers Taylor and Edler by shooting them, in that the evidence did not show that Defendant could see the two officers, or even knew they were in the residence, when he fired at Corporal Cummines. We disagree. Plain error does not embrace all trial error, and this court's discretion to reverse a conviction on the basis of plain error should be utilized sparingly. State v. Roberts, 948 S.W.2d 577, 592 (Mo. banc 1997). "Plain error is evident, obvious and clear error." State v. Long, 925 S.W.2d 220, 222 (Mo.App. E.D. 1996), quoting State v. Bailey, 839 S.W.2d 657, 661 (Mo.App. W.D. 1992). Relief under the plain error review standard is granted only where the alleged error will so substantially affect a defendant's rights that a manifest injustice or a miscarriage of justice inexorably results if left uncorrected. State v. Tokar, 918 S.W.2d 753, 769-770 (Mo. banc 1996). A showing of mere prejudice is not enough. State v. Kalagian, 833 S.W.2d 431, 434 (Mo.App. E.D. 1992). Moreover, a defendant bears the burden of demonstrating manifest injustice or miscarriage of justice. State v. Baller, 949 S.W.2d 269, 272 (Mo.App. E.D. 1997). When reviewing a challenge to the sufficiency of the evidence, this Court views the evidence and all reasonable inferences in the light most favorable to the verdict and ignores all contrary evidence and inferences. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993); State v. Rousan, 752 S.W.2d 388, 389 (Mo.App. E.D. 1988). Appellate review is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. State v. Williams, 623 S.W.2d 552, 553 (Mo. 1981). We cannot find that the trial court erred, let alone plainly erred, given the evidence from which the jury could have found that Defendant committed first-degree assault against Officers Taylor and Edler. It is undisputed that Defendant committed the assaultive act; Defendant does, however, dispute that he possessed the requisite intent to assault Officers Taylor and Edler. Direct proof of mental state in a criminal case is seldom available and such intent is usually inferred from circumstantial evidence. State v. Brown, 660 S.W.2d 694, 699 (Mo. banc 1983). Moreover, a defendant's mental state may be determined from evidence of his conduct before the act, the act itself and from defendant's subsequent conduct." State v. Stewart, 811 S.W.2d 805, 808 (Mo.App. E.D. 1991), citing State v. Johnson, 770 S.W.2d 263, 267

(Mo.App. W.D. 1989). Our court has recently addressed the issue of intent to commit first-degree assault in State v. Stewart, in which Judge Reinhard adopted a "contemplated or should have contemplated" standard for determining whether a defendant knowingly commits first-degree assault. 811 S.W.2d 805. There, the evidence revealed that the defendant and victim had a fistfight, after which the victim went to his wife's house where he sometimes spent the night. Id., at 807. Defendant arrived in the victim's neighborhood later that night, and announced his intentions to blow up the victim's house. Id. Defendant subsequently threw a Molotov cocktail into the victim's home, injuring the victim, his wife and their baby. Id. In reviewing the sufficiency of the evidence, this court stated, "If [the accused] knows the probable consequence of the assault will be to injure any one or all of the persons he sees or is otherwise bound to believe are before him, he will be liable as to any one of them." Id., at 808, citing State v. Macone, 585 S.W.2d 64, 67 (Mo.App. S.D. 1979) (emphasis added); State v. Theus, 967 S.W.2d 234, 239 (Mo.App. W.D. 1998). He further stated that a "strong case was made on the assault of [victim]" and that "defendant either contemplated or should have contemplated the presence of [victim's] wife and family in their home and was therefore sufficient to warrant submission to the jury on the question of intent to commit first degree assault [against victim's wife and child]." (emphasis added). Stewart, 811 S.W.2d at 808.(FN3) In the present situation, sufficient evidence clearly exists to warrant submission to the jury on the question of whether Defendant contemplated or should have contemplated the presence of Officers Taylor and Edler at the time of the shooting. Officer Taylor testified that he repeatedly identified himself to Defendant after Defendant demanded to see some identification and the red flashing lights. In fact, Officer Taylor's car lights were on when Officer Edler arrived at the scene. Moreover, three law enforcement officers stood inside Defendant's living room for several minutes, discussing how to handle the situation. In addition, the police negotiator testified at trial that after Defendant shot Corporal Cummines, the Defendant informed him that "he'd already shot one and if anybody came in he'd shoot another." Clearly, Defendant was aware that several law enforcement officers were at the scene, hoping to quell this volatile situation and disarm Defendant. A defendant, suffering a nervous breakdown and armed with a shotgun, should reasonably contemplate that a police officer attempting to disarm and restrain him would have the immediate aid of back-up officers.(FN4) Such evidence shows that Defendant either contemplated or should have contemplated the presence of Officers Taylor and Edler in his home. In rendering such holding, we mean that from the facts and circumstances then extant, Defendant should reasonably infer their presence. Therefore, the trial court did not err in entering a judgment of guilty on Counts III-VI. Point I denied.

