State of Missouri v. Nicholas A. Evans , 455 S.W.3d 452 ( 2014 )

In the Missouri Court of Appeals
Eastern District
DIVISION THREE
STATE OF MISSOURI, ) EDI()OI 10
)
Respondent, ) Appeal from the Circuit Court
) of Lincoln County
v. ) l2L6-CROO003-0l
)
NICI-IOLAS A. EVANS, ) Honorable Ch1'is K. Meniienieyer
)
Appellaiit. ) Filed: Septeniber 30, 2014
introduction
Nicholas Evans (Defendant) appeals the judgment entered upon his conviction
after a jury found him guilty of assault in the first degree and armed criminal action. 'i`his
case, along with another case handed down today, State v. Mtlrph};, ED99942, present the
question of whether a hand or a fist can qualify as a "daligerous instrunient" in support of
a conviction for the unciassiiied felony of armed criminal action. We conclude that the
plain language of the statutory definition does not contemplate a hand or fist as a
“dangerotls instrument." Defendant also argues that the trial court abused its discretion in
allowing the State to present a prejudicial photograph to the jury, which had an outcome-
deterniinative effect on his trial. We reverse in part and affirm in part.
Background
Viewed in the light most favorable to the verdict, the evidence at trial was the
following. During the early morning hours of December 31, 2012, Megali Crawford
(Crawford) rode with her cousin, Emily Martin (Maitin), to Georgee’s Bar to pick up
Martin’s boyfriend, LJ. Martin drove her compact car, and Crawford rode in the
passenger seat. Crawford’s boyfriend went with them as well and rode in the backseat.
When they arrived at Georgee’s, Crawford saw her friend James Zemek (Victim) outside,
and she got out of the car to go taik to hirn. After a brief conversation, Crawford returned
to the car to wait for LJ. Cravvford believed Victim was intoxicated
Eventually, L.l came out of the bar vvitli Defendant and two other men. LJ,
Defendant, and one other man attempted to get in the backseat of Martin’s car, where
Crawford’s boyfriend was seated. Crawford told them there was not enough space for
everyone to flt, and she believed they were there to pick up LJ only.
Victim approached the car and asked Crawford if she was okay. Defendant asked
Victim why he was getting involved because it was not any of Victim’s business, which
caused Defendant and Victim to argue. Two other men, one of whom was Crawford’s
uncle, Zack Richter (Richter), came over to the car and asked if everyone was all right.
Crawford told them everything was fine. After that, Victim walked away with Richter
and the other 1nan. As Victim walked away, Defendant’s friends were physically
restraining Defendant.
Defendant broke away from his friends and ran over to Victim. Defendant
punched Victim on the side of Victim’s face, and Victim appeared to become
unconscious after the first punch. Defendant continued to punch Victim. Richter
unsuccessfully attempted to pull Defendant away from Victim. Aliotliei' man, Alithony
Winebarger (Winebarger) did pull Defendant away briefiy, but Defendant broke free and
said, "I’m going to get you, white boy. It’s on now." Defendant ran back to Victim and
punched him again. After this, LJ and another man ran over to Victirn, and one of them
kicked Victim in his upper torso area. Defendant had punched Victim four to five times
in totai, but Vietim never moved after the first punch.
After the attack was over, Defendant and the men with him ran away. When
Crawford and her friends saw that Victim was still not waking up and was bleeding
profusely from his face, they put him in the back of a car and took him to the liospital.
He regained consciousness at the hospital, but he had to be flown by helicopter to a
hospital in St. Charles.
Victim sustained severe brain trauma, swelling, and bieeding, as weil as a skull
fracture. 'fhese injuries created a life-threatening situation, and Victim would likely have
died without treatment Victiin spent two weeks in the liospital, and he underwent
surgery after that to repair his skull. Since this incident, Victim has been more confused
and forgetful, and he struggles with speech. He experiences dizziness regularly and has
to lay down and rest during the day. He is not able to play with his kids in the same way
he did before. I-Ie has migraine headaches, and his vision is also impaired since this
incident lie does not remember the incident at all.
Defendant was charged with assault in the first degree and armed criminal action.
The State argued that the jury could find Defendant guilty of armed criminal action,
because he committed the assault through use of a "daiigerous instrument," in this case,
his fists. The jury found Defendant guilty of both counts, and the trial court sentenced
Defendant to concurrent terms of ten years in prison for first-degree assault and three
years for armed criminal action. This appeal follows.
