Chаd A. Spry (“Appellant”) appeals his conviction for one count of the Class A felony of assault in the first degree, a violation of section 565.050, and one count of the Class A felony of robbery in the first degree, a violation of section 569.020. 1 Following a jury trial, Appellant was sentenced by the trial court to fifteen years in the Missouri Department of Corrections on each count. In his sole point relied on, Appellant asserts the trial court erred in instructing the jury as to the definition of “serious physical injury.”
Appellant does not challenge the sufficiency of the evidence to support his conviction. “Viewing the evidence in the light most favorable to the jury’s verdict,”
State v. Fry,
When deputies interviewed Appellant at his home, he denied knowing Victim but admitted he had a party at his house the previous evening. Deputies also interviewed a woman who was at the party and she “indicated that there had been an altercation with [Victim and Appellant] the night before and that she had attempted to call 911 and that she was not allowed to” do so by Appellant. Appellant was then advised of his Miranda 2 rights and arrested.
I was involved in an assault on [Victim] over the weekend. I attempted to plan to take his money. He had $150.00. I punched him about five times then I proceeded to hold him down while [Mr. Smith] and Denver [Firgens (“Mr. Fir-gens”) ] grabbed his money.
The [Victim’s] belongings were still at my house when the Sheriffs arrived.... [Mr. Smith] helpеd me put the guy in the trunk. Then him and [Mr. Firgens] dropped him off. When they came back [Mr. Smith] mentioned he had hit him with a cue ball. I didn’t realize that [Mr. Firgens] had no money so I yelled at both of them and said: Let’s go back. So we all went back to try and find the money. [Mr. Smith] said: I think he’s dead. I then went and heard that he was still breathing. We did not find[] money so we went back to my house. I threw my shirt out and my shоes in the dumpster. I also cleaned my truck and I believe [Mr. Smith] may have took the missing guitar and backpack. I made $20.00 that I found on the ground. The wallet with no money was also thrown in the dumpster.[ 3 ]
Thereafter, while Appellant was incarcerated, he gave a note to the jail personnel in which he requested to speak with the detectivеs investigating his case. The note was delivered to Detective Lori Peck (“Detective Peck”), who spoke with Appellant on November 6, 2006. After again advising Appellant of his Miranda rights, Detective Peck interviewed Appellant about the incident involving Victim. Appellant related to Detective Peck that what happened to Victim was “a party jump” which he planned with Mr. Tandy, Mr. Smith, and Mr. Firgens. Appellant admitted he had used a “cue ball in a Crown Royal bag” to assault Victim. Detective Peck testified that Appellant related “[t]he cue ball was put into the Crown Royal bag and they put [the bag] strings over their wrists to hang on to the bag” and then they would all hit Victim with it. Appellant related that when they returned to where they dumped Victim and discovered Victim was still alive, “Mr. Smith attempted to finish him off by snapping his neck but he wasn’t strong enough and so he just got up and stomped his head.”
Victim testified that he went to a party at Appellant’s house the night before the incident in question. Victim testified people at the party were playing guitar, drinking alcohol and socializing for most of the evening. He related he remembered that at some point Mr. Smith suggested they go for a walk and he recalled walking out the front door, but he did not remember anything else until he woke up the next morning “spitting up blood” on Newman Road.
Further, Victim testified that he suffered severe injuries to his face and continues tо have problems with his sinuses and scarring. He is unable to work and suffers from social anxiety due to his injuries.