Point II: Alleged Instructional Error Defendant also argues that the trial court erred in overruling defense counsel's objection to the jury instruction entitled "Intoxicated or Drugged Condition, Voluntary," ("Instruction 19"), in that the instruction created a conclusive presumption of responsibility that conflicts with the substantive law of nonresponsibility due to mental disease or defect. Defendant further contends that although the jury was instructed on Defendant's affirmative defense of not guilty by reason of mental disease or defect, submitting Instruction 19 rendered his defense impotent. We disagree. Instruction 19 states as follows: The state must prove every element of the crime beyond a reasonable doubt. However, in determining the defendant's guilt or innocence, you are instructed that an intoxicated or drugged condition from drugs will not relieve a person of responsibility for his conduct. MAI- CR3d 310.50. In addition, Instruction 9, which sets forth Defendant's affirmative defense of not guilty by reason of mental disease or defect, states in pertinent part: One of the issues of as to Count 1 is whether the defendant lacks responsibility by reason of mental disease of defect. In this state, a person is not responsible for criminal conduct if, at the time of such conduct, as a result of mental disease or defect, he was incapable of knowing and appreciating the nature, quality, or wrongfulness of his conduct. The terms "mental disease or defect" means any abnormality regardless of its medical label, origin, or source. All persons presumed to be free of mental disease or defect excluding responsibility. The burden rests on the defendant to prove by the greater weight of the credible evidence that he is not guilty by reason of such mental disease or defect excluding responsibility. . . As to Count 1, even if you find and believe from the evidence beyond a reasonable doubt that the defendant engaged in the conduct submitted in Instruction No. 7, and if you further find and believe by the greater weight of the credible evidence: First, that at the time of that conduct, the defendant had a mental disease or defect, and Second, that, as a result of it, he was incapable of knowing and appreciating the nature, quality, or wrongfulness of his conduct, Then you must find the defendant not guilty under Count 1 by reason of a mental disease or defect excluding responsibility. MAI-CR3d 306.02A.(FN5) The introductory comments to MAI-CR3d clearly state that "[w]hen an MAI-CR3d instruction or verdict form is applicable, that instruction or verdict form must be given to the exclusion of any other on the same subject." MAI-CR3d, "How to Use This Book-Overview" p. i (1998). Nonetheless, we recognize that the Missouri Supreme Court has held that MAI-CR and its Notes on Use are "not binding" to the extent they conflict with the substantive law. State v. Carson, 941 S.W.2d 518, 520 (Mo. 1997), citing State v. Anding, 752 S.W.2d 59, 61 (Mo. banc 1988). However, we do not interpret

Carson as eliminating the mandate that applicable MAI instructions must be given, but instead as merely holding that parties can challenge the submission of such instructions when they conflict with substantive law. Defendant has failed to provide us with any caselaw in support of his contention that Instruction 19 conflicts with the substantive law of nonresponsibilty due to mental disease or defect, and we find no such conflict to exist. As such, we conclude that the trial court properly submitted Instruction 19. Further, Dr. Rabun was allowed to testify that Defendant suffered from an amphetamine-induced psychotic disorder, and Defendant was allowed to submit and argue his instruction on nonresponsiblity due to mental disease or defect. We fail to perceive how this affirmative defense, submitted and argued, was rendered impotent by Instruction 19. Point II denied. Point III: Change of Venue Defendant also contends that the trial court erred and abused its discretion in overruling his motion for change of venue due to extensive pretrial publicity, which so permeated the Jefferson County venire panel that a jury could not have decided the case solely on the evidence presented. We disagree. The decision to grant or deny a change of venue motion for cause is a matter of trial court discretion, and its ruling will not be reversed absent an abuse of discretion. State v. Kinder, 942 S.W.2d 313, 323 (Mo. banc 1996), citing State v. Feltrop, 803 S.W.2d 1, 6 (Mo. banc 1991). A trial court abuses its discretion in denying a change of venue when the record shows that the inhabitants of the county are so prejudiced against the defendant that a fair trial cannot occur there. Feltrop, 803 S.W.2d at 6. The