Discussion
Defendant raises two points on appeal. In Point I, he argues that the trial court
abused its discretion in admitting Exliibit 19, a photograph that a witness had used to
identify Defendant, because the photograph was more prejudicial than pi'obative. ln
Point Il, Defendant argues that the evidence was insufficient for the jury to find him
guilty of armed criminal action because a fist cannot qualify as a "dangerous instrument."
Standard of Review
Regarding Point I, a trial court has broad discretion in the admission of evidence,
and we will reverse a conviction based on an evidentiary error "only if the error was so
prejudicial that it deprived the defendant of a fair trial." State v. Tokar, 918 S.W.Zd 753,
761 (Mo. banc 1996). Such prejudice occurs when "the errors are more likely than not to
have affected the outcoine." State v. Patton, 419 S.W._°>d 125, 133 (Mo. App. E.D. 2013).
in Point II, Defendant challenges the sufficiency of the evidence to support his
conviction for arnied criminal action by raising the question of whether a fist can qualify
as a "dangerous iiistrtirnent" under the statutory definition Statutory interpretation is a
legal question that we review de novo. S. Metro. Fire Protection Dist. v. Citv of Lee’s
Summit, 278 S.W.Bd 659, 666 (Mo. banc 2009). Thereafter, we examine the whole
record in light of our iiiterpretation, to determine "whetlier the State has introduced
sufficient evidence for any reasonable juror to have been convinced of the defendant’s
guilt beyond a reasonable doubt." State v. Nash, 339 S.W.Bd 500, 509 (Mo. banc 2011).
.Plgiil_t_l
Defendant argues that the trial court abused its discretion in admitting Exhibit 19
into evidence because it was irrelevant and more prejudicial than probative We agree.
However, in light of the other evidence of Defendant’s guilt, we conclude that the error
was not outcome-determinative.
Exhibit 19 came into evidence during the State’s examination of Wiiiebarger,
when the State recalled him after his initial testimony. Prior to that during Defendant’s
cross-examination of Wiiiebarger, defense counsel asked Winebarger if he knew LJ, and
Winebarger replied that he did not. Winebargei' added that he had learned the names of
LJ and Defendant when he saw their pictures on Facebook, which someone had accessed
from a cell phone at the hospital.
The State recalled Winebargei' to ask about a specific Facebook photograph of
Defendant, Exhibit l9. The following colloquy occurred:
[STATE:} [W]as this the photograph that you looked at when
you were determining whether or not that was the same Nick
Evans that you saw at Georgee’s bar the evening in question?
[WINEBARGER:] Yes. This was one of thein. This one here
is not as good as the other ones. The other ones, we were able
to identify him better.
[STATE:] [W]ere you able to deteriuine, based on that tag on
that individual in the pictui'e, that it was the same individual
that you saw at Georgee’s bar?
[WINEBARGER:] Not so much with this picture, but there
was obviously other pictures that clearly were[,] . . . other
pictures where he had a more normal appearance . . . .
The State moved for admission of Exhibit 19, and defense counsel argued that it was
prejudicial because it pictured a group of people, including Defendant, who were making
some kind of finger signs. Defense counsel argued the jury could draw an adverse
inference about the signs, possibly that they were gang signs. The trial court decided that
based on the fact that the Facebook photographs were first mentioned during cross-
examination, the couit would allow Exhibit 19 into evidence.
Evidence must be relevant to be admissible. State v. Anderson, 76 S.W.3d 275,
276 (Mo. banc 2002). Logically relevant evidence goes to the question of whether a
material fact is true. I_d_. I~lowever, even logically relevant evidence is admissible only if
it is legally relevant. l_cL "Legal relevance weighs the probative value of the evidence
against its costs_unfair prejudice, confusion of the issues, misleading the jury, undue
delay, waste of time, or cuniulativeness." § 'l`hougli a trial court has broad discretion in
admitting photograplis, there are limitations on this discretion. State v. Floyd, 360
S.W.Zd 630, 633 (Mo. 1962). "[P]liotographs should not be admitted where their sole
purpose is to arouse the emotions of the jury and to prejudice the defendant." Ld. (citation
oniitted).
