IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
STATE OF MISSOURI, )
)
Respondent, )
)
v. ) WD77540
)
HENRY R. RAMIREZ, ) Opinion filed:
)
Appellant. )
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI
THE HONORABLE ROBERT M. SCHIEBER, JUDGE
Before Division One: Cynthia L. Martin, Presiding Judge,
Joseph M. Ellis, Judge and James E. Welsh, Judge
Appellant Henry Ramirez appeals from his convictions of one count of murder in
the second degree, § 565.021,1 two counts of assault in the first degree, § 565.050, and
three counts of armed criminal action, § 571.015. Appellant contends that the trial court
erred in refusing to instruct on the lesser-included instructions of voluntary
manslaughter, involuntary manslaughter, and assault in the second degree. For the
following reasons, the judgment is vacated.
On April 5, 2012, the police responded to the home of Roy Willis in Kansas City,
Missouri. Upon arrival, the police came in contact with Roy and his adult son, Justin
1
Unless otherwise noted, all statutory citations are to RSMo 2000 as updated through the 2012
Cumulative Supplement.
Willis, both of whom had sustained multiple stab wounds. Upon inspection of the home,
the police discovered the body of Tom Willis, Roy's brother. Tom had also sustained
multiple stab wounds and was pronounced dead at the scene. The police recovered
two knives that were on a desk in the kitchen. One of the knives tested positive for
blood. Roy and Justin identified Appellant as the perpetrator.
The police arrested Appellant when he returned to the Willis home later that
evening. The coveralls Appellant was wearing contained bloodstains that were later
determined to match Justin's and Roy's DNA. Appellant was subsequently charged with
one count of second-degree murder, two counts of first-degree assault, and three
counts of armed criminal action.
In 2014, the case proceeded to trial. The State presented the following evidence
during its case-in-chief. On the afternoon of April 5, 2012, Roy, Justin, and Tom were at
the Willis home. Roy was sitting in the garage when Appellant approached him and
asked to speak with Justin. Appellant and Justin grew up together, and the Willises
considered Appellant to be family. Roy yelled to Justin, who was upstairs in his
bedroom, that Appellant wanted to talk with him. Roy then escorted Appellant up the
basement steps and into the kitchen. While in the kitchen, Appellant said something to
Roy. When Roy turned to face Appellant, Appellant began stabbing Roy with a knife.
Roy fled from Appellant, ran into the bathroom, and attempted to shut the door.
Appellant, however, was able to enter the bathroom and continued stabbing Roy, who
fell backwards into the bathtub. Justin then came into the bathroom and pulled
Appellant off of Roy. When Appellant began attacking Justin, Justin ran out of the
bathroom, and Appellant followed. When Appellant and Justin left the bathroom, Roy
2
exited the home, yelled for help, and called 911. As he was exiting the home, Roy
observed Tom lying on the living room floor in a puddle of blood.
Appellant's brother, Billy Burns, was at a home nearby when he heard cries for
help. He started in the direction of the Willis home and saw Appellant kicking something
in the garage. When Burns got closer, Appellant ran back upstairs into the Willis home.
Burns entered the garage and observed Justin severely injured on the garage floor. He
went upstairs, found Appellant in the kitchen, and asked: "What the hell is going on?"
Appellant then ran back downstairs and exited the Willis home without responding to
Burns.
Roy and Justin were transported to local hospitals. As a result of the stabbing,
Roy suffered injuries to his lung, neck, stomach, and small intestine. Justin sustained
stab wounds to his leg, back, and carotid artery. Tom's autopsy established that he had
been stabbed five times, including once in the carotid artery. All of Tom's five wounds
were considered fatal injuries.
After the close of the State's evidence, Appellant testified on his own behalf and
claimed self-defense. Appellant explained that, on April 4, 2014, he went to the
emergency room and received a prescription for Percocet after he hyper-extended his
elbow. When he entered the Willis home on April 5, 2014, he had a conversation with
Justin about the injury and his prescription for Percocet. Justin asked for some
Percocet, but Appellant refused to give him any. At the time, both Justin and Roy were
seeking treatment for their addictions to pain medications.
Appellant went on to testify that when he refused to give Justin the Percocet,
Justin punched him in the face, causing him to fall backward. Justin, Tom, and Roy
3
proceeded to attack and kick him. Appellant then saw Roy pull what Appellant believed
to be a knife from his hip or pocket. Fearing for his life, Appellant responded by pulling
his pocketknife and using it to defend himself as he got up off the floor. Appellant
explained that the struggle continued throughout the house and that, if able, he would
have left the home.