relevant question is not whether there was publicity surrounding the crime, nor whether the prospective jurors in a case remembered the publicity or the crime; the critical question is whether the jurors had such fixed opinions that they could not impartially judge the defendant's guilt. State v. Leisure, 749 S.W.2d 366, 376 (Mo. banc 1988). Our review of the venire panel's exposure to pretrial publicity does not indicate the jury was so prejudiced against the defendant that a fair trial could not occur. First, Defendant's trial occurred in February 1999, over thirteen months after the incident occurred. Moreover, the court and both attorneys thoroughly questioned prospective jurors concerning their views about the case. The trial judge dismissed ten venirepersons for cause on the court's own motion based upon statements they made in response to questions about pretrial publicity. Further, jurors Ebert and Naucke, who Defendant specifically points out in his brief had acknowledged that they previously discussed the case and their opinions about the events with other individuals, stated during voir dire that they had not made up their minds about the case. As such, the trial court did not abuse its discretion in denying Defendant's motion for change of venue. Point III denied.

The judgment is affirmed. Footnotes: FN1.All future statutory cites are to RSMo (1994) unless otherwise indicated. FN2.Defendant was charged by information with the following crimes: Count I, class A felony of first-degree assault; Count II, armed criminal action; Count III, Class B felony of first-degree assault; Count IV, armed criminal action; Count V, Class B felony of first-degree assault; and Count VI, armed criminal action. FN3.Unlike the separate concurring opinion, we do not interpret the Stewart holding as dicta. A careful reading of the case does not show there was evidence from which a reasonable juror could have found that the defendant actually perceived the wife and child in the home at the time he threw the bomb. To the contrary, the court acknowledges that while a strong case was made on the assault of one victim, defendant "contemplated or should have contemplated" the presence of that victim's wife and child in the home. FN4.We respectfully disagree with the separate concurring opinion's interpretation of the record that there was evidence that Defendant saw Officer Cummines motion to his fellow officers to stay back. FN5.Defendant also submitted the MAI-CR3d 306.02A jury instruction for mental disease or defect, set forth in instructions 13 and 17, as an affirmative defense to the additional two assault counts brought against him. Separate Opinion:

appeal. I concur in result as to Defendant's claim of error in Point One challenging sufficiency of the evidence, and I write separately to express my disagreement with the rationale relied on by the majority in deciding that issue. There is no dispute that Defendant intentionally shot officer Cummines, causing him serious physical injury; the issue is whether Defendant knew at the time that the other two officers were present. Defendant asserts in Point One that the trial court committed plain error in entering judgment on counts three through six, because the State failed to make a submissible case that he intended to injure officers Taylor and Edler, in that the evidence did not show that he knew that any other officers were present in the residence when he fired the single shotgun blast that struck officer Cummines. It is plain error to submit a case on evidence insufficient to make a submissible case. State v. Rivers, 554 S.W.2d 548, 550 (Mo. App. E.D. 1977). "If the evidence is insufficient to sustain a conviction, plain error affecting substantial rights is involved from which manifest injustice must have resulted." State v. Withrow, 8 S.W.3d 75, 77 (Mo. banc 1999); State v. Nations, 676 S.W.2d 282, 283 (Mo. App. E.D. 1984). When reviewing a challenge to sufficiency of the evidence, we are required to determine whether there is sufficient evidence from which a reasonable juror could have found the defendant guilty beyond a reasonable doubt. In considering whether the evidence is sufficient to support the jury's verdict, we must look to the elements of the crime and consider each in turn. [W]e are required to take the evidence in the light most favorable to the State and to grant the State all reasonable inferences from the evidence. We disregard contrary inferences, unless they are such a natural and logical extension of the evidence that a reasonable juror would be unable to disregard them. Taking the evidence in this light, we consider whether a reasonable juror could find each of the elements beyond a reasonable doubt.