Here, Exhibit 19 was one of many photographs that witnesses used to identify
Defendant as the man who punched Victim. Thus, it was logically relevant. However,
the legal relevance here is lacking. Defendant’s identity was not contested. Defendant
conceded he was there but gave a different version of events, arguing essentially self-
defense and possible additional unintentional contact.l Moreover, Winebargei' stated that
1 Specifically, Defendant’s counsel stated in his opening statement that he expected the evidence to show
that Defendant "s\v[iijng because [he was} trying to defend [liiin]self." Defendant later testified that Victini
swung at him twice, and then someone stepped in between Victim and Defendant Shortly after that,
Victim came toward Defendant again, and Defendant "siviing out and [] barely tapped his chin," which
6
though he viewed Exliibit 19, it was not the most helpful in identifying Defendant Thus,
the probative value of this evidence was minirnal. 'l`he photograph was prejudicial in that
the jury saw a group of men, including Defendant, making faces and displaying hand
signs. Defendant was sticking out his tongue. The jury could have drawn an adverse
inference from this image of Defendant, and Winebargei' testified there were several
other Facebook photographs available that he viewed and pictured Defendant with "a
more normal appearance.” We are strained to find a reason for the State’s choice of this
picture that does not include its prejudicial effect Given the potential for prejudice, in
light of the very minimal probative value, we find that the trial court abused its discretion
in admitting exhibit 19? _s_@§ iii
Finding error, we now must consider whether that error was outco1ne-
determinative. § Anderson, 76 S.W.3d at 277. Defendant argues that because the jury
had to discern which of the two versions of events to believe, Exhibit 19 led the jury to
believe Defendant a bad person, and the conviction was based on this belief. Defendant
points out that the jury deliberated for four hours, showing they were contlicted, and
Defendant argues this shows Exhibit 19 did affect their ve1'dict. We disagree.
The evidence that Defendant punched Victim repeatedly while Victim was
unconscious was corroborated by three eyewitnesses, and the doctors who treated Victim
made Defendant fall to the ground. Defendant testified that while on the ground, he "received iiuiiieroils
blows to the back, to [his] head." As Defendant tried to get up, lie “\vas s\vinging \vildly with [liis] right
arm trying to get {him]self free to get up off the ground." Defendant was not sure what he hit when he was
swinging and trying to stand up.
2 The State argues such a conclusion is mistaken because the evidentiary rule prohibiting evidence of other
crimes or misconduct would only be violated if the evidence sliowed that the Defendant was in a gang §
State v. Davidson, 242 S.W.Sd 409, 415 (Mo. App. E.D. 2007). While evidence may not violate an
exclusionary rule and be logically relevant, it can still be error to admit such evidence where the prejudicial
effect of such evidence outweighs any probative value. In Davidson the couit found letters defendant
\vrote "highly probative" and no prejudice from the vague statement in a letter that defendant was "a G,"
implying gang membership I_d. While we reach a different conclusion as to legal relevance under the facts
here, ultimately the Davidson court found, as we do, that the vague reference to gang membership did not
"siipport a claim of reversible error." §
detailed the extent of Victim’s injuries to the jury. All of this evidence refuted
Defendant’s testimony that he merely "tapped" Victim and may have accidently hit
Victim additional times when his arms were "swingiiig wildly" as he tried to stand up.
The fact that the jury deliberated for four hours does not establish prejudice liere. They
could have been debating any number of issues raised by the law and the evidence,
including the elements of armed criminal action, which we will discuss in Point II. Thus,
Defendant has not shown that Exhibit 19 had an outcome-determinative effect on his
ti'ial. §§ Anderson, 76 S.W.3d at 276. Point denied.
BQ_L;§_II
Defendant argues that his conviction for armed criminal action, based on the jury
finding that he conimitted first»degree assault with a dangerous instruinent, must be
reversed because the only evidence was that he hit Victim with his fists, and a list cannot
qualify as a "dangerous instrument" under the statutory definition We agi'ee.
Section 571.015.13 provides that a person is guilty of the felony of armed criminal
action when that person commits another felony "by, with, or through the use, assistance,
or aid of a dangerous instrument or deadly weapon." A deadly weapon is something that
is inherently dangerous, such as a firearm; whereas a dangerous instrument can be an
ordinary or “seeniingly innocuous item" that becomes dangerous under the circumstances
in which it is used. State v. Williains, 126 S.W.Bd 377, 384 (Mo. banc 2004). Because
Defendant did not use a weapon here, the relevant inquiry is whether lie utilized a
"dangerous instrument” when he punched Victim with his fists.
