State of Missouri, Respondent, vs. Jeffery Lumzy, Appellant.

STATE OF MISSOURI, ) No. ED112519 ) Respondent, ) Appeal from the Circuit Court ) of the City of St. Louis vs. ) Cause No. 2322-CR00472-01 ) JEFFERY LUMZY, ) Honorable Rex M. Burlison ) Appellant. ) FILED: May 6, 2025 Opinion Jeffery Lumzy (Lumzy) appeals from the trial court's judgment following a jury trial convicting him on murder in the first degree, armed criminal action, burglary in the first degree, unlawful possession of a firearm, and stealing of a motor vehicle. Lumzy raises four points on appeal. Points One and Two allege the trial court abused its discretion by admitting evidence of text messages allegedly sent by Lumzy to A.W. (Outgoing Texts) and received by Lumzy from D.P. (Incoming Text) (collectively, Text Messages) without proper foundation. 1 Point Three contends that the trial court abused its discretion by admitting evidence of Lumzy attempting to kidnap D.P. and her children for which he was not charged. Finally, in Point Four, Lumzy alleges that trial court plainly erred by providing the jury with the State's proffered first-degree burglary verdict director, in that the instruction contained the definition of assault from the civil

1 All names are redacted pursuant to § 509.520, RSMo (Cum. Supp. 2023).

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Adult Abuse Act, 2 rather than the criminal code's definition of assault, hence lowering the State's burden of proof. Because the State laid an adequate foundation for the admission of Text Messages, we deny Points One and Two. Because the kidnapping-related evidence was highly probative of the circumstances and sequence of events surrounding the charged conduct, we deny Point Three. Lastly, because the State's burden of proof for first-degree burglary was not lowered by the verdict director, which accurately tracked the Missouri Approved Instructions–Criminal (MAI- CR) 4th (2022), the trial court did not err plainly or otherwise in providing that instruction, thus we deny Point Four. Accordingly, we affirm the trial court's judgment. Background Viewed in the light most favorable to the verdict, 3 the evidence at trial showed: On or about December 29, 2022, Lumzy was living with his paramour A.W. and their three children in the same neighborhood as D.P., with whom Lumzy also had three children. That morning, D.P. sent Lumzy Incoming Text stating that she was "washing [her] hands of him" and would "rather deal with child support." D.P.'s friend, Victim, then came to visit D.P. at her apartment. While the two were conversing, Lumzy entered through the unlocked front door unannounced and uninvited. D.P. sternly ordered him to leave. Lumzy left the apartment but returned approximately ten minutes later at the back door, holding a black gun. He entered, flashed the gun at D.P., then shot Victim in the chest. D.P. then tried to call 911, but Lumzy took her phone from her. He ordered her to find clothes for the children and stated that they all would be leaving. While D.P. was getting the children ready, she testified that Lumzy got on his phone and called someone. At no point did Lumzy render any aid to Victim nor allow D.P. to do

2 § 455.010, et seq., RSMo (2016). 3 State v. Scott, 676 S.W.3d 336, 339 (Mo. App. E.D. 2023).

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so. Lumzy then took D.P.'s car key and took D.P. and the children across the parking lot to D.P.'s rental car. At this point, the apartment Maintenance Technician noticed D.P. calling for help and observed D.P. and her children crying, while Lumzy was smiling—an interaction which was captured on surveillance video. Maintenance Technician called 911 because it appeared to him that Lumzy was kidnapping the children. Maintenance Technician approached Lumzy asked what was going on, and D.P. again asked for help and stated that Lumzy had shot her friend. Maintenance Technician warned Lumzy that he would be calling the police. Lumzy then got into D.P.'s car and, with D.P.'s phone in his possession, drove off in the direction of A.W.'s residence. Evidence was adduced that Lumzy purportedly sent two Outgoing Texts to A.W., just thirty minutes prior to being confronted by Maintenance Technician in the parking lot. The Outgoing Texts stated: "I'm about to go to jail for a long time" and "Call me 911." After Lumzy left in D.P.'s vehicle, D.P., children, and Maintenance Technician returned to D.P.'s apartment, where emergency responders arrived on scene. After the shooting, Lumzy hid the firearm used to shoot Victim at the home of A.G., another paramour with whom he had two children. Surveillance video from a nearby intersection depicted Lumzy speeding westward in D.P.'s car toward A.G.'s residence. A.G. testified that Lumzy had stored two guns in her nightstand in late December 2022. In the top drawer of the nightstand was a Smith & Wesson 9 mm pistol as well as two magazines. In the bottom drawer of the nightstand was an SAR 9 mm semiautomatic pistol, a holster, and a 15- round magazine with 14 rounds in it. The chamber did not have a bullet. After disposing the guns, Lumzy abandoned D.P.'s vehicle in a parking lot. He fled to Chicago, where he remained until he was arrested approximately two months after the crimes.

