State v. Johnson

841 S.W.2d 298, 1992 Mo. App. LEXIS 1711, 1992 WL 329049
Missouri Court of Appeals·Decided November 13, 1992·No. Nos. 16925, 17903·Published·Cited by 4 cases

Opinion

SHRUM, Judge.

The defendant Ricky N. Johnson was found guilty by a jury of attempted forcible rape and sentenced by the court as a prior offender to a term of 20 years’ imprisonment. In case No. 16925, Johnson appeals from the judgment and sentence.

As the single point in his direct appeal, Johnson argues that the trial court erred in denying his request that the jury be given a class A misdemeanor third-degree assault instruction as a lesser included offense of the attempted rape charge. We reject this claim and affirm the judgment.

Johnson sought postconviction relief, pursuant to Rule 29.15, claiming ineffective assistance of counsel. Following an evi-dentiary hearing, the motion court denied relief. Johnson appeals from that judgment in case No. 17903.

Johnson’s single point on appeal in No. 17903 is that the motion court was clearly erroneous in its conclusion that no prejudice resulted from his trial counsel’s direct examination question about his prior “trouble ... with the law,” a question that en[299]*299abled the state to then cross-examine Johnson about his prior arrests. We likewise reject this claim of error and affirm the judgment.

Case No. 16925

FACTS

Johnson does not challenge the sufficiency of the evidence to convict him. On April 14, 1989, Johnson asked the 20-year-old female victim to go into his home to get his wife’s makeup bag. After the victim entered the house, Johnson followed. Johnson asked the victim to stay and he put his arm around her. She replied, “No,” and stated she would walk home. Thereupon, Johnson, who weighed 215 pounds, picked up the victim, threw her face-down on the floor in a narrow space between a bed and a wall, and got on top of her. He stuck his hand up the front of her sweater. During this time he continued to tell the victim, “I’m going to f_you.”

The victim could not scream because of Johnson’s weight on top of her. Johnson momentarily let her up but “[t]hen he got [her] on the bed.” At that point she began screaming and Johnson began punching her in the face, mouth, and head with his fists. He hit her about ten times. He told her that he was going to f_ her, that no one would care, and that he would kill her because she would not shut up. As she was being hit by Johnson, he pulled her pullover sweater over her head and ripped her bra. He also tore the zipper on her blue jeans as he tried to remove them.

The victim was finally able to escape and run out the back door. Johnson followed her, but she ran to the house of neighbors who provided first aid and called law enforcement officials. Upon investigation, blood was found on the victim’s bra and jeans. The neighbors testified that the victim was covered with blood and that she had told them she had been beaten and almost raped. The victim was treated at a hospital where 22 stitches were required to close the wounds on her face and lips.

In addition to the attempted forcible rape charge, Johnson was charged with second-degree assault, a class C felony, § 565.060, RSMo 1986. Prior to trial, the second-degree assault charge was dismissed at the request of the state.

Johnson testified and admitted beating the victim. He said that when he struck her he was no longer sexually aroused but that he was “frustrated,” “confused,” and “angry” because he had expected to have consensual sexual relations.

During the instruction conference, Johnson requested that the trial court submit to the jury a class A misdemeanor third-degree assault instruction as a lesser included offense. The trial court denied the request and instructed the jury solely on the attempted forcible rape charge.

DISCUSSION AND DECISION

In his direct appeal, Johnson argues that the trial court erred in refusing to submit to the jury the requested third-degree assault instruction.1 His argument rests on the false premise that, because the third-degree assault instruction he offered was supported by the defense evidence, the trial court was required to submit it.2

It is error for the trial court to fail to instruct on all lesser included offenses that are supported by the evidence. State v. Stone, 571 S.W.2d 486, 487[1] (Mo. App.1978). However, the court has no obligation to instruct on an offense not specifically charged in the information unless it is a lesser included offense. Id. at 487[2].3 [300]*300The test to determine if one offense is “necessarily” included in another is:

If the greater of two offenses includes all the legal and factual elements of the lesser, the greater includes the lesser; but if the lesser offense requires the inclusion of some necessary element not so included in the greater offense, the lessor is not necessarily included in the greater.

State v. Weems, 800 S.W.2d 54, 58 (Mo. App.1990) (quoting State v. Amsden, 299 S.W.2d 498, 504 (Mo.1957)), and 27 Am.Jur. Indictments and Informations § 194 (1940)). See also 41 Am.Jur.2d Indictments and Informations § 313 (1968); § 556.046.1(1), RSMo 1986.

In State v. Smith, 592 S.W.2d 165 (Mo. banc 1979), our supreme court reexamined and clarified “the standard for determining the lesser included status of criminal offenses” as established in Amsden. 592 S.W.2d at 165. The court made clear that Missouri follows the “statutory element” test. Id. at 166. Thus, contrary to Johnson’s argument, the correct test “is based on a comparison of the statutory elements of the crimes, not the particular facts of the case.” Weems, 800 S.W.2d at 58.

In Stone, the court said this about the Amsden test:

[A]n offense does not become a lesser included offense because all of the elements of the lesser offense are supported by evidence at the trial. Rather, all elements of the lesser offense must be necessary to establish the greater offense when added to an additional element or elements. In short, the fact that the evidence establishes guilt of the defendant of a lesser crime does not necessarily mean that that crime is a lesser included offense and must be instructed upon.

571 S.W.2d at 487 (emphasis added).

The instruction which Johnson sought was for a lesser included offense which contains elements (physical injury or physical contact) that are not included in the offense of attempted forcible rape.4 Indeed, the third-degree assault instruction proffered by Johnson specified “physical injury” as an element of the offense. It is clear not only from the statute but also the cases that “physical injury” is not an element of attempted rape. See, e.g., State v. Boschert, 693 S.W.2d 128, 129[3] (Mo.App. 1985). Because “physical injury” is not an element of attempted rape, third-degree assault is not a lesser included offense of attempted rape, and the trial court committed no error in refusing to instruct the jury on class A misdemeanor third-degree assault. Id. See also State v. Molkenbur,

State v. Johnson, 841 S.W.2d 298, 1992 Mo. App. LEXIS 1711, 1992 WL 329049 (Mo. Ct. App. 1992).

841 S.W.2d 298 (State v. Johnson) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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