"Dangerous instrument" is defined in Section 556.061(9):
3 All statutory references are to RSMO. (Supp. 2013) unless otherwise indicated
8
[A]iiy instruiiient, article or substance, which, under the
circumstances in which it is used, is readily capable of causing
death or other serious physical iiijury[.]
Few courts in Missouri have addressed the issue of whether a body part can fail under
this definition, and none have considered the threshold determination required by the
statute: whethei‘, in light of tlie plain language of the defiiiitioii, a haiid, iist, or other body
part is an “insti'uineiit, article or substaiice," and therefore capable of becoming a
‘°dangerous instrumeiit" as a matter of law. This is the question presented hei'e.
""i`he primary rule of statutory interpretation is to effectuate legislative intent
through reference to the plain and ordinary meaning of the statutory language." §t_ai_teL
Q_i'_a_ha_i_i_i_, 204 S.W.E)d 655, 656 (Mo. banc 2006). Rather than liyper-technical, statutory
construction should be reasonable and logical, and should determine whether the
language would be clear to persons of ordinary intelligence in re Boland, 155 S.W.I`)d
65, 67 (Mo. banc 2005); State v. Gi'ahain, 149 S.W.?)d 465, 467 (Mo. App. E.D. 2004).
We conclude that a reasoned and common-sense reading of the terms "iiisti'iiinent,
article or substance" from the definition of "dangerous iiisti'unient" indicate an external
object or iteni, rather than a part of a pei'son’s body. The most relevant dictionary
definition of "instruinent” is “a tool or implement, esp. one for delicate or scientific
work."" THE OXFORD CoLLEGE DiCTioNARY 701 (Zd ed. 2007); see also Gasli v.
Lafayette County, 245 S.W.3d 229, 232 (Mo. banc 2008) (in absence of statutory
definition, courts derive plain and ordinary meaning from dictionary definition). In
ordinary ianguage, hands, feet, or other body parts are not commonly referred to as
4 Less relevant here, but no more persuasive iii convincing us that body parts are included, are the
definitions of "aiticle" and "substance." "Article" is defined in relevant part as “a particular item or object,
typically one of a specified type"; and "substaiice" as "a particular kind of rnattei' with iiniform propeities{;]
an iiitoxicating, stirnulating, or narcotic clieinical or drug, esp. an illegal one." THE OXFORD COLLEGE
DicrioN/\RY 67, 1369 (Zd ed. 2007).
instruments, or even as articles or substances. Thus, a plain and ordinary reading of the
terms instrument, article, and substance do not iiidicate a body part.
Moreover, such a conclusion is consistent with the armed criminal action statute’s
context and prior case law. While the current armed criminal action statute has been iii
effect since 1979, prior versions of the statute conteinplated additional punishment for
felonies committed only through the use of weapons. § Section 559.225.1, RSMo.
(Supp. 1976) (same laiiguage as current version save omission of "instrtiment," thus
proscribing only use of "dangerotis or deadly weapon"). Before 1976, the statute existed
not as a separate felony offense, but simply as a means of enhancing the sentence of a
person coinrnitting a felony, when that felony was committed using a deadly weapoii.
Sectioii 4821 (RSMo. 1939) ("lf any person shall be convicted of committing a felony, or
attempting to commit a feloiiy, while armed with a pistol or any deadly weapon[,] the
punishment elsewhere prescribed for said offense . . . shall be iiicreased . . . by
imprisonment . . . for two years"). The legislature’s intent was to impose an additional
punishment to those who cominit felonies "in virtue of [their] having been comniitted
through the use of a dangerous or deadly weapon." Sours v. State, 603 S.W.2d 592, 599
(Mo. banc 1980); see also State v. Kane, 629 S.W.2d 372, 374 (Mo. banc 1982) (reciting
prior versions of armed criminal action statute§).