At the instruction conference, Appellant requested that the jury be instructed on
the lesser-included offenses of voluntary manslaughter, involuntary manslaughter, and
second-degree assault. The trial court refused the proffered instructions on the basis
that there was no evidence to support the submission of instructions on the lesser-
included offenses. The jury was subsequently instructed on second-degree murder,
first-degree assault, armed criminal action, and self-defense.
The jury found Appellant guilty as charged. The trial court sentenced Appellant
to terms of life imprisonment for the second-degree murder count and each of the two
first-degree assault counts and to ten years on each of the three armed criminal action
counts. The trial court ordered all sentences to run concurrently except for one of the
life sentences, which the court ordered to run consecutive to the other four sentences.
Appellant subsequently filed a motion for new trial which included claims related to the
trial court's failure to instruct on the lesser-included offenses. The trial court denied
Appellant's motion for new trial. Appellant raises two points of error on appeal.
In his first point, Appellant contends that the trial court erred in refusing to instruct
the jury on the lesser-included offenses of voluntary and involuntary manslaughter. We
review "de novo a trial court's decision whether to give a requested jury instruction
under section 556.046." State v. Jackson, 433 S.W.3d 390, 395 (Mo. banc 2014). "[I]f
4
the statutory requirements for giving such an instruction are met, a failure to give a
requested instruction is reversible error." Id.
Voluntary manslaughter and involuntary manslaughter are lesser-included
offenses of murder in the second degree. § 565.025.2(2). Pursuant to § 556.046, a trial
court is obligated to give an instruction on a lesser-included offense when: (1) "a party
timely requests the instruction"; (2) "there is a basis in the evidence for acquitting the
defendant of the charged offense"; and (3) "there is a basis in the evidence for
convicting the defendant of the lesser included offense for which the instruction is
requested." Jackson, 433 S.W.3d at 396. "Doubts concerning whether to instruct on a
lesser included offense should be resolved in favor of including the instruction, leaving it
to the jury to decide." Id. at 399 (internal quotation omitted).
The State concedes that Appellant timely requested the instructions on voluntary
and involuntary manslaughter. The State further concedes that, because the jury has
the right to believe or disbelieve all or any part of the evidence, id., there was a basis for
the jury to acquit Appellant of the charged offense of murder in the second degree. It
argues, however, that there was no basis in the evidence for convicting Appellant of the
lesser-included offenses of voluntary manslaughter and involuntary manslaughter.
We begin by considering whether the trial court erred in failing to instruct on the
lesser-included offense of involuntary manslaughter. Appellant argues that the
evidence presented at trial provided a basis for acquitting him of second-degree murder
and convicting him of involuntary manslaughter. In response, the State contends that,
while there is a basis for acquitting Appellant of second-degree murder, there is no
basis in the evidence to support an inference that Appellant acted recklessly, so as to
5
support a conviction for involuntary manslaughter, when he stabbed Tom five times in
vital areas of the body. Accordingly, the issue presented is whether there is a basis in
the evidence for convicting Appellant of involuntary manslaughter.
"[T]he jury's right to disbelieve all or any part of the evidence, and its right to
refuse to draw any needed inference, is a sufficient basis in the evidence to justify
giving any lesser included offense instruction when the offenses are separated only by
one differential element for which the state bears the burden of proof." Jackson, 433
S.W.3d at 401. "Lesser-included offenses that are separated from the greater offense
by one differential element for which the state bears the burden of proof are referred to
as 'nested' lesser-included offenses." State v. Randle, No. SC94646, 2015 Mo. LEXIS
146, at *4-5 (Mo. banc August 4, 2015). "Nested" lesser-included offenses are "those
[offenses] comprised of a subset of the elements of the charged offense." Jackson,
433 S.W.3d at 404. "Consequently, it is impossible to commit the greater without
necessarily committing the lesser." Randle, 2015 Mo. LEXIS 146, at *5 (emphasis in
original, internal quotation omitted). "A defendant is entitled, upon proper request, to an
instruction on a 'nested' lesser-included offense and, therefore, does not have to
introduce affirmative evidence or 'cast doubt' over the state's evidence in any way."
State v. Roberts, No. SC94711, 2015 Mo. LEXIS 147, at *4-5 (Mo. banc August 4,
2015).
As charged in this case, "[a] person commits the crime of murder in the second
degree if he [or she] . . . [k]nowingly causes the death of another person[.]"2 §
565.021.1(1). In contrast, "[a] person commits the crime of involuntary manslaughter in
2
“A person ‘acts knowingly’ . . . [w]ith respect to a result of his conduct when he is aware that his conduct
is practically certain to cause that result.” § 562.016.3(2).