Tamera Hartzoc, a nurse who treated Victim upon his arrival at the hospital, testified Victim had “blood covering most of his face;” “massive amount[s] of swelling to his face” such that he was unrecognizable; “[m]ultiple lacerations and abrasiоns to his head;” “spots on his head that looked like there were just chunks of tissue and flesh missing;” “multiple lacerations and abrasions to his back and down both sides of his abdomen;” both his eyes were completely swollen shut and matted with blood; and he had bruising on his
Prior to closing arguments the trial court read Jury Instruction Numbers 3 to 15 to the jury. Included in those instructions was Jury Instruction No. 5, which was “the State’s verdict director with accessory liability for Count One for the crime of assault in the first degree.” Jury Instruction No. 5, was patterned оff of MAI-CR 3d 319.02 (9-1-02) and 304.04 (9-1-03); however, MAI-CR 3d 319.02 (9-1-02) provides for an additional paragraph, defining “serious physical injury,” which was not included in Jury Instruction No. 5. The omitted paragraph provides the following: “[a]s used in this instruction the term ‘serious physical injury’ means physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body.” MAI-CR 3d 319.02 (9-1-02).
Likewise, Jury Instruction No. 8, the State’s verdict director for the crime of robbery in the first degree was also read to the jury at that time. Patterned after MAI-CR 3d 323.02 (9-1-03) and 304.04 (9-1-03), Jury Instruction No. 8 also omitted a required paragraph. The omitted paragraph provides the following: “[a]s used in this instruction the term ‘serious physical injury’ means physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body.” MAI-CR 3d 323.02 (9-1-03). Note on Use 3 for MAI-CR 3d 323.02 (9-1-03) requires that when the term “serious physical injury” is used “the paragraph defining that term must be used....” 4
At the end of closing arguments, the trial court made thе following announcement to the jury:
Ladies and gentlemen of the jury, the Court made an error in [Jury Instruction No. 5], which I read to you earlier, in that that instruction should have had in it a definition of the term serious physical injury. That term is defined elsewhere in the instructions but should have also been defined in [Jury Instruction No. 5].
I want to read to you now what the Court has labelеd as [Jury Instruction No. 5-A]: As used in [Jury Instruction No. 5-A], the term serious physical injury means physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss of impairment of the function of any part of the body.
The following exchange was then held outside the presence of the jury:
I want to make a record before everybody leaves.
While the Court was reading the instructiоns specifically, [Jury Instruction No. 7] submitted by [Appellant] as the lesser included instruction I noticed the term of serious physical injury was defined. In looking at the book it should have been defined in [Jury InstructionNo. 5], So, while the closing arguments were being delivered the Court came up with an instruction that I’ve titled [Jury Instruction No. 5-A] which defines serious physical injury. Whether that will рass muster or not, I don’t know.[ 5 ]
Saliently, no objection was made by Appellant’s counsel to the reading of any of the instructions to the jury prior to closing arguments or following the trial court’s remarks relating to Jury Instruction No. 5-A.
At the close of all the evidence, Appellant was convicted of the crimes charged and was sentenced as previously set out. This appeal followed.
In his sole point relied on Appellant maintains the trial court erred in failing “to properly instruct the jury before closing arguments as to the definition of ‘serious physical injury’ as used in both [Jury Instruction No. 5], the verdict director on first degree assault, and [Jury Instruction No. 8], the verdict director for first degree robbery.” He asserts “his rights to due process and a fair trial ...” were violated
in that both parties argued to the jury that [Jury Instruction No. 5] and [Jury Instruction No. 8], as previously given to the jury, were the law the jurors were to follow in reaching their verdicts and the court’s post closing argument instruction that supplemented only [Jury Instruction No. 5] with [Jury Instruction No. 5-A] defining ‘serious physical injury1 only served to confuse the jurors because the court told the jurors that the definition of ‘serious physical injury’ applied only to [Jury Instruction No. 5] and not also to [Jury Instruction No. 8] and further [Appellant] was entitled to have the jurors contemporaneously consider the closing arguments after having been correctly instructed.
As previously related, we observe at the outset there was no objection to the instructions at any time during trial. Further, in his “Motion for Judgment of Acquittal or in the Alternative For a New Trial,” Appellant asserted “[t]he trial court erred in correcting [Jury Instruction No. 5] ... by creating [Jury Instruction No. 5-A] defining serious physical injury and not allowing defense counsel an opportunity to object or review the proposed addition to the instruction before it was submitted to the jury.” This is not the issue raised before this Court. Furthermore, Appellant did not set out in his motion for new trial any alleged error as it relates to Jury Instruction No. 8, which he also now urges on appeal.
