Following jury trial, Appellant was convicted of assault in the first degree and sentenced to twelve years in prison. He appeals from that conviction. Thereafter, Appellant filed a motion for postconviction relief, pursuant to former Rule 29.15. Following an evi-dentiary hearing, the motion was denied. Appellant appealed from the denial of his motion, and the appeals were consolidated. Rule 29.15a). 1
The charge resulted from an incident occurring on June 19,1994. On that afternoon, Cletus Counts, Jr. was helping Ami Hooper, the victim, move her belongings into a trailer. Appellant went inside and asked Counts to return $150.00 that Counts had previously borrowed. Counts said he did not have it, and an argument ensued between the two.
Appellant’s first point essentially has two arguments, contending that the trial court erred (1) by failing to instruct the jury on “sudden passion,” and, (2) by failing to include an instruction on second-degree assault. Both contentions are premised on the assertion that the evidence showed that Appellant was acting under sudden passion arising out of adequate cause. Thus, the question is whether there was sufficient evidence by which the jury could have found that Appellant acted under the influence of sudden passion arising out of adequate cause. These terms are defined in § 565.002, RSMo 1994, as follows:
“Adequate cause” means cause that would reasonably produce a degree of passion in a person of ordinary temperament sufficient to substantially impair an ordinary person’s capacity for self-control.
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“Sudden passion” means passion directly caused by and arising out of provocation by the victim or another acting with the victim which passion arises at the time of the offense and is not solely the result of former provocation.
Words alone, no matter how opprobrious or insulting, are not sufficient to show adequate provocation. State
v. Fears,
Section 565.060.1(1), RSMo 1994, provides that second-degree assault may occur if a person “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.” This is the basis on which Appellant contends second-degree assault should have been submitted, and, as there was no evidence of it, there was no error in not submitting assault in the second degree.
To reduce assault in the first degree to the second degree, there must be a sudden or unexpected encounter tending to excite passion beyond control.
State v. Huff,
There was no error in the failure to instruct as stated in Appellant’s first point. Point I is denied. As it is the only point directed to Appellant’s criminal conviction, that judgment is affirmed.
For his second point, movant states that the trial court erred in denying his postconviction relief motion because:
[T]he court failed to issue findings of fact and conclusions of law on any issues presented in that [movant] alleged that his lawyer was constitutionally ineffective by: failing to investigate, failing to adequately communicate with him, failing to obtain adequate clothing to wear at his trial, failing to call an expert witness to testify to the extent of [victim’s] injuries, failing to object to the prosecutor’s improper closing argument, and failing to prepare for trial.
Rule 29.15(i) (now 29.15(j)) states that “the court shall issue findings of fact and conclusions of law on all issues presented.” “There is no ambiguity in this directive and its requirements are not a mere formality.”
Burton v. State,
The judgment rendered in Appeal No. 20097 is affirmed. The order appealed from in Case No. 20688 is reversed, and the case is remanded to the trial court to comply with the mandate of previous Rule 29.15(i).
Notes
. As appellant was sentenced on February 14, 1995, and his postconviction motion was filed on June 7, 1995, Rule 29.15, then in effect, governs. Rule 29.15(m). The rule was amended effective January 1, 1996.