Thus, the current versioii, allowing conviction for arined criminal action when a
felony is committed through the use of a "daiigerous iiistruinent," iii addition to a deadly
5 However, we note that in @, the court quotes the 1976 version from Section 559.225, RSl\/lo. (Supp.
1976), punishing tlie use of a "daiigerous or deadly weapon" in comiiiitting a felony, and the court notes
that it is "now [Section] 571.0]5, RSMo 1978." 629 S.W.Zd at 375. Tliis appears to be an oversight,
because actually when enacted in l977 (effective iri 1979), Section 571.015 differed from the prior version
in that the legislature iiiseited the word “instriiiiieiit," resulting in the phrase “througli the use, assistance, or
aid of a dangerous iiistriiiiierif or deadly weapon" {emphasis added), the same version of the statute that is
currently in place. Compare Section 559.225.1, RSMo. (Supp. 1976) § Section 571.015.1, RSl\/lo.
(Supp. 1977) (curi'eiit as of RSMo. (Supp. 20!3)).
10
weapon, was an expansion by the legislature to include other types of items that can be
used to cause the same degree of harm that weapons do. This seems to be an
acknowledgement by the legislature that such items were being used as weapons, and that
defendants were being convicted under the statute for committing felonies with items that
were not technically weapons. C_f. State v. Davis, 611 S.W.Zd 384, 386-87 (Mo. App.
S.D. 1981) (noting under previous statute, items such as leather-sole shoes, rocks, hoe
liandle, and cliampagne bottle had been declared dangerous weapons).
lt also indicates the legislature’s intent to impose greater punishment on those
individuals who choose to use an item or weapon to commit a crime than those who do
iiot. This is logical when considering that likely a iiiajority of the time, the potential for
greater harm is present when persons committing crimes hold sharp, heavy, or otherwise
potentially harmful objects, than if they have only their own hands at their disposal.& The
title of the aimed criminal action statute itself suggests a person who is "ariiied" with
something more than his or her own body. Thus, we believe interpreting “dangeroiis
instrument" to include body parts would unduly expand the reach of the armed criminal
action statute and result iii a significant departure from the historical intent of this
eiilianced ptinishinent.?
6 While of course there may be exceptions to this, it is reasonable to infer that the legislature sought to
increase punishment for the general circumstance iii which someone uses an item to inflict a greater degree
of harm on a victim than lie or she would liave been able to \vitlioiit the item.
7 Moreover, separate from the ariiied criminal action statute, the term "dangei'ous instrument" is
incoiporated into other criminal statutes as well. Exainining those in context also confirms that the
legislature did not intend for a "daiigeroiis instrument" to iiiclude a body part. For exainple, Section
565.073(|) defines the crime of domestic assault iii the second degree. That section states, in relevant part,
that the crime occurs when a person "{ajtteinpts to cause or knowingly causes physical injury . . . by any
meaiis, including but not liniited to, by use of a deadly weapon or dangerous instrunient, or by clioki.=ig or
si‘.»‘aiigzi!arioii." Sectioii 565.073(1) (einpliasis added). The definition of "daiigerotis instrumeiit" from
Section 556.061(9) applies in this section as \vell. Thus, if we interpreted “dangeroiis instruinent" to
include liaiids, that would render the words "cliolGraliam, 149 S.W.3d at 467 (statutes should not be iiiterpreted so as to render some phrases
mere surplusage). This also illustrates that the legislature is capable of articulating and iiicludiiig additional
ll
Turiiing to precedent, it is noteworthy at the outset that in the nearly 35 years
since Section 571.015.1 (ariiied criminal action) became effective, no Missouri appellate
decisions considering whether a particular item is a "dangerous iiistrurneiit” as used in
Section 571.015.1 concern a part of the defendaiit’s body.s The cases that do consider
whether a body part constitutes a "daiigerotis instrument" do so iii the context of assault
statutes, to which the same definition of "daiigerous iiistruineiit" applies. 'I`hese cases are
almost all consistent with our coiiclusion.
lii Seiter v. State, this Court considered whether there was a sufficient factual
basis for the defendant’s plea of guilty to first-degree assault. 719 S.W.2d 141 (Mo. App.
E.D. 1986). Uiider the statute in effect at the tiine, first-degree assault could be elevated
froin a class B felony to a class A felony upon a showing that the assault was "coininitted
by means of a deadly weapon or dangerous iiistruiiient."9 § at l42. This Court found
that though the elements of first-degree assault were present, the facts supporting the plea
were that the defendant choked the victim with his hands, and thus no evidence of a
"dangerous instrument" supported the elevation to a class A felony. l_d. at 143-44. This
Court specifically distinguished the elements of first-degree assault, requiring an attempt
to kill or cause serious physical iiijui'y, from the element of “with a dangerous
instruiiient" as follows: "Although it is true an assault with fists may be a force likely to
means of committing the crime if it intends for them to be iiicluded, and the legislature did not choose to do
so in the armed criminal action statute, §e_e State v. Bousei', 17 S.W.3d 130 (Mo. App. W.D. l999) (iioting
inaxiiii e.r;)r'esio :ini`us est e.i'chisi'on ai'terius; inclusion of one thing implies exclusion of others).