Under Rule 28.03, 6
[c]ounsel shall make specific objections to instructions or verdict forms considered erroneous. 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.... The objections must also be raised in the motion for new trial in аccordance with Rule 29.11.
Rule 29.11(d) requires that “allegations of [instructional] error to be preserved for appellate review must be included in a motion for new trial.... ”
See State v. Hefflinger,
Plain error review under Rule 30.20 is used sparingly and is limited to those cases where there is a strong, clear demonstration of manifest injustice or miscarriage of justice.
State v. Ballard,
‘“Review of jury instructions for plain error is discretionary.’ ”
State v. Skipper,
Instructional error seldom rises to the level of plain error. To show that the trial court plainly erred in submitting a jury instruction, a defendant must go beyond a demonstration of mere prejudice. In the context of instructional error, plain error results when the trial court has so misdirected or failed to instruct the jury that it is apparent to the appellate court that the instructional error affected the jury’s verdict, and caused manifest injustice or miscarriage of justice. The defendant bears the burden of showing that plain error has occurred which resulted in manifest injustice or a miscarriage of justice.
State v. Hibler,
In the present matter, the omission of the definition of “serious physical injury” in the verdict directors for assault in the first degree and robbery in the first degree is presumеd to be prejudicial error because the MAI-CR 3d and/or the Notes on Use required a definition and none was given by the trial court.
See
MAI-CR 3d 319.02 (9-1-02) and MAI-CR 3d 323.02 (9-1-03);
State v. Thomas,
Here, the trial court had, prior to closing arguments, instructed the jury in Jury Instruction No. 7, the verdict director for the lesser-included offense of assault in the second degree, MAI-CR 3d 319.12 (9 — 1— 02), as to the definition of “serious physical injury.” Acсordingly, when viewing the instructions as a whole, the omissions of a definition of “serious physical injury” in Jury Instructions No. 5 and No. 8 did not rise to the level of plain error requiring reversal, because the jury had been instructed as to the proper definition of “serious physical injury” in a different instruction. San
dles,
Additionally, the trial court remedied its omission, in part, by orally giving the jury Jury Instruction No. 5-A which specifically set out the definition of “serious physical injury.”
We disagree with Appellant’s arguments that he was prejudiced because both the State and his counsel “highlight[ed]” the importance of Jury Instructions No. 5 and No. 8, such that “[t]he jury may very well have been adversely influenced by the error[s],” and that Jury Instruction No. 5-A “exacerbatеd” the jury’s confusion. “This speculative argument disregards that the jury was fully and appropriately instructed” based on the totality of the instructions given to it and “Missouri courts properly refuse to find instructions preju-dicially erroneous if the alleged errors are ‘no more than speculation.’ ”
Sandles,
Here, Appellant has not shown that plain error has occurred resulting in manifest injustice or a miscarriage of justice.
Hibler,
Lastly, in our review of the record in this case, it has come to our attention that the trial court’s “Judgment” states this matter was disposed of by “Guilty Plea” on October 1, 2007, as opposed to being disposed of by jury verdict. It is apparent that the “failure to memorialize acсurately the decision of the trial court [and jury] as it was announced in open court [and demonstrated by the record] was clearly a clerical error.”
State v. Taylor,
Notes
. All statutory references are to RSMo' 2000.
.
See Miranda v. Arizona,
. The actual statement made by Appellant was not included in the record on appeal. We have taken this рortion from the transcript.
. While the term "serious physical injury” was not defined at that time in either Jury Instruction No. 5 or No. 8, it was defined in Jury Instruction No. 7, the verdict director for the lesser-included offense of assault in the second degree, MAI-CR 3d 319.12 (9-1-01), which was also read to the jury.
. The trial court made no reference to the fact that Jury Instruction No. 8 also lacked the definition of "serious physical injury.”
. All Rule references are to Missouri Court Rules (2007).