State of Missouri, Respondent, vs. Emonne W. Dillon, Appellant.

STATE OF MISSOURI, ) No. ED112946 ) Respondent, ) ) vs. ) ) EMONNE W. DILLON, ) ) Appellant. ) FILED: December 23, 2025

Appeal from the Circuit Court of St. Louis County, Cause No. 23SL-CR03538-01 The Honorable Dean P. Waldemer, Judge

Before: Michael S. Wright, Presiding Judge, Philip M. Hess, Judge, and Virginia W. Lay, Judge.

Introduction Emonne Dillon (Dillon) appeals from his convictions after a jury trial of second-degree murder, unlawful use of a weapon, and two counts of armed criminal action. Dillon raises three points on appeal: the trial court erred (1) by refusing to give Dillon's proffered non-MAI 1

instructions relating to imperfect self-defense, (2) by denying Dillon's motion to strike Juror 10 for cause, and (3) by admitting hearsay testimony into evidence. Finding no error, we affirm. On point one, the court properly refused Dillon's non-MAI instructions but gave the jury the MAI-CR instruction on involuntary manslaughter. Likewise,

1 Missouri Approved Instructions–Criminal (4th ed.).

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the court properly exercised its discretion in refusing to strike Juror 10 based on comments regarding Dillon's defense, the specifics of which the parties dispute. Lastly, we find no error in the court's decision to admit the statement by Dillon's girlfriend "Bae, get the gun" because it was not hearsay but was an explanation of Dillon's subsequent conduct. Factual and Procedural Background A petty dispute between two young women on Halls Ferry Road spiraled into a brawl involving at least seven people and finished with a fatal shooting. On May 2, 2023, Dillon drove his girlfriend L.R. and two other women to another woman's residence to settle a score. The three women exited the vehicle and began to fight three others—including Victim—resulting in three pairs squaring off to fight. Two of the three pairs stopped fighting, leaving L.R. clashing with her opponent. When Dillon tried to step in, L.R. yelled to him "Bae, get the gun" referring to the firearm in Dillon's pocket. At that point, Victim began approaching Dillon's location which was away from the front of the house on the driveway. Dillon brandished the gun to intimidate Victim (and others present) and ordered Victim to back up. Victim, undeterred, continued her approach while "yelling," "cussing," and "talking with her hands." Dillon shot Victim in the chest, killing her, and continued firing towards the house striking two other victims. Dillon then fled by car with his three original passengers. The State charged Dillon with first-degree murder, two counts of first-degree assault, unlawful use of a weapon for shooting at a habitable structure, and four counts of armed criminal action. On April 23, 2024, during voir dire, defense counsel told prospective jurors that Dillon shot Victim in self-defense. Sometime before the jury was sworn, Venireperson 50 overheard Juror 10 discussing the case. During a ten-minute recess right after the jury was sworn but not

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seated yet for opening statements, Venireperson 50 approached the bailiff and reported Juror 10's comments. The trial court questioned Venireperson 50 and Juror 10 outside the presence of the jury. Venireperson 50 told the court he overheard Juror 10 refer to self-defense as "double- talk" but was unsure exactly what he said. For his part, Juror 10 told the court he mentioned the defendant's age, and self-defense in general, but denied opining about the case. He conceded only that he may have expressed curiosity about the defense's use of the term self-defense. Juror 10 assured the court he would follow its instructions, had not and would not prejudge the case, and would remain open to all evidence. Defense counsel moved to strike for cause. The trial court, satisfied Juror 10 had not prejudged the case, denied the motion. At trial, in response to the State's question, a witness testified that L.R. said "Bae, get the gun." Dillon did not object at that time. Soon after, the witness repeated the statement and this time Dillon objected as hearsay which the trial court overruled as untimely. Dillon testified in his own defense. He claimed that Victim's "yelling," "cussing," and "talking with her hands" as she approached him "put a little fear in [him]." At the instruction conference, Dillon requested the trial court give a non-MAI instruction for second-degree murder including a paragraph on imperfect self-defense, along with a non- MAI definition of "recklessness" from State v. Beeler, 12 S.W.3d 294 (Mo. banc 2000). After reviewing Beeler, the trial court determined that the proper instruction was the MAI-CR instruction on involuntary manslaughter with a self-defense "tail," and refused Dillon's non-MAI alternative. The jury found Dillon guilty of second-degree murder, unlawful use of a weapon, and two counts of armed criminal action. The court entered judgment and sentenced Dillon to a total of 41 years in prison. This appeal follows.