3 'l"hough there is no way of knowing how often the State charges a defendant with coinmitting armed
criminal action \vitli a part of his or her body, if the State regularly charged armed criminal action based on
coinmission of a felony with the defendaiit’s fist, we would have seen several direct or post-conviction
appeals regarding this issue, and we have not. lt is more likely that the State never anticipated charging
armed criminal action for the use of fists as the plain language of this statute for over 35 years has not
encompassed body parts as dangerous iiistruinents.
9 The current version of the statute removes any reference to "dangeroiis iiistruinerit," and instead elevates
the crime to a class A felony where "the actor inflicts serious physical injury on the victim." Section
565.050.2.
12
produce death or great bodily harm, . . . this is not the same as classifying hands as
dangerous instruments or deadly weapons . . . .” I_cl. (citing State v. Gardiner, 522 S.W.2d
323, 324 (Mo. App. 1974) (findiiig element of "with intent to kill or do great bodily
harm" was satisfied with evidence that defendant hit victim with fists, because “fists
could be a force likely to produce death or great bodily harrn")); see also State v.
Wheadon, 779 S.W.2d 708, 710-ll (Mo. App. E.D. 1989) (noting while fists could be
“force likely to produce death or great bodily harni,” they have not been found to be
“deadly weapons" or "dangei'ous instruments" tinder first-degree assault statute).
The distinction identified by the _S_§__i_t_ei_' court is the key distinction here. While
Defendant’s conviction for first-degree assault can certainly be upheld with evidence that
he attempted to cause serious physical injury with his tists, which injury lie in fact caused
here; that is not the same as saying his fists are "dangerous instruments" for purposes of a
conviction for armed criminal actioii.
The State relies on the Westerii District’s decision iii State v. Burcli, which
appears to be the only Missouri case finding a body part constituted a dangerous
instrument. 939 S.W.2d 525 (Mo. App. W.D. 1997). The court there considered whether
the evidence was sufficient for a conviction of second-degree assault, an element of
which was that the assault was committed "by means of a dangerous iiistrument." lcL at
530. The evidence iii Burch showed the defendant had beaten the victim on the head and
face with the defendant’s elbow. I_d. at 53l. The couit noted that "[fjists can be a force
likely to produce death or great bodily harm within the meaning of the statute defining
assault in the first degree." _I_c_L at 530 (citing Wheadon, 779 S.W.2d at 71 1). The court
then concluded that an elbow could also be such a foi'ce, and under the cii'cuinstances, the
13
defendant’s elbow did cause serious physical injury. Ld. at 530. Thus, the court found
that the elbow was a "dangerous instrument" used to commit assault in the second
degree. I;d. We believe the couit in _B_t_i_r_c_l; overlooked the distinction between a body
part’s ability to inflict serious bodily harm and a body part’s classification as an
“instrument." Thus, we decline to follow BLrch.
Here, Defendant used his fists to punch Victirn several times in the face. There is
no doubt his fists caused serious physical injury to Victim, and we1'e thus capable of
doing so. However, the armed criminal action statute requires use of a "dangerous
instrument," which requires a threshold fiiidirig that Defendant used an "instrurnent,
article or substance" to commit the assault. Though dangerous in this case, because fists
do not constitute an instrument, article, or substance, Defendant cannot be found to have
committed this brutal assault on Victim with a "dangerous instrument," given the
statutory definition Becallse there was no evidence Defendant used anything other than
his fists to assault Victim, the evidence at trial was insufficient to support his conviction
for armed criminal action. Point granted.
Conclusion
While the court's admission of Exhibit 19 was error, we are not convinced that
such error was reversible, in light of the overwhelming evidence of Defendant's guilt for
the count of assault in the first degree. However, there was insufficient evidence to
support Defendant’s conviction for aimed criminal action, in that there was no evidence
he used a "dangerous instrument" as defined in Section 556.061(9). Accordingly, we
vacate Defendant's conviction for armed criminal action and corresponding sentence in
14