STATE v. GRISSOM (2026)

Following a jury trial, Bryan Grissom (Defendant) was convicted of first-degree assault (Count 1); two counts of armed criminal action (Counts 2 and 4, referred to hereinafter as the ACA counts); two counts of unlawful use of a weapon (Counts 3 and 6); unlawful possession of a firearm (Count 5); and harassment (Count 7). See § 565.050; § 571.015; § 571.030; § 571.070; and § 565.090.¹ The trial court sentenced Defendant to the following terms of imprisonment: 30 years (Count 1); 15 years (Counts 2, 3 and 4); seven years (Count 5); and four years (Counts 6 and 7). The trial court ordered the sentences for Counts 1 and 2 and Counts 3 and 4 to run consecutively to each other, respectively, and all other counts to run concurrently. In Defendant's point on appeal, he contends the trial court plainly erred by entering these sentences because that ruling violated his right to be free from double jeopardy.

Factual Background

On July 15, 2023, the victim (Victim) was driving a female friend (Friend) home on his way to work. On the way, Victim and Friend encountered Defendant sitting in the middle of an intersection in a silver car that was stopped “dead center of the yellow line” dividing the highway. As Victim maneuvered around Defendant's vehicle, Victim heard Defendant state, “I'm going to kill you, MF-er[.]” Victim drove “maybe 20 feet” past Defendant before hearing a single gunshot. Victim testified he then felt pressure in his back and began coughing blood. Victim and Friend both testified that they observed Defendant pointing a black rifle at Victim's car prior to the shooting.

Following the shooting, Friend called 911 while Victim continued driving. An ambulance initially took Victim to the hospital in Poplar Bluff, but he was later taken to St. Louis by helicopter. Victim was hospitalized for 11 days with injuries to his ribs, spleen, intestines, lungs, and heart.

Deputy Earl Wheetley of the Ripley County Sheriff's Department responded to the 911 call and took pictures of Victim's vehicle. Deputy Wheetley testified that he observed a bullet hole in the rear, driver's side door of Victim's vehicle, which went through the interior of the vehicle and the driver's seat, where the bullet struck Victim, causing a blood stain on the seat. After Deputy Wheetley began investigating Defendant as a suspect, Defendant and a silver Kia sedan were located separately in West Doniphan. Deputy Wheetley and Detective Chad Keathley searched the silver Kia pursuant to a search warrant. They recovered four check stubs in Defendant's name. One was dated July 13, 2023, which was two days before the shooting.

The jury found Defendant guilty as charged on all counts, and the trial court imposed the aforementioned sentences. This appeal followed.

Standard of Review

The issue presented in Defendant's point is not preserved for appellate review because Defendant did not raise the issue at trial. Plain error review is permitted by Rule 30.20, which is to be used sparingly and may not be used to justify a review of every point that has not been otherwise preserved for appellate review. State v. Brandolese, 601 S.W.3d 519, 526 (Mo. banc 2020). Appellate courts will decline to review for plain error pursuant to Rule 30.20 unless “the appellant's request for plain error review establishes facially substantial grounds for believing that the trial court's error was evident, obvious, and clear and that manifest injustice or miscarriage of justice has resulted.” State v. Jones, 725 S.W.3d 577, 583 (Mo. banc 2025) (citation omitted).

Double jeopardy claims, like other constitutional claims, must be raised at the earliest opportunity and preserved at each step of the proceedings. State v. Duncan, 717 S.W.3d 626, 631 (Mo. App. 2025). When a double jeopardy allegation is determinable from the face of the record, however, it can be reviewed for plain error because “[t]he right to be free from double jeopardy is a constitutional right that goes to the very power of the State to bring the defendant in the court to answer the charge brought against him.” State v. Neher, 213 S.W.3d 44, 48 (Mo. banc 2007); see State v. Onyejiaka, 671 S.W.3d 796, 798 (Mo. banc 2023).