State v. Grim, 854 S.W.2d 403, 411 (Mo. banc 1993). First degree assault is a specific intent crime. State v. Chambers, 998 S.W.2d 85, 90 (Mo. App. W.D. 1999). An essential element of that crime is that the defendant acted knowingly in either causing or attempting to cause serious physical injury to another; mere recklessness is not enough. State v. Ricker, 936 S.W.2d 167, 171 (Mo. App. W.D. 1996). One acts "knowingly" with respect to a result of his conduct "when he is aware that his conduct is practically certain to cause that result," and acts "knowingly" with respect to the attendant circumstances "when he is aware . . . that those circumstances exist . . ." Section 562.016.3 RSMo 1994; State v. Nations, 676 S.W.2d at 284; LaFave and Scott, 1 Substantive Criminal Law section 3.5 at pp. 306-307 (1986) (hereinafter, "LaFave and Scott"). These statutory provisions, which are based on the Model Penal Code, contemplate that one "knows" of present events only if he is actually aware of them. 1 LaFave and Scott, section 3.5 at p. 307. One is not ordinarily guilty of a crime unless he is aware of all the facts which make his conduct criminal; without such guilty knowledge criminal intent cannot exist. 22 C.J.S. Criminal Law, Sec. 36, p.43 (1989). Actual knowledge of the physical presence of the alleged victim of an assault is required in order for a defendant to have the requisite criminal intent. State v. Martin, 119 S.W.2d 298, 301 (Mo. 1938). "If A shoots at B and the bullet wounds C whose presence is unknown all the cases hold there can be no conviction . . ." Id. "Neither will the intent be transferred from those known to be in a group to others of whose presence the accused is ignorant." Id. The majority opinion, in holding there is sufficient evidence to support a finding that Defendant knew two other police officers were present and standing nearby when Defendant fired the single shot that hit officer Cummines, relies entirely on evidentiary bases that do not support such a finding, while at the same time ignoring the one crucial piece of evidence that does support the finding. The majority then seeks to explain such reasoning by relying on a "should have contemplated" standard that is unsound as a matter of law. The majority cites the case of State v. Stewart, 811 S.W.2d 805 (Mo. App. E.D. 1991), which in turn cited to State v. Macone, 585 S.W.2d 64 (Mo. App. S.D. 1979), in support of this standard. Quoting from Stewart, the majority states: "If [the accused] knows the probable consequences of the assault will be to injure any one or all of the persons he sees or is otherwise bound to believe are before him, he will be liable as to any one of them. Id., at 808, citing State v. Macone, 585 S.W.2d 64, 67 (Mo. App. 1979) (emphasis added). . . ." (FN1) However, a careful reading of Macone, which was a very well-reasoned decision, shows that it does not support the proposition that the standard is whether the defendant knew or should have known that others were present; rather, Macone requires a defendant to have actual knowledge of the victims' presence in order to find the requisite intent to cause injury. In fuller context, the quoted segment from

Macone states as follows: In State v. Martin, 342 Mo. 1089, 199 S.W.2d 298 (1938) the court reversed because the state failed to prove intent, there being no evidence that defendant knew that the alleged victim was in the cab at which the defendant threw acid while passing in another car. The court in ruling that the evidence did not warrant an inference that the defendant could have seen or known that the victim or any third party was in the cab, stated, at 301-302: "We do not mean that he must know of each individual in the group. If he [accused] knows the probable consequence of the assault will be to injure any one or all of the persons he sees or otherwise is bound to believe are before him, he will be liable as to any one of them. But if, without his knowledge, there be still another person present concealed, as behind a bush or wall for illustration, he would not be liable as to that person, for he could have no specific intent as to him." State v. Macone, 585 S.W.2d at 67. (emphasis added) Thus, it is clear that Macone does not stand for the "should have known" standard that the majority appears to read into Stewart, just as