State v. Smith, 2012 Mo. App. LEXIS 673

Smith was convicted of multiple offenses including aggravated stalking, four counts of violating a protective order, and domestic assault, while forcible rape was not proven beyond a reasonable doubt.
J.K. testified she and Smith had a volatile relationship and that Smith raped and strangled her on December 26, 2009; police initially did not observe injuries.
A full order of protection against Smith was entered on January 6, 2010 prohibiting contact in any form.
Smith performed acts toward J.K. in January 2010 (washing car, leaving notes/cards, appearing near her home) that overlapped with the protected conduct.
The jury found Smith not guilty of forcible rape but guilty of aggravated stalking, and Counts III–VI of violating the protection order; sentencing totaled 18 years.
The appellate court vacated certain counts and affirmed others, addressing double jeopardy, instructional error on Count IV, and a mistrial issue.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Double jeopardy for order violation and aggravated stalking	Smith argues Counts III, V, VI duplicate aggravated stalking.	State argues separate offenses can co-exist unless one includes the other.	Counts III, V, VI vacated; aggravated stalking affirmed.
Jury instruction on Count IV	Instruction deviated from MAI-CR3d 332.52, plain error.	No objection preserved; plain error review applied.	Count IV conviction vacated due to plain error.
Mistrial denial after prior bad act testimony	J.K.’s prior slap allegation should have prompted mistrial.	Court properly instructed to disregard; mistrial unnecessary.	Mistrial denial affirmed; remaining convictions intact for Counts II and VII.

State v. Neher, 213 S.W.3d 44 (Mo. banc 2007) (double jeopardy analysis for facially reviewable claims)
State v. Stewart, 343 S.W.3d 373 (Mo.App.S.D. 2011) (plain error framework for double jeopardy and other errors)
State v. Edberg, 185 S.W.3d 290 (Mo.App.S.D. 2006) (plain error review foundations)
State v. Derenzy, 89 S.W.3d 472 (Mo. banc 2002) (definition of lesser-included offenses)
State v. Burns, 877 S.W.2d 111 (Mo. banc 1994) (same-elements test for overlap; Blockburger framework)
State v. Reando, 313 S.W.3d 734 (Mo.App. W.D. 2010) (applying elements test to protected offenses)
State v. Beck, 167 S.W.3d 767 (Mo.App. W.D. 2005) (plain-error standard in instructional-error cases)
State v. Primm, 347 S.W.3d 66 (Mo. banc 2011) (inadmissible prior-bad-act evidence governing)
State v. Taylor, 298 S.W.3d 482 (Mo. banc 2009) (discretion in denying mistrial; extraordinary circumstances)
State v. Bowler, 892 S.W.2d 717 (Mo.App.E.D. 1994) (trial court’s mistrial discretion standards)
State v. Norris, 237 S.W.3d 640 (Mo.App.S.D. 2007) (prejudice standard in mistrial determination)