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Discussion Point One – Jury Instruction In point one, Dillon argues the trial court erred in refusing to give proffered non-MAI instructions regarding "imperfect self-defense"—and using the Beeler definition of recklessness—thus preventing the jury from considering his theory of self-defense. We disagree. The trial court's submission of the mandatory MAI instructions for second-degree murder, MAI- CR 414.04, and involuntary manslaughter, MAI-CR 414.10, is not reversible error. A. Standard of Review We review a trial court's decision whether to give a requested jury instruction de novo. State v. Whitaker, 636 S.W.3d 569, 572 (Mo. banc 2022). Reversal is proper only when there is an erroneous failure to submit an instruction, and prejudice results. Id. B. Analysis "Imperfect self-defense" describes circumstances when a defendant "act[s] in an unreasonable belief that [his] conduct was necessary to save his own life." Beeler, 12. S.W.3d at

1. Contrary to Dillon's claim, this is not a special negative-defense,

2 but a traditional lesser- included crime: that of involuntary manslaughter in the first degree. Instruction on involuntary manslaughter is justified when "a jury could believe the defendant acted unreasonably in defending himself," but that he did not knowingly cause the victim's death or a have a purpose to do great harm to the victim. Id. at 300.

2 A special negative defense is one "(1) upon which the defendant does not carry the burden of proof, (2) supported by enough evidence arising during the whole case to raise a reasonable doubt of defendant's guilt, and (3) which presents a positive fact or set of circumstances, as distinguished from a bare denial or converse, which, if found, would negate one or more essential elements of an offense, or which would, if found, constitute a legal defense." State v. Jan., 176 S.W.3d 187, 197 (Mo. App. W.D. 2005).

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When evidence permits an inference of reckless conduct and the state or accused requests the instruction, the trial court is obligated to give a proper instruction on involuntary manslaughter. Id.; see Reed v. State, 649 S.W.3d 86, 91 n.4 (Mo. App. W.D. 2022) ("Asserting imperfect self-defense allows for a lesser-included offense instruction of involuntary manslaughter in a homicide trial."). Where a MAI-CR instruction is applicable, Rule 28.02(c) 3

requires it be used "to the exclusion of any other instruction or verdict form." State v. Lumzy, 713 S.W.3d 729, 745 (Mo. App. E.D. 2025) (quoting Rule 28.02(c)). "Compliant use of MAI- CR is the default rule, and adhering to it cannot constitute error." Id. Here, the trial court did not err by submitting the MAI-CR instruction on second-degree murder rather than one proffered by defense with the Beeler definition of "reckless." Submitting the MAI-CR instructions, 414.04 and 414.10, to the jury satisfied the obligation raised by evidence permitting an inference of imperfect self-defense. And use of a definition provided by the MAI-CR is, of course, compliant with the MAI-CR. Thus, that instruction could not have been error. Further, Dillon's conviction for second-degree murder renders immaterial the definition of "reckless" the jury heard and thus non-prejudicial because the verdict necessarily required the jury to find Dillon "knowingly" killed Victim, making consideration of involuntary manslaughter unnecessary. See section 565.021(1). Also, the "knowingly" mens rea required for second- degree murder automatically satisfies lower mens rea such as "recklessly." See section 562.021.4. 4 The definition of reckless is thus doubly immaterial to this case because (1) the jury's mens rea finding of knowledge renders irrelevant lesser-included offenses like involuntary