Stewart itself does not stand for that proposition. In the context of criminal law, a person acts "knowingly" only when he or she is actually aware of the facts and circumstances which make the act a crime. State v. Nations, 676 S.W.2d at 284. "Should have known" is fundamentally inconsistent with a criminal statute's requirement that a defendant act knowingly, because "whether a defendant acted knowingly depends on what his or her state of mind actually was, not what it should have been." State v. Sargent, 594 A.2d 401, 402 (Vt. 1991); see also State v. Beale, 299 A.2d 921, 924 (Maine 1973). "Knowledge in a criminal statute means actual knowledge." U.S. v. Ladish Malting Co., 135 F.3d 484, 488 (7th Cir. 1998). (emphasis in original) "What one ought to have known, but did not know, is not knowledge; it is not even (necessarily) recklessness." Id. I am very concerned that the majority opinion herein relies on exactly such a misguided standard of "knowledge," when it shrinks from saying Mr. Whalen actually knew the other two officers were present, yet insists nonetheless that the evidence against Mr. Whalen as to those two officers is sufficient because he should have known they were present.(FN2) If we had to depend in this case solely on the evidence that the majority points to for sufficiency of the evidence, then reliance upon such a standard would perhaps be understandable, because none of that evidence is substantial. The majority notes that the first officer on the scene repeatedly identified himself to Defendant shortly after he arrived at the residence. This is irrelevant because it is absolutely clear from the evidence, and undisputed, that Defendant knew there was one officer on the scene; the question is whether he ever became aware, before firing at officer Cummines, that any other officers had entered the residence. The majority further notes that, after the two backup officers arrived, the three officers stood for several minutes in Defendant's living room discussing how to handle the situation. But in the absence of some evidence that the officers were speaking loudly, or that Defendant could hear them while he was in his bedroom in another part of the residence,

this provides no more than an extremely strained and speculative inference at best.(FN3) The majority next notes that after shooting officer Cummines, Defendant stated that he had shot one person and would shoot another. Not only is this evidence insubstantial, it undercuts the majority's position. First, it suggests that Defendant actually intended to shoot only one person, not any others who were also present with officer Cummines, assuming he was even aware of the others' presence. Additionally, the record reveals that when Defendant yelled that he had shot one and would shoot another, he was responding to a member of the emergency response team who negotiated with him for several hours after the incident; the remark was made well after the shooting, and thus is not probative of Defendant's knowledge of the presence of other officers at the time he shot officer Cummines. Next, having thus far cited no evidence that Defendant was aware of the other officers' presence, the majority opinion states: "A defendant, suffering a nervous breakdown and armed with a shotgun, should reasonably contemplate that a police officer attempting to disarm and restrain him would have the immediate aid of back-up officers." My primary concern with this statement is twofold. First, no defendant---whether suffering a nervous breakdown or perfectly sane--- should be assumed to be clairvoyant. It is common knowledge that police officers do sometimes, with great bravery and courage, at the risk of their own lives, act without the aid of backup officers in an attempt to defuse a dangerous situation. It therefore is not logical for the majority to make the inference that it makes, by assuming that Defendant should have somehow divined or known in advance the police procedure that would be used. Second, this statement again reveals that the majority is relying on what amounts to a "should have known" standard to find the requisite criminal intent. For reasons I have previously discussed, that standard is legally unsound. The correct standard is not that Defendant should have known or "reasonably contemplated," but rather that he actually did