State v. Beck7/26/2005
ant of the class B felony of assault in the first degree, section 565.050,and the jury's guilty verdict, finding him guilty of the class C felony of assault in the second degree, section 565.060 . Because the parties do not raise this issue on appeal, our review of this issue, if any, would be for plain error, in accordance with Rule 30.20.
Rule 30.20 provides, in pertinent part, that " hether briefed or not, plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or a miscarriage of justice has resulted therefrom." The plain error rule should be used sparingly and does not justify a review of every alleged trial error that has not been properly preserved for appellate review. State v. Carr, 50 S.W.3d 848, 853 (Mo. App. 2001). In determining whether to exercise our discretion to grant plain error review, we look to determine whether on the face of the appellant's claim substantial grounds exist for believing that the trial court committed error that is evident, obvious, and clear, affecting a substantial right of the defendant, which resulted in manifest injustice or a miscarriage of justice. State v. Dudley, 51 S.W.3d 44, 53 (Mo. App. 2001); State v. Hibler, 21 S.W.3d 87, 96 (Mo. App. 2000).
If the appellate court chooses to exercise its discretion to conduct plain error review, the process involves two steps. First, the court must determine whether the trial court committed error, affecting substantial rights, that was evident, obvious, and clear. Id. As in the case of our review for "regular" error, not every evident, obvious, and clear error found mandates reversal. Carr, 50 S.W.3d at 853. In the case of "regular" error, to be reversible, the error found must have prejudiced the appellant. State v. Taylor, 67 S.W.3d 713, 715 (Mo. App. 2002). Likewise, in the case of plain error, the error found must have prejudiced a substantial right of the appellant, except that such prejudice must rise to the level of manifest injustice or a miscarriage of justice. State v. Cole, 71 S.W.3d 163, 170 (Mo. banc 2002). Thus, even if evident, obvious and clear error is found in the first step of the review, the second step of plain error review requires the court to determine whether manifest injustice or a miscarriage of justice resulted therefrom. Hibler, 21 S.W.3d at 96.
In its form judgment entry, the trial court found that the appellant was convicted of the class B felony of assault in the first degree, as originally charged by the State. However, the jury, in its verdict, found him guilty of the lesser-included offense of assault in the second degree, a class C felony, as submitted in Instruction No. 7, thereby acquitting him of assault in the first degree. State v. Collins,154 S.W.3d 486, 489 (Mo. App. 2005). In that regard, the record reflects the following:
THE COURT: The verdict form returned by the jury reads as follows: 'We, the jury, find the defendant, Patrick Beck, guilty of assault in the second degree as submitted in Instruction Number 7.' It is signed by the foreperson of the jury.
As to sentencing, the jury recommended that the appellant be sentenced to three years in the Missouri Department of Corrections and fined. The trial court accepted the jury's recommendation, stating:
Mr. Beck, you had your right to a jury trial, and the jury found you guilty. Their recommendation was three years imprisonment, plus a fine in the matter. In accordance with that, it's the judgment and sentence of this Court that you be transported to the reception center of the Missouri Department of Corrections by the sheriff of Morgan County, Missouri, with one guard allowed, there to
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