Discussion and Decision

Defendant contends the trial court plainly erred by imposing sentences for first-degree assault, unlawful use of a weapon, and the accompanying ACA counts because § 556.041 creates a double jeopardy prohibition when one statue prohibits certain conduct “generally” and another statute prohibits “a specific instance” of such conduct.² In relevant part, this statute states:

When the same conduct of a person may establish the commission of more than one offense he or she may be prosecuted for each such offense. Such person may not, however, be convicted of more than one offense if:

․

(3) The offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct[.]

§ 556.041(3).

Defendant argues that “[t]he general-specific prohibition applies” because assault in the first degree “prohibits injuring a person by any means” while unlawful use of a weapon “prohibits injuring a person by shooting at a car.” This argument fails for the reasons we explained in State v. Layton, 736 S.W.3d 474 (Mo. App. 2026):

The test to determine whether two or more offenses are in fact a single offense for the purpose of Double Jeopardy was established nearly a century ago in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). “The same-elements test, sometimes referred to as the ‘Blockburger’ test, inquires whether each offense contains an element not contained in the other[.]” [U.S. v.] Dixon, 509 U.S. [688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993)].

[T]he Supreme Court of Missouri has adopted the same elements test and has rejected the same conduct test.

The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. If each crime requires proof of a fact the other does not, and the defendant is convicted of both, double jeopardy is not violated. Multiple punishments are permissible if the defendant has in law and in fact committed separate crimes.

State v. Collins, 648 S.W.3d 711, 719 (Mo. banc 2022)[.] “The focus is on the elements of the offenses at issue, not the underlying conduct that resulted in the defendant being charged.” State v. Daws, 311 S.W.3d 806, 808 (Mo. banc 2010) (citing Dixon, 509 U.S. at 704, 113 S.Ct. 2849). “The elements of a crime are found only in the statute creating that crime.” State v. Winter, 719 S.W.3d 738, 745 (Mo. banc 2025) (citing § 556.026).

Layton, 736 S.W.3d at 479-80; see also Blockburger v. United States, 284 U.S. 299, 304 (1932).

“With respect to cumulative sentences imposed in a single trial, the Double Jeopardy clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” State v. Hardin, 429 S.W.3d 417, 421 (Mo. banc 2014). Our analysis regarding multiple punishments is limited to determining whether the legislature intended cumulative punishments. State v. Collins, 648 S.W.3d 711, 719 (Mo. banc 2022). Defendant argues that the general-specific prohibition test is distinct from the Blockburger same-elements test, based upon this Court's prior decision in State v. Dailey, 708 S.W.2d 220 (Mo. App. 1986). We disagree.

In Dailey, the defendant was convicted of stealing by deceit, pursuant to § 571.030.1 RSMo Supp. (1984), and the unlawful sale of a security, pursuant to § 409.101(2) RSMo (1978). The Dailey court engaged in no double jeopardy analysis. Instead, the opinion involved only statutory construction. We held that the defendant's fraudulent misstatements about the stock he sold “supplied the ultimate proof of fraudulent conduct necessary to make a submissible case on the general misconduct charge (stealing by deceit), as well as the specific misconduct charge (unlawful sale of securities). This being so, the dual submission was in violation of the statute and was error.” Dailey, 708 S.W.2d at 222.

Defendant's reliance on Dailey is misplaced because: (1) that decision has been implicitly overruled by controlling precedent from our Supreme Court; and (2) other appellate decisions have declined to use its analysis.

The rationale used in Dailey was rejected by our Supreme Court in State v. Villa-Perez, 835 S.W.2d 897 (Mo. banc 1992). There, the defendant argued that his convictions for possession of marijuana and transporting marijuana constituted double jeopardy because each rested on the same set of circumstances. Id. at 903. The Court reviewed § 556.041 RSMo (1986) and determined that subdivision (3), regarding general and specific statutory prohibitions, did not apply. Instead, the Court applied the Blockburger test and decided that the defendant's convictions did not constitute double jeopardy because each offense required proof of an element which the other did not require. Villa-Perez, 835 S.W.2d at 903-04.