3 All rule references are to Missouri Supreme Court Rules (2024). 4 All section references are to RSMo (2016).

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manslaughter, and (2) knowledge suffices to establish mens rea for any offense requiring recklessness regardless of definition. Point one is denied. Point Two – Juror 10's Comments In point two, Dillon argues the trial court should have struck Juror 10 for cause. We disagree because the trial court properly exercised its discretion by questioning those involved and satisfied itself that Juror 10 had not pre-judged the case. A. Standard of Review A trial court's "ruling on a challenge for cause will not be disturbed on appeal unless it is clearly against the evidence and constitutes a clear abuse of discretion." State v. Emery, 701 S.W.3d 585, 598 (Mo. banc 2024) (internal quotation omitted). Such ruling "constitutes abuse of discretion when it is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." Id. at 598-99 (internal quotation omitted). Deference is appropriate because the trial court is better situated to assess the credibility and demeanor of jurors. State v. Wood, 580 S.W.3d 566, 580 (Mo. banc 2019). B. Analysis Turning to the incident where Juror 10 was allegedly overheard questioning the defense, we agree fully with the trial court's handling. The court questioned both Juror 10 and Venireperson 50 about the exchange and, not finding clear evidence of misconduct, sought assurances that Juror 10 had not prejudged the case, which were given. The trial court found Juror 10's assurances—that he had not prejudged the case, was capable of following the court's instructions, was not predisposed to discard a self-defense rationale, and would listen to all the evidence before reaching a decision—satisfactory. A

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showing no juror has been improperly influenced is sufficient to sustain the verdict. See Smith v. State, 711 S.W.3d 611, 618 (Mo. App. E.D. 2025). Given the trial court's careful consideration of the matter via inspection, no abuse of discretion is apparent. Point two is denied. Point Three – "Bae, get the gun" – Hearsay? In point three, Dillon seeks review of the trial court's denial of his hearsay objection to A.J.'s testimony that L.R. yelled "Bae, get the gun" to Dillon. Because Dillon's objection was untimely, we may only review for plain error. 5 We find no error, plain or otherwise. A. Standard of Review Plain error review is discretionary, and we will decline to review for plain error unless manifest injustice or a miscarriage of justice has resulted from trial court error. State v. Brandolese, 601 S.W.3d 519, 526 (Mo. banc 2020). Plain error review is a two-step process. First, we must determine "whether the claim of error facially establishes substantial grounds for believing that the manifest injustice or miscarriage of justice has resulted." State v. Baumruk, 280 S.W.3d 600, 607 (Mo. banc 2009) (internal quotation omitted). Not all prejudicial error is plain error, only those which "are evident, obvious and clear." Id. (internal quotation omitted). Then, if plain error is found, the court must determine whether the claimed error resulted in such manifest injustice or a miscarriage of justice. Id. at 607-08. Because trial courts have broad discretion in the admission or exclusion of evidence, this Court will not disturb a trial court's ruling on such matters absent clear abuse of discretion. State v. Mathews, 33 S.W.3d 658, 660 (Mo. App. S.D. 2000). "Additionally, this Court will only

5 Although Dillon did not request plain error review the error raised is unpreserved, so we address this point through that lens. We decline to conduct plain error review for the reasons below.

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reverse a trial court's decision when the erroneous admission of evidence is so prejudicial as to deprive a defendant of a fair trial." State v. Dallas, 713 S.W.3d 301, 304 (Mo. App. E.D. 2025). "An objection to testimony must be made at the earliest possible opportunity" to allow the trial court to remedy errors. State v. Roy, 597 S.W.3d 710, 729 (Mo. App. S.D. 2020) (quoting State v. Blurton, 484 S.W.3d 758, 774 (Mo. banc 2016)). Where, as here, testimony is introduced into evidence without initial objection, we may review only for plain error. Id. B. Analysis "Hearsay, defined as an out-of-court statement used to prove the truth of the matter asserted, is generally inadmissible at trial." Dallas, 713 S.W.3d at 304. An out-of-court statement not offered for its truth is not hearsay and is admissible even if it does not fall within a recognized exception to the hearsay rule. State v. Walker, 448 S.W.3d 861, 871 (Mo. App. E.D. 2014). "[S]tatements made by an out-of-court declarant that explain subsequent conduct are admissible as supplying relevant background and continuity." State v. Shoemaker, 448 S.W.3d 853, 860 (Mo. App. W.D. 2014) (internal quotation omitted). The statement "Bae, get the gun" could not have been offered to prove the truth of the matter asserted because it does not assert any truth at all; it is a request or command, admissible to explain Dillon subsequently discharging his gun. Because the statement falls outside the definition of hearsay, its admission is not error, let alone plain error. Dillon's claim of error does not "facially establish substantial grounds for believing that manifest injustice or miscarriage of justice has resulted." Brandolese, 601 S.W.3d at 526. Therefore, we decline to conduct plain error review. Point three is denied.

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Conclusion For the foregoing reasons, we affirm.

_________________________ Virginia W. Lay, J.

Michael S. Wright, P.J., concurs. Philip M. Hess, J., concurs.