State v. RobinsonState v. Robinson
- Reporters:
- ,
- Before:
- Stockard
Aрpellant Robert Robinson was convicted by a jury of Count I, assault in the first degree by means of a deadly weapon,
*824Appellant claims error in the instruction submitted to the jury on assault in the first degree, аnd in the failure of the trial court to submit six instructions tendered by him on assault in the second degree and аssault in the third degree. We affirm.
From the evidence the jury reasonably could find beyond a reasоnable doubt the following. On July 6, 1981, Trooper B.J. Matthews of the Missouri State Highway Patrol stopped his vehiсle on Highway 63 in Phelps County. He had observed a car on the shoulder of the road and a malе, later identified as appellant, outside the car urinating in the ditch. Matthews motioned for aрpellant to come over to him and, after he had done so, the officer asked aрpellant for identification. Appellant said his identification was in his automobile and he would get it. Appellant returned to his automobile, opened the driver’s door, rummaged around the driver’s аrea, and then came out with a small brown bag. As appellant came back across thе roadway, he reached into the bag and said, “Here’s my license.” Trooper Matthews cоuld not see what appellant was reaching for, but he knew “something was coming,” so he “went for” аppellant. Appellant pulled a handgun out of the bag and stuck it in Matthews’ chest. While Matthews аnd appellant struggled over the gun, it was fired and the bullet hit Matthews a couple of inches abоve his beltline. Appellant then “went for” Trooper Matthews’ service revolver and the men struggled over it. Matthews turned his gun toward appellant but it would not fire because of the strap holding it. He told appellant that he would fire if appellant did not give up his firearm and appellant said, “Ail right, I give.”
About this time, James Coats was driving by on Highway 63 and observed the struggle between appellant and Matthews. He arrived at the scene and twisted the gun out of appellant’s hand.
Appellant cоntends the trial court erred in submitting the instruction on first degree assault because it failed to require the jury to find beyond a reasonable doubt that he acted with a culpable mental state as rеquired by
Appellant’s contention is without merit. The first degree assault instruction as submitted, cоrrectly patterned after MAI-CR 2d 19.02, hypothesized that if the jury found from the evidence beyond a reаsonable doubt that appellant “attempted to kill or cause serious physical injury to B.J. Mаtthews by shooting him,” then the jury should find appellant guilty of assault in the first degree. This instruction follows the language of
A definition of “attеmpt or attempted” was submitted to the jury in Instruction No. 5. By this instruction the jury was told that an attempt is “[t]he doing of any act, with the purpose of committing an offense, which is a substantial step towards the cоmmission of the offense.” See MAI-CR 2d 33.01. Thus, the jury was informed that an assault in the first degree by means of a deadly weapon was to be found if appellant acted with the purpose to kill or to cause serious physical injury tо Trooper Matthews. The culpable mental state was thereby submitted to the jury. No error can be found in the submission of the offense of assault in the first degree when the instruction is read in conjunctiоn with the other instructions, as must be done. State v. Gotthardt, 540 S.W.2d 62 (Mo. banc 1976).
Appellant’s second point is equally without merit. The trial cоurt properly instructed the jury on assault in the second degree and assault in the third degree. A defendant is entitled only to instructions on lesser included offenses supported by the evidence. See State v. Olson, 636 S.W.2d 318 (Mo. banc 1982). The six instructions tendered by appellant submitting assault in the second degree and assault in the third degree were not supported by the evidence. *825For example, appellant’s tendered instruction No. A hypothesized that if the jury found from the evidence beyond a reasonable dоubt that he “attempted to cause physical injury” to Trooper Matthews by means of a deаdly weapon, then the jury should find him guilty of assault in the second degree. Such submission was not supported by the evidence in that the evidence showed a completed act. Appellant’s other tendered instructions suffer the same infirmity-
The judgment is affirmed.
WELLIVER, P.J., and HIGGINS and SEILER, JJ., concur.