State of Missouri, Respondent, v. Patrick Hibler, Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: State of Missouri, Respondent, v. Patrick Hibler, Appellant. Case Number: 53867 Handdown Date: 10/20/1998 Appeal From: Circuit Court of Jackson County, Hon. Vernon E. Scoville, III Counsel for Appellant: Tara Jensen Counsel for Respondent: Eva C. Sterner Opinion Summary: Boyfriend appeals judgment of circuit court convicting him of two counts of second degree assault on his girlfriend, contending the circuit court erred in its instructions to the jury. REVERSED AND REMANDED FOR A NEW TRIAL. Division One holds: Circuit court plainly erred when it submitted instructions to the jury that failed to hypothesize or define essential elements of second degree assault. Citation: Opinion Author: Paul M. Spinden, Presiding Judge Opinion Vote: REVERSED AND REMANDED FOR A NEW TRIAL. Ulrich and Smith, JJ., concur. Opinion: Patrick Hibler appeals the circuit court's judgment convicting him of two counts of assault in the second degree. He contends that the circuit court erred in its instructions to the jury. We reverse and remand for a new trial. The state charged Hibler in connection with arguments he had with Shauna Dryer on May 5 and 6, 1996. On May 5, while the couple argued, Hibler grabbed Dryer's throat and squeezed it for about 20 to 30 seconds. When Dryer began choking and coughing, Hibler released his hold, and the couple "made up." The next day, the couple argued again during

an automobile trip. Dryer was driving when Hibler hit her in the head with his key chain. On the key chain was a small, closed knife. Dryer slammed on the car's brakes and told Hibler to get out of the car. They both got out of the car and continued arguing. They got back into the car, but, while the car was parked, Hibler pushed Dryer out the driver's door. He moved to the driver's seat and drove the car away, but not before Dryer grabbed the driver's door. She held onto the moving car for five to ten feet before she fell and cut her elbow. During a jury trial on August 27, 1996, the circuit court used a verdict-directing instruction concerning second degree assault which Hibler had submitted. The circuit court refused Hibler's request that it instruct the jury concerning third degree assault. Instruction No. 7 said: As to Count I, if you do not find the defendant guilty of assault in the first degree . . ., you must consider whether he is guilty of assault in the second degree as submitted in this instruction. As to Count I, if you find and believe from the evidence beyond a reasonable doubt: That on May 5, 1996, County of Jackson, State of Missouri, the defendant knowingly caused physical injury to Shauna Dryer by choking her with his hands, then you will find the defendant guilty of assault in the second degree. However, unless you find and believe from the evidence beyond a reasonable doubt each and all these propositions, you must find the defendant not guilty of that offense under this instruction. Instruction No. 10 said: As to Count II, if you do not find the defendant guilty of assault in the first degree . . ., you must consider whether he is guilty of assault in the second degree as submitted in this instruction. As to Count II, if you find and believe from the evidence beyond a reasonable doubt: That on May 6, 1996, County of Jackson, State of Missouri, the defendant knowingly caused physical injury to Shauna Dryer by striking her in the head with a knife and dragging her from a moving car, then you will find the defendant guilty of assault in the second degree. However, unless you find and believe from the evidence beyond a reasonable doubt each and all these propositions, you must find the defendant not guilty of that offense under this instruction. The jury found Hibler guilty of second degree assault on both counts. In his first point on appeal, Hibler contends that the circuit court erred in submitting the verdict-directing instructions concerning second degree assault because the instructions did not hypothesize that "the assaults occurred with a dangerous instrument and further failed to define a dangerous instrument[.]" Hibler submitted the instruction. Under ordinary circumstances, Rule 28.03(FN1) would preclude his raising the issue on appeal. Hibler, however, asks us to review it as plain error pursuant to Rule 30.20. This rule authorizes us to consider errors which are "plain" if they affect substantial rights and if they result in "manifest injustice or miscarriage of justice." An error is plain if, on its face, we discern substantial grounds for believing that the error caused manifest injustice or a

