State v. Marley

598 S.W.3d 204

STATE of Missouri, Respondent,

v.Damon D. MARLEY, Appellant.

WD 82665

Missouri Court of Appeals, Western District.

Opinion filed: April 21, 2020

Justin A. Moody, for Respondent.

Jeannie M. Willibey, for Appellant.

Division Three: Anthony Rex Gabbert, Presiding Judge, Edward R. Ardini, Jr., Judge and W. Douglas Thomson, Judge

EDWARD R. ARDINI, JR., JUDGE

Damon Marley ("Marley") appeals his conviction for domestic assault in the second degree entered by the Circuit Court of Jackson County following a jury trial. We affirm.

Factual and Procedural Background

B.P.¹ and Marley first met and began a relationship when they were teenagers. The relationship lasted a year, after which they went their separate ways. During this period apart, B.P. had a daughter, A.M. In 2012, B.P. and Marley reunited, and in 2014, they married.

In 2017, B.P. told Marley that she wanted to end their relationship. Marley was upset, and he threatened B.P. with messages like, "if he couldn't be with [B.P.], no one could."

On October 26, 2017, B.P. offered Marley a ride from the St. Louis area to Kansas City and permitted him to stay the night at her residence. The following day, B.P. allowed Marley use of her vehicle and her daughter’s cell phone. While using the cell phone, Marley saw a photo of B.P. with A.M.’s father causing Marley to question A.M. about B.P.’s relationship with A.M.’s father. A.M. deflected the inquiry and suggested she and Marley pick B.P. up from work, which they did. Upon returning home, Marley aggressively questioned B.P. about her relationship with A.M.’s father and accused her of cheating on him.

As the argument escalated, B.P. and her daughter went outside. A.M. got into B.P.’s car. As B.P. walked around the rear of the vehicle, Marley began choking her until she passed out.

A.M. exited the vehicle and shook B.P. in an effort to wake her up. Upon regaining consciousness, B.P. and A.M. flagged down a passing vehicle. The driver of the vehicle called 911 and handed the phone to B.P. After completing the call, B.P. returned the phone to the driver and began to move towards her property. B.P. fell, and Marley dragged her to the side of her house where he began choking her again. Marley fled the scene when a neighbor emerged nearby.

B.P. and A.M. drove to the nearby home of A.M.’s father before returning to meet responding law enforcement officers. B.P. experienced a sore throat, headache, and dizziness from the attack but declined medical treatment.

Marley was later arrested and charged, as a prior and persistent offender, with the class D felony of domestic assault in the second degree. Following a jury trial, Marley was found guilty and sentenced to a term of six and a half years in the department of corrections. Marley appeals his conviction. Additional facts are provided throughout this opinion.

Discussion

Marley raises four points on appeal. In his first point, he alleges that there was insufficient evidence that B.P. suffered a physical injury to support his conviction. Both Points II and III assert the trial court committed plain error relating to the verdict directing instruction. In Point II, Marley complains that the verdict director omitted an element and, in Point III, that the verdict director failed to follow the applicable approved jury instruction. In his fourth point, Marley alleges that the trial court abused its discretion in overruling his motion for mistrial after B.P. stated during her trial testimony that she knew Marley had "just got out," arguing this was a clear reference to Marley having been in prison. We affirm.

Point I – Sufficiency of the Evidence

In Point I, Marley argues that the State failed to present evidence that he caused physical injury to B.P. sufficient to support his conviction for domestic assault in the second degree.

Standard of Review

" ‘When considering the sufficiency of the evidence on appeal, this Court must determine whether sufficient evidence permits a reasonable juror to find guilt beyond a reasonable doubt.’ " State v. Stewart , 560 S.W.3d 531, 533 (Mo. banc 2018) (quoting State v. Wright , 382 S.W.3d 902, 903 (Mo. banc 2012) ). We view the evidence and all reasonable inferences in the light most favorable to the jury’s verdict, and we disregard all evidence and inferences to the contrary. Id. " ‘This is not an assessment of whether the Court believes that the evidence at trial established guilt beyond a reasonable doubt but rather a question of whether, in light of the evidence most favorable to the State, any rational fact-finder could have found the essential elements of the crime beyond a reasonable doubt.’ " Id. (quoting Wright , 382 S.W.3d at 903 ).