Other decisions of this Court declining to follow Dailey include State v. Pilousek, 747 S.W.2d 766, 769-70 (Mo. App. E.D. 1988) (the language of § 556.041(3) RSMo (1986) required a court to review the language and interrelationship of the two statutes, not the factual application of the statutes in a given case); State v. Kriebs, 978 S.W.2d 460, 468 (Mo. App. S.D. 1998) (defendant's argument that his conviction of possessing marijuana and producing marijuana violated § 556.041(3) RSMo (1994) lacked merit because of the holding in Villa-Perez); State v. Royal, 703 S.W.3d 650, 666 (Mo. App. W.D. 2024) (“court's approach in Dailey was summarily rejected in a later case and has not been utilized by any Missouri court since”); and State v. Howard, 713 S.W.3d 622, 631 (Mo. App. W.D. 2025) (“We recently considered this same argument and joined the Eastern District of this Court in rejecting Dailey.”). For all of the foregoing reasons, Dailey is not good law and should no longer be followed.

When analyzing a claim for double jeopardy, courts must first look at the statutes upon which the defendant's convictions were based to determine whether the legislature intended cumulative punishment. Villa-Perez, 835 S.W.2d at 903. Neither § 565.050.1 nor § 571.030.1 address whether the legislature intended cumulative punishment, so we are required to review the general intent regarding cumulative punishment set forth in § 556.046. Subdivisions (1) and (3) of this statute each require the application of the same-elements test articulated in Blockburger to determine if two crimes constitute the same offense for double jeopardy purposes. Collins, 648 S.W.3d at 719; Villa-Perez, 835 S.W.2d at 903-04. “Where the elements of two offenses are separate and distinct, neither offense is a specific instance of the other and section 556.041(3) does not preclude conviction for both offenses.” State v. Porter, 464 S.W.3d 250, 256 (Mo. App. 2015); see Howard, 713 S.W.3d at 630.

In applying the Blockburger test to the case at bar, a person “commits the offense 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; State v. Harris, 684 S.W.3d 385, 389 (Mo. App. 2024). On the other hand, a person “commits the offense of unlawful use of weapons ․ if he or she knowingly ․ [d]ischarges or shoots a firearm at or from a motor vehicle[.]” § 571.030.1(9). First-degree assault and unlawful use of a weapon each contain an element the other does not.

To convict Defendant of first-degree assault required proof that Defendant either attempted to kill, knowingly caused serious physical injury, or attempted to cause serious physical injury to Victim. This charge did not require the State to prove that Defendant used a firearm. Similarly, the charge of unlawful use of a weapon required the State to prove that Defendant discharged a firearm, but it did not require proof that Defendant caused serious physical injury. Thus, because the elements of first-degree assault and unlawful use of a weapon are separate and distinct, Defendant's convictions do not violate Blockburger or § 556.041(3). Likewise, the two accompanying ACA counts do not constitute double jeopardy because the legislature specifically intended cumulative punishments for this offense, so long as the underlying felonies are separate crimes. See, e.g., State v. Anderson, 539 S.W.3d 823, 829 (Mo. App. 2017).³

Because Defendant has failed to establish facially substantial grounds for believing that the trial court committed an evident, obvious, and clear error when it sentenced Defendant, his point is denied.

The judgment of the trial court is affirmed.

FOOTNOTES

1.   References to Chapter 565 are to RSMo (2016). References to § 571.015 and § 571.070 are to RSMo Cum. Supp. (2020); and references to § 571.030 are to RSMo Cum. Supp. (2021), unless otherwise specified. All rule references are to Missouri Court Rules (2025).

2.   All references to Chapter 556 are to RSMo (2016), unless otherwise specified.

3.   Section 571.015 provides, in relevant part, that “[a]ny person who commits any felony under the laws of this state by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon is also guilty of the offense of armed criminal action[.]” § 571.015.1. Further, “[t]he punishment imposed pursuant to this subsection shall be in addition to any punishment provided by law for the crime committed by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon.” Id.

JEFFREY W. BATES, J.

JENNIFER R. GROWCOCK, J., CONCUR JOSEPH L. HENSLEY, J., CONCUR