State v. Johnson

685 S.W.3d 41

STATE of Missouri, Respondent,

v.Keith L. JOHNSON, Jr., Appellant.

No. ED 111484

Missouri Court of Appeals, Eastern District, DIVISION TWO.

FILED: February 20, 2024

Appeal from the Circuit Court of St. Charles County, Honorable Daniel G. Pelikan, Judge For Appellant: William J. Swift, 1000 W. Nifong Blvd., Bldg. 7, Ste. 100, Columbia, MO 65203.

For Respondent: Abigail M. Meharg, P.O. Box 899, Jefferson City, MO 65102.

MICHAEL E. GARDNER, Judge

Keith L. Johnson, Jr. appeals the judgment entered after a jury trial on his convictions for the class A felony of assault in the first degree and for the associated crime of armed criminal action. Both convictions were based on evidence that Johnson knowingly caused serious physical injury to the victim by shooting him in the forearm. According to Johnson, there was insufficient evidence that the victim actually sustained a "serious physical injury" as defined by section 556.061(44),¹ which is required to elevate the first-degree assault to a class A felony under section 565.050.2. We disagree and affirm the convictions. We must, however, vacate Johnson’s sentence on his armed criminal action conviction and remand for resentencing because the trial court plainly erred in imposing that sentence based on a mistaken belief as to the mandatory minimum term of imprisonment for that offense.

Factual and Procedural Background

Johnson shot the victim in the parking lot of a nightclub. The victim sustained two gunshot wounds, one to his right forearm and the other to his right hip. The injury to the victim’s hip was a graze wound, but his forearm wound was "through-and-through," meaning the bullet went through the victim’s arm. After the shooting, the victim ran into the nightclub, leaving a trail of blood from the parking lot to the inside of the building. According to the crime scene investigator, there was "a lot of blood" on the parking lot and the carpet inside the nightclub, and the victim’s pants were soaked with blood. When paramedics arrived, the victim was sitting on a stool outside the nightclub, and a police officer was holding a tourniquet in place around the victim’s forearm. The victim was alert and able to speak.

The arm wound was still actively bleeding as the paramedics started treating him in the ambulance. The paramedics removed the tourniquet, which was controlling the bleeding, although it had been improperly applied. They bandaged his forearm with gauze "to control the bleeding that was still happening." One of the paramedics testified at trial that the gunshot wound was a "significant injury" with "significant" bleeding and that "[a] person could die from an injury like this without medical intervention." The paramedic added that the wound itself could become infected and lead to death.

The victim’s vital signs were normal except for mild hypotension, which was cause for concern. The paramedic testified that "[o]nce blood pressure drops, it can cause the body not to get proper blood flow to the heart, to the brain, vital structures" and that "[i]f it drops far enough, it could potentially cause death." The paramedics treated the victim’s hypotension with intravenous fluid to increase his blood pressure. About ten minutes later, the victim’s blood pressure was still mildly hypotensive, but was improving.

Although there was a hospital in the same parking lot as the nightclub, the paramedics took the victim by ambulance to a hospital twenty minutes away because it had a trauma center and the victim had suffered a "traumatic injury." The paramedics did not turn on the lights or sirens of the ambulance on the way to the hospital because the victim’s vital signs were improving after their intervention. When they arrived at the hospital, the paramedics transferred the victim’s care to the doctors and nurses in the emergency room. There was no evidence presented about the victim’s condition after he arrived at the hospital.

The trial court gave the jury three alternative instructions regarding assault. The first instruction informed the jury that if it found Johnson knowingly caused "serious physical injury," then it was required to find him guilty of first-degree assault under that instruction. The second instruction told the jury that if it did not find Johnson guilty under the first instruction, and instead found that he only attempted to cause "serious physical injury," then it was required to find him guilty of first-degree assault under the second instruction. Finally, the third instruction provided that if the jury did not find Johnson guilty of first-degree assault under either of the first two instructions, and instead found that he caused only a "physical injury" to the victim, then it was required to find Johnson guilty of second-degree assault. "Serious physical injury" was defined in these instructions as it is in section 556.061(44): a physical injury that (1) "creates a substantial risk of death" or (2) "causes serious disfigurement" or (3) causes "protracted loss or impairment of the function of any part of the body." The jury found Johnson guilty of first-degree assault as laid out in the first instruction; it also found him guilty of the associated count of armed criminal action.

At sentencing, defense counsel presented evidence in an effort to convince the trial court to place Johnson on probation or, alternatively, to sentence him to the statutory minimum term of imprisonment. The State did not seek any specific sentence, asking the trial court to impose the punishment it thought was "fair." Johnson expressed remorse and apologized for his conduct while maintaining that he fired the shots in self-defense. He emphasized that he lawfully possessed the firearm he used the night of the shooting. Johnson pleaded with the trial court to not sentence him to prison and let him remain with his family. In response, the trial court stated:

[A]s much as I want to help you and your daughter and your family, my hands are tied. The most I can do for you is give you the minimum, the statutory minimum. There’s no opportunity for probation.

[….]

And I think you’re a good person, but I have to do what the law requires. There’s nothing I can do.

The record shows that defense counsel, the prosecutor and the trial court all believed that the applicable mandatory minimum sentence for armed criminal action in this case was five years. The trial court sentenced Johnson to ten years in prison for first-degree assault and a consecutive five years in prison for armed criminal action. The parties now agree that the applicable mandatory minimum sentence for armed criminal action for a defendant like Johnson—who lawfully possessed the weapon used in the underlying crime—is actually three years in prison. See section 571.015.1 RSMo (Cum. Supp. 2020).

Discussion

In his first and third points on appeal, Johnson challenges the sufficiency of the evidence that the victim sustained a "serious physical injury" as required to support his convictions for first-degree assault and armed criminal action based on that assault. Johnson’s second point contends the trial court plainly erred in imposing a five-year sentence for armed criminal action because it was based on the trial court’s mistaken belief as to the applicable mandatory minimum sentence for that offense.

Points I and III - Sufficiency of the Evidence

[1, 2] We review a sufficiency of the evidence challenge to determine whether there was evidence from which a reasonable juror could have found the defendant guilty beyond a reasonable doubt. State v. Madrigal, 652 S.W.3d 758, 766 (Mo. App. E.D. 2022). "We view the evidence and all reasonable inferences in the light most favorable to the verdict, disregarding any evidence and inferences contrary to the verdict." Id.

[3] To sustain Johnson’s conviction for the class A felony of first-degree assault, there must have been sufficient evidence that he inflicted "serious physical injury" on the victim. See section 565.050.2. As noted, a "serious physical injury" includes an injury that "creates a substantial risk of death." Section 556.061(44). Our courts have held that risk of death is something less than a probability or even a likelihood; it suggests circumstances that could give rise to life-threatening consequences. Madrigal, 652 S.W.3d at 768; State v. Kruger, 926 S.W.2d 486, 488 (Mo. App. E.D. 1996). The question is whether an injury raises a legitimate concern that it could cause death. Kruger, 926 S.W.2d at 488.

[4] Here, the...