Where a defendant convicted of first-degree trespass and second-degree assault argued that the trial court erred by refusing to submit a jury instruction for the lesser-included offense of third-degree assault, the judgment is affirmed because the defendant shattered a glass bottle over the victim’s head so the evidence did not support an inference that the defendant recklessly caused the injury, and the court did not err in excluding evidence about the victim’s reputation for violence since the testimony was not relevant.
Dissenting opinion by Mooney, J.: “I find it difficult to know what thoughts pass through another’s mind. I certainly lack the State’s clairvoyance in appellate fact-finding and inference-drawing. Thus, I will assume that the State’s failure to adhere to the binding precedents of our Supreme Court is the result of mere recklessness….
“I conclude it was error to fail to submit the lesser-included offense of assault in the third degree. Thus, I would reverse the conviction for assault in the second degree. Further, because of this error with the predicate offense of felony assault, I would also reverse the accompanying conviction for armed criminal action. I would remand these counts for a new trial before a correctly-instructed jury.”
Judgment is affirmed.
State v. Randle (MLW No. 67016/Case No.ED99137 – 14 pages) (Missouri Court of Appeals, Eastern District, Ahrens, J.) Appealed from circuit court, St. Louis County, Cohen, J. (Srikant Chigurupati for appellant) (Shaun J. Mackelprang for respondent).
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