6
the first degree if he or she . . . [r]ecklessly causes the death of another person."3 §
565.024.1(1). Thus, under the circumstances of this case, the sole differential element
between second-degree murder and involuntary manslaughter is the culpable mental
state, requiring the State to prove that the defendant acted with a different intent with
respect to causing the victim's death.
Although "knowingly" and "recklessly" constitute different mental states, Missouri
has statutorily "graded" its culpable mental states. See § 562.021.4. Each mental state
is included in the higher mental states. § 562.021.4. In particular, as pertinent to this
case, "Section 562.021.4 provides that, '[w]hen recklessness suffices to establish a
culpable mental state, it is also established if a person acts purposefully or knowingly.'"
Randle, 2015 Mo. LEXIS 146, at *5. Therefore, where the evidence is sufficient to
establish a person acted purposely or knowingly, there is no need for additional proof
that the defendant acted recklessly. Id. at *4-5.
The offenses of second-degree murder and involuntary manslaughter require the
State to prove that the defendant acted with a different intent with respect to causing the
victim's death. Therefore, different mental states are required to prove the separate
offenses of second-degree murder and involuntary manslaughter, and "these different
mens rea requirements are differential elements on which the State bears the burden of
proof." Id. at *6-7. The remaining element, causing the death of the victim, remains the
same. Accordingly, involuntary manslaughter is a "nested" lesser-included offense of
second-degree murder.4
3
“A person ‘acts recklessly’ . . . when he consciously disregards a substantial and unjustifiable risk that
circumstances exists or that a result will follow, and such disregard constitutes a gross deviation from the
standard of care which a reasonable person would exercise in the situation.” § 562.016.4.
4
This Court reached this same conclusion in State v. Sanders, No. WD76452, 2015 Mo. App. LEXIS
7
In the case at bar, both parties concede that the record contained sufficient
evidence to prove the elements of second-degree murder. The presence of sufficient
evidence to establish that Appellant committed second-degree murder by knowingly
causing the victim's death necessarily means that there was also a basis in the
evidence for the jury to convict Appellant of involuntary manslaughter by recklessly
causing his death. See Roberts, 2015 Mo. LEXIS 147, at *5 ("[P]roof that Mr. Roberts
committed second-degree domestic assault by 'knowingly' causing physical injury to
A.A. necessarily means there was also a basis in the evidence for the jury to convict Mr.
Roberts of third-degree domestic assault by 'recklessly' injuring A.A."); Randle, 2015
Mo. LEXIS 146, at *7 ("[I]f Mr. Randle 'knowingly' inflicted physical injury, he necessarily
engaged in conduct sufficient to establish that he 'recklessly' inflicted physical injury.").
Accordingly, upon Appellant's request, the trial court was obligated to submit an
instruction on the "nested" lesser-included offense of involuntary manslaughter. It
committed reversible error in refusing to so instruct the jury.
Because Appellant's murder conviction and sentence must be vacated on this
basis, we need not address whether the trial court also erred in refusing to give a
voluntary manslaughter instruction. That claim of error is complicated by the fact that
the instruction requested by Appellant did not conform to the applicable MAI-CR
instruction. We note, however, that, if the same evidence is presented on retrial and a
voluntary manslaughter instruction conforming to MAI-CR is requested, the trial court
should give the voluntary manslaughter instruction as the evidence presented at the
117, at *4 (Mo. App. W.D. Feb. 3, 2015), which has been transferred to the Missouri Supreme Court.
8
original trial was sufficient to inject the issue of sudden passion arising from adequate
cause into the case.5 Point granted.
In his second point, Appellant contends that the trial court erred in refusing to
instruct on the lesser-included offense of assault in the second degree with regard to
the two first-degree assault charges. Again, we review "de novo a trial court's decision
whether to give a requested jury instruction under section 556.046." Jackson, 433
S.W.3d at 395. "[I]f the statutory requirements for giving such an instruction are met, a
failure to give a requested instruction is reversible error." Id.
Assault in the second degree is a lesser-included offense of assault in the first
degree. State v. Jefferson, 414 S.W.3d 82, 86 (Mo. App. E.D. 2013). Pursuant to §
556.046, a trial court is obligated to give an instruction on a lesser-included offense
when: (1) "a party timely requests the instruction"; (2) "there is a basis in the evidence
for acquitting the defendant of the charged offense"; and (3) "there is a basis in the
evidence for convicting the defendant of the lesser included offense for which the
instruction is requested." Jackson, 433 S.W.3d at 396. "Doubts concerning whether to
instruct on a lesser included offense should be resolved in favor of including the
instruction, leaving it to the jury to decide." Id. at 399 (internal quotation omitted).