know. With regard to Defendant's state of awareness concerning the possible presence of two other officers when he fired at officer Cummines, it is clear that the facts relied on by the majority would at most constitute the culpable mental state of "acting recklessly," as that term is defined by Missouri law. See section 562.016.4 RSMo 1994. But first degree assault expressly requires that a defendant act knowingly in either causing or attempting to cause serious physical injury to the victim; acting recklessly is not sufficient. State v. Ricker, 936 S.W.2d 171. Indeed, this Court has twice held that even evidence of a defendant's "wilful blindness" is not sufficient to support conviction when a criminal statute requires that the defendant act "knowingly," finding that our legislature "rejected the expansion of 'knowingly' to include wilful blindness of a fact and chose to limit the definition of 'knowingly' to actual knowledge of a fact." State v. Nations, 676 S.W.2d at 285; State v. Hopkins, 873 S.W.2d 911, 912 (Mo. App. E.D. 1994). There is sufficient evidence Defendant knew of the presence of the other officers when he fired at officer

Cummines. The record reflects that there was testimony, on the part of both officers Taylor and Edler, from which a juror could find that Defendant saw officer Cummines motion to his fellow officers to stay back, as officer Cummines was standing in front of the bedroom doorway, just before Defendant fired the gun. From this testimony a juror could reasonably infer that Defendant must have known the other officers were present and standing near officer Cummines just outside the doorway, at the time Defendant fired the shotgun blast in their direction, even though Defendant possibly may not have seen those other officers. Viewing the evidence and all reasonable inferences therefrom in the light most favorable to the verdict, this is enough to allow a reasonable juror to find beyond a reasonable doubt that Defendant knew the other officers were nearby and in harm's way at the time he fired his shotgun blast. In short, it is completely unnecessary in this case, and in any event wrong as a matter of law, to find sufficiency of evidence as to Defendant's intent based on what he "should have" known or "should have" contemplated. The evidence in this case is sufficient to support Defendant's convictions on counts three through six not because it demonstrates what Defendant should have known, but because it demonstrates what he actually did know. Footnotes: FN1.Stewart dealt with a situation where the defendant threw a firebomb into a house, and the issue was whether there was sufficient evidence that he knew the victims were inside the house when he did so. Since a careful reading of Stewart shows there was evidence from which a reasonable juror could have found that the defendant actually did know individuals other than the primary intended victim were inside the house at the time he threw the bomb, the decision in Stewart is dicta to the extent it may suggest that such actual knowledge is not necessary, and that "should have contemplated" would suffice. FN2.The State expressly offered the theory of transferred intent in closing argument at trial. That is, that because Defendant indisputably intended to seriously injure one person, and did so, he should also be held guilty of assault with respect to any other persons his assaultive act may have injured, even though he might not have intended to injure them or even been aware of their presence. But as noted in Defendant's well-written reply brief, under Missouri statutory law the transferred intent doctrine (sometimes referred to as the notion that "intent follows the bullet") applies only in homicide cases; there is no corresponding authority applying the doctrine to charges of assault. This has long been the law in Missouri. See State v. Macone, 585 S.W.2d at 66, n.2. FN3.Although we must view the evidence in a light most favorable to the verdict and give the State the benefit of all reasonable favorable inferences therefrom, in criminal cases just as in civil cases, we may "not supply missing evidence, or give the plaintiff the benefit of unreasonable, speculative or forced inferences." Bauby v. Lake, 995 S.W.2d 10, 13, n.1 (Mo. App. E.D. 1999). This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.