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The State charged Lumzy as a prior and persistent offender with murder in the first degree, armed criminal action, burglary in the first degree, six counts of kidnapping in the second degree, unlawful possession of a firearm, and stealing of a motor vehicle without consent. Before trial, the State entered a memorandum of nolle prosequi dismissing the kidnapping charges. At trial, the State called D.P. to testify regarding the above facts. While on the stand, D.P. testified to having sent Incoming Text to Lumzy on the morning of the shooting about pursuing child support from him and breaking off contact with him. The State then called a homicide detective for the St. Louis Metropolitan Police Department (Detective), who testified about the investigation. While Detective was on the stand, the State offered into evidence both Outgoing Texts to prove Lumzy's guilty consciousness and Incoming Text to show that Lumzy was angry with D.P. on the day of the shooting. Detective testified that the Text Messages were extracted from a Cellebrite Report conducted on Lumzy's phone, which was recovered from D.P.'s apartment where Lumzy left it charging in the kitchen and was searched pursuant to a warrant. Lumzy separately objected to both Text Messages on foundation grounds, arguing the State had not proven authorship. Lumzy suggested someone else might have had the phone and sent the texts. With respect to Incoming Text, the State pointed out that D.P. had already testified that she texted Lumzy regarding child support and breaking off contact. The trial court overruled Lumzy's objections, reasoning that the State would be laying a proper foundation through additional evidence and that Lumzy's argument would go to the weight of the evidence accorded by the jury. The State proceeded to offer A.W.'s T -Mobile phone records and Lumzy's AT&T phone records into evidence to establish the ownership of both phone numbers involved with Outgoing Texts.

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The State also offered into evidence Exhibit 1 (911 Call), Exhibits 4, 4A, and 4B (Surveillance Footage), and Exhibit 5 (Still Image) (collectively, Kidnapping Evidence). Lumzy objected to 911 Call, wherein Maintenance Man reported Lumzy's perceived kidnapping conduct, arguing it was inadmissible evidence regarding bad acts for which he was not charged. The State countered that "the fact that the caller thought [Lumzy] was kidnapping the kids was part of his plan to evade detection for the murder." The trial court agreed with the State and overruled the objection. 911 Call was then played for the jury. Lumzy later sought a continuing objection to Surveillance Footage and Still Image, which also contained evidence relating to the kidnapping conduct. The State argued the evidence from Surveillance Footage and Still Image of Lumzy leaving the scene of the murder and stealing D.P.'s vehicle on his way to hide the guns at A.W.'s home was relevant to proving consciousness of guilt and flight. Lumzy countered that the portions of Surveillance Footage and Still Image depicting D.P. and the children should be removed because these, specifically, were more prejudicial than probative and were evidence of kidnapping, not evidence of murder or stealing. The trial court overruled all of Lumzy's objections to the Kidnapping Evidence, finding the challenged portions of Surveillance Footage and Still Image were close in time to the murder and gave a complete picture of the whole event. Lumzy testified in his own defense. He admitted he shot Victim but claimed he did so in self-defense. While on the stand, he also admitted to sending Outgoing Texts and receiving Incoming Text. The trial court held a jury instruction conference, during which Lumzy objected to the State's proffered verdict director for burglary in the first degree (Instruction No. 19), which modeled MAI-CR 423.52 and was accepted by the trial court. It read:

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INSTRUCTION NO. 19 As to Count III, if you find and believe from the evidence beyond a reasonable doubt: First, that on or about December 29, 2022, in the State of Missouri, the defendant knowingly remained unlawfully in an inhabitable structure located at [D.P.'s address] and possessed by [D.P.], and Second, that the defendant did so for the purpose of committing the offense of assault therein, and Third, that while the defendant was in the inhabitable structure he caused immediate physical injury to [decedent], and that [decedent] was not a participant in the offense, then you will find the defendant guilty under Count III of burglary in the first degree. A person commits the crime of assault when he or she purposefully or knowingly places or attempts to place another in fear of physical harm. However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense. As used in this instruction, a person acts knowingly, with respect to his conduct or to attendant circumstances when the person is aware of the nature of his or her conduct or that those circumstances exist, or with respect to a result of a person's conduct when he is aware that his or her conduct is practically certain to cause that result. A person "enters unlawfully or remains unlawfully" in or upon premises when he or she is not licensed or privileged to do so. A person who, regardless of his or her purpose, enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he or she defies a lawful order not to enter or remain personally communicated to him or her by the owner of such premises or by other authorized person. A license or privilege to enter or remain in a building which is only partly open to the public is not a license or privilege to enter or remain in that part of the building which is not open to the public. Lumzy's rejected instruction was identical except for including the word "immediate" in the paragraph that defined assault: "A person commits the crime of assault when he or she purposely or knowingly places or attempts to place another in fear of immediate physical harm." (Emphasis added). Lumzy conceded that Instruction No. 19 followed the MAI-CR, which uses the definition of assault from the civil domestic abuse stat