State v. Brown
Annotate this CaseBrown went to Whitehead’s apartment and requested that Whitehead come outside. Whitehead recognized Brown and followed him downstairs. As they reached an exterior door, Brown pointed a gun at Whitehead and fired. Whitehead fell as he ran into the building, believing he had been shot. He had a hole in his shirt and a graze on his back. Whitehead was injured when he fell against a door, which was hit by the bullet. The state charged Brown, as a persistent offender, with first-degree assault and armed criminal action. The court's first-degree assault instruction asked the jury to determine whether Brown “attempted to kill or cause serious physical injury to Dylan Whitehead by shooting at him.” The second-degree assault instruction asked the jury to determine whether Brown “attempted to cause physical injury to Dylan Whitehead by means of a deadly weapon by shooting at him.” Both provided a person “attempts” to cause a certain result when they act “with the purpose” of causing that result. The court refused Brown’s instruction for third-degree assault, which would have required the jury to determine whether Brown “recklessly created a grave risk of death or serious physical injury to Dylan Whitehead by shooting at him.” The jury convicted Brown of first-degree assault and armed criminal action. The Missouri Supreme Court reversed. The trial court's error in failing to instruct the jury on third-degree assault was prejudicial. There is a basis in the evidence from which the jury could conclude Brown recklessly created a grave risk of death or serious physical injury.
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