5
Appellant testified that Justin was persistent about asking for the Percocet and eventually hit Appellant
in the face after Appellant refused to give him the pills. Appellant explained that he fell back into the living
room and that Justin, Tom, and Roy proceeded to attack and kick him. Appellant testified that he then
saw Roy pull a knife from his pocket. Appellant tried his “best to get to [his] feet” and pulled the knife out
to “defend” himself. Appellant testified that he was in fear and that he had not gone to the Willises’ home
expecting to get into a fight. He further stated that he was not paying attention to how many times or
where he stabbed the victims, he was stabbing “wherever [he] could get them to get them off [him].”
Testimony from Burns indicated that Appellant appeared “shocked and traumatized” and was “white as a
ghost” following the incident.
The jury could accept or believe any of Appellant’s testimony. State v. Redmond, 937 S.W.2d
205, 209 (Mo. banc 1996); see also Jackson, 433 S.W.3d at 399. The jury, therefore, could believe that,
as a result of the “unexpected encounter” with the Willises, Appellant was driven by fear, not reason,
when he stabbed Tom. Accordingly, the evidence presented was sufficient to inject the issue of sudden
passion arising from adequate cause.
9
The State concedes that there was a timely request for instruction on the lesser-
included offense of second-degree assault and that there was a basis to acquit
Appellant of the charged offense of assault in the first degree. Nevertheless, the State
again avers that Appellant's actions transcend recklessness and, thus, there is no basis
in the evidence to convict Appellant of the lesser-included offense of assault in the
second degree. We disagree.
As charged in this case, assault in the second degree is a nested lesser-included
offense of assault in the first degree. "A person commits the crime of assault in the first
degree if he [or she] attempts to kill or knowingly causes or attempts to cause serious
physical injury to another person." § 565.050.1 (emphasis added). "A person is guilty
of attempt to commit an offense when, with the purpose of committing the offense, he
does any act which is a substantial step toward the commission of the offense." §
564.011.
In this case, the jury was instructed to find the defendant guilty of assault in the
first degree if it found that Appellant attempted to kill or cause serious physical injury to
Willis by stabbing him and did, in fact, cause serious physical injury to Willis.
Accordingly, the jury was required to find Appellant guilty if it found that he purposely
stabbed Willis intending to kill or cause serious physical injury to him and thereby
caused serious physical injury to him.6
6
For whatever reason, the State chose not to instruct the jury to find the defendant guilty if it found that
he had knowingly caused serious physical injury to Willis and to instead instruct the jury to find him guilty
if it found that he purposely tried to cause serious physical injury to Willis by stabbing him and did, in fact,
cause serious physical injury to him. As it relates to this case, however, this is a difference without
distinction. Whether the requisite culpable mental state was purposely or knowingly, the result in this
case is the same.
0
10
"A person commits the crime of assault in the second degree if he [or she] . . .
[r]ecklessly causes serious physical injury to another person." § 565.060.1(3)
(emphasis added). Therefore, under the circumstances of this case, the differential
element between first-degree assault and second-degree assault is whether Appellant
acted purposely or recklessly in causing serious physical injury to Willis by stabbing
him.
As previously explained, Missouri has graded its culpable mental states such that
each culpable mental state is included in the higher culpable mental states. §
562.021.4. "When recklessness suffices to establish a culpable mental state, it is also
established if a person acts purposefully or knowingly." § 562.021.4. Therefore, when
evidence is sufficient to establish that a defendant acted "purposely" or "knowingly," it is
automatically sufficient to establish that a defendant "recklessly" acted. Randle, 2015
Mo. LEXIS 146, at *4-5.
Thus, it follows that, as charged in this case, second-degree assault is a nested
lesser-included offense of first-degree assault in that it is comprised of a subset of the
elements of first-degree assault. The State does not refute that there was sufficient
evidence to convict Appellant of the offense of first-degree assault. Because there was
sufficient evidence to prove the elements of the greater offense of first-degree assault,
there was, necessarily, sufficient evidence to prove the nested lesser-included offense
of second-degree assault. When a defendant requests an instruction for a nested
lesser-included offense, that instruction must be given. Jackson, 433 S.W.3d at 404.
The trial court, therefore, committed reversible error by failing to instruct on the nested
lesser-included offense of assault in the second degree. Point granted.
1
11
For the foregoing reasons, Appellant's convictions for second-degree murder and
first-degree assault are vacated. Because his convictions for armed criminal action are
based upon his murder and assault convictions, they are also vacated.
The judgment is vacated, and the case is remanded.
________________________________
Joseph M. Ellis, Judge
All concur.
2
12