miscarriage of justice. State v. Brown, 902 S.W.2d 278, 284 (Mo. banc), cert. denied, 516 U.S. 1031 (1995). The circuit court's instructions were plainly wrong because they did not hypothesize the essential elements of second degree assault as defined by the General Assembly in Section 565.060.1, RSMo 1994. Section 565.060.1 provides that a person commits the crime of assault in the second degree if he: (1) Attempts to kill or knowingly causes or attempts to cause serious physical injury to another person under the influence of sudden passion arising out of adequate cause; or (2) Attempts to cause or knowingly causes physical injury to another person by means of a deadly weapon or dangerous instrument; or (3) Recklessly causes serious physical injury to another person; or (4) While in an intoxicated condition or under the influence of controlled substances or drugs, operates a motor vehicle in this state and, when so operating, acts with criminal negligence to cause physical injury to any other person than himself; or (5) Recklessly causes physical injury to another person by means of discharge of a firearm. Instruction No. 7 hypothesized that Hibler "knowingly caused physical injury to Shauna Dryer by choking her with his hands[.]" This failed to hypothesize that Hibler "knowingly cause[d] . . . serious physical injury to [Dryer] under the influence of sudden passion arising out of adequate cause," as required by Section 565.060.1(1), or that Hibler "knowingly cause[d] . . . physical injury to [Dryer] by means of a deadly weapon or a dangerous instrument," as required by Section 565.060.1(2),(FN2) or that Hibler "recklessly cause[d] serious physical injury to [Dryer]," as required by Section 565.060.1(3).(FN3) Sections 565.060(4) and (5) were not applicable in any way to the May 5 choking incident. The effect of Instruction No. 7's failing to hypothesize essential elements was to lower the state's burden of proof by not requiring the state to prove every element of second degree assault. This was manifestly unjust and a miscarriage of justice. State v. Moriarty, 914 S.W.2d 416, 422 (Mo. App. 1996). We, therefore, exercise our discretion under Rule 30.20 to reverse the circuit court's judgment convicting Hibler of second degree assault under Count I and remand for a new trial. Instruction No. 10 hypothesized that Hibler "knowingly caused physical injury to Shauna Dryer by striking her in the head with a knife and dragging her from a moving car[.]" This failed to hypothesize that Hibler "knowingly cause[d] . . . serious physical injury to [Dryer] under the influence of sudden passion arising out of adequate cause," as required by Section 565.060.1(1), or that Hibler "recklessly cause[d] serious physical injury to [Dryer]," as required by Section 565.060.1(3).(FN4) Again, Sections 536.060.1(4) and (5) have no application to the May 6 incident. Arguably, the instruction hypothesized sufficient facts to articulate all the elements of Section 565.060.1(3); however, MAI-Cr 3d 319.12 required the circuit court to hypothesize in that case that Hibler knowingly caused physical

injury to Dryer by means of a deadly weapon or dangerous instrument by striking her in the head with a knife and dragging her from a moving car. The model instruction also required the circuit court to define "deadly weapon" and "dangerous instrument." Notes on Use No. 7(a). The instruction permitted the jury to return a verdict without finding that Hibler's key chain or car met the definition of deadly weapon or dangerous instrument, or that Hibler had used the instruments to cause physical injury to Dryer. Hence, Instruction No. 10 either failed to hypothesize essential elements or deviated from MAI-Cr 3d 319.12. This was manifestly unjust and a miscarriage of justice. State v. Doolittle, 896 S.W.2d 27, 30 (Mo. banc 1995). We, therefore, exercise our discretion under Rule 30.20 to reverse the circuit court's judgment convicting Hibler of second degree assault under Count II, and we remand for a new trial. The state asks us to declare from the evidence that Hibler was guilty of the lesser offense of third degree assault based on the evidence and to remand the case for resentencing only.(FN5) Because we are not convinced that a jury, properly instructed, would have found the evidence sufficient to find Hibler guilty of assault in the third degree, we reject its request. Footnotes: FN1.The rule says, "No party may assign as error the giving or failure to give instructions or verdict forms unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection." FN2.The state concedes that Hibler's use of his hands to choke Dryer could not constitute the use of a dangerous instrument. See Seiter v. State, 719 S.W.2d 141, 143-44 (Mo. App. 1986). FN3.The italicized words were omitted from the instruction. FN4.The italicized words were omitted from the instruction. FN5.In State v. O'Brien, 857 S.W.2d 212, 220 (banc 1993), the Supreme Court said, "Where a conviction of a greater offense has been overturned for insufficiency of the evidence, the reviewing court may enter a conviction for a lesser offense if the evidence was sufficient for the jury to find each of the elements and the jury was required to find those elements to enter the ill-fated conviction on the greater offense." Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.