Analysis

"A person commits the offense of domestic assault in the second degree if" he "[k]knowingly causes physical injury to [a] domestic victim by any means, including but not limited to, ... choking or strangulation[.]" § 565.073.1(1), RSMo. "Physical injury" is defined as the "slight impairment of any function of the body or temporary loss of use of any part of the body[.]" § 556.061(36), RSMo. The statute " ‘does not require that physical injury be substantial, merely that it be present.’ " State v. Rodgers , 557 S.W.3d 494, 498 (Mo. App. S.D. 2018) (quoting State v. Barnes , 980 S.W.2d 314, 319 (Mo. App. W.D. 1998) ). Marley complains that the State’s evidence was insufficient to support a finding that B.P. sustained a physical injury. We disagree and find that the evidence in the light most favorable to the jury’s verdict established that B.P. lost consciousness from being choked by Marley during the attack and that such evidence constituted a physical injury as that term is defined under the statute.

No courts have yet interpreted the language in the current definition of "physical injury." Thus, Marley focuses his argument on distinguishing cases that found sufficient evidence for physical injury before the statutory definition changed in 2017, arguing that the current definition is more restrictive and no longer includes physical pain.² This argument is not persuasive. Indeed, as it relates to the facts of this case, we discern no relevant difference between the current and previous definition of "physical injury." Both definitions encompass an "impairment" sustained by a victim and, while each definition uses slightly different phraseology, in this regard, it is beyond reasonable debate that restricting an individual’s ability to breathe causing unconsciousness satisfies both definitions. As such, cases finding a physical injury under the previous statute with facts similar to those present in this case remain relevant to our analysis.

For example, in Barnes , this Court found there was sufficient evidence that an "impairment of her physical condition" was sustained by the victim when she was choked by the defendant to the point that she "almost fainted" and could not breathe. 980 S.W.2d at 319. Similarly, in Rodgers , the Southern District, relying on Barnes , found a defendant caused physical injury to the victim when he "grabbed a pillow[ ] and forced it down over her face, fully covering [the v]ictim’s mouth and nose." 557 S.W.3d at 497. Under both Barnes and Rodgers , a defendant’s conduct that inhibited a victim’s ability to breathe was found to be an "impairment of physical condition" sufficient to constitute a "physical injury" under the previous definition. We similarly conclude that the act of breathing is a "function of the body" under the current definition and that an individual who has had her ability to breathe restricted through the act of choking at the hand of another has suffered, at a minimum, a "slight impairment of a[ ] function of the body" to satisfy the present definition of "physical injury."

The evidence presented at trial established that Marley strangled B.P., impairing her ability to breathe and causing her to become unconscious. This evidence was sufficient for a reasonable juror to conclude that B.P. suffered a physical injury as that term is defined in section 556.061(36), RSMo.

Point I denied.

Points II and III – Verdict-directing Instruction

In his second and third points, Marley complains that the trial court plainly erred in submitting the verdict directing instruction to the jury. Specifically, in Point II, Marley alleges that the verdict director omitted an element and, in Point III, he argues that the verdict director deviated from the approved pattern instruction and, in so doing, did not require the jury to unanimously agree to its verdict.

The verdict director offered by the State and submitted to the jury stated:

INSTRUCTION NO. 6

If you find and believe from the evidence beyond a reasonable doubt:

First, that on or about October 26, 2017, in the State of Missouri, the defendant knowingly caused physical injury to B.P. by strangling B.P., and

Second, that B.P. and defendant were persons who were or had been in a continuing social relationship of a romantic or intimate nature,

then you will find the defendant guilty of domestic assault in the second degree.

However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.

As used in this instruction, the term "physical injury" means slight impairment of any function of the body or temporary loss of use of any part of the body.

At the instructions conference, Marley’s counsel affirmatively stated "[n]o objection" to any of the instructions.³

Standard of Review

In both Points II and III, Marley alleges unpreserved instructional error. "An unpreserved claim of error can be reviewed only for plain error[.]" State v. Davis , 564 S.W.3d 649, 656 (Mo. App. W.D. 2018) (additional citation and quotation omitted). Plain error review requires a two-step inquiry. State v. Adams , 571 S.W.3d 140, 144 (Mo. App. W.D. 2018) (additional citations omitted). "First, we must determine whether the claimed error is ‘plain error affecting...