J---- M----, In Interest of, No. 16998
| Decision Date | 09 July 1991 |
| Docket Number | No. 16998 |
| Citation | 812 S.W.2d 925 |
| Parties | In the Interest of J____ M____, a child under seventeen years of age. J____ M____, Appellant, v. Leon WALLACE, Juvenile Officer of Jasper County, Respondent. |
| Court | Missouri Court of Appeals |
Phillip A. Glades, Joplin, for appellant.
Trina J. Scott, Joplin, for respondent.
The Juvenile Officer of Jasper County filed a petition praying the Juvenile Division of the Circuit Court of that county to exercise jurisdiction over J____ M____ ("J____"), date of birth December 5, 1973, per § 211.031.1(3), RSMo Cum.Supp.1989, 1 because J____, in violation of § 565.050, RSMo 1986, committed the class A felony of assault in the first degree, in that on or about January 28, 1990, he "knowingly caused serious physical injury to Chad Ward by repeatedly beating his head into the driveway."
The Juvenile Division, henceforth referred to as "the trial court," conducted an evidentiary hearing at which J____ and his parents appeared, represented by counsel. Thereafter, on April 26, 1990, the trial court entered an order taking jurisdiction of J____. 2
At a subsequent "disposition" hearing, the trial court placed J____ on probation subject to certain conditions including specified community service and restitution to the victim for medical expenses and lost wages.
J____ appeals, presenting four assignments of error. The first asserts the trial court failed to make some essential findings. The other three challenge the sufficiency of the evidence to establish guilt of assault in the first degree.
In determining whether the evidence was sufficient to support a finding that J____ was guilty of the alleged assault, we treat the trial court's finding as equivalent to a jury verdict, and we consider the evidence and inferences to be drawn therefrom in the light most favorable thereto. In re Fisher, 468 S.W.2d 198, 199-200 (Mo.1971).
The events culminating in the alleged assault began some time earlier. Chad Ward, born January 28, 1971, admitted he had not liked J____ "for a long period of time." Ward had told others this, and had said he wanted to fight J____.
J____, almost three years younger than Ward, testified he had been afraid of Ward since he (J____) was 13 or 14.
An incident illustrating the precarious relationship occurred in December, 1989. Ward was "out riding around" with three other young men: Casey Cole, Danny Clemons, and Jason James. They "pulled up" behind an automobile driven by Amy Cupp. Chris Torres was in the passenger seat of Amy's vehicle; J____ was in the back seat with Julie Dunn, described as James' "girlfriend."
J____ testified James "got out of his car and ... took a ... can of beer and just smashed it on the back of Amy Cupp's window."
Amy drove to a grocery store, pulled into the parking lot, and Julie got out. Amy and her remaining passengers departed.
Julie entered the car occupied by James, Ward, and their companions. She told James that Amy and her passengers were going to a party "in Sunnyvale."
James, Ward, Cole and Clemons, accompanied by Julie, drove to the Sunnyvale address. Ward testified, "We got out of the car and we went up there, and then some guys came out." The "guys" included Steve Davis and J____.
James and J____ "started exchanging words." According to Cole, James was jealous because J____ had been sitting beside Julie in Amy's car.
J____ testified:
Ward testified Steve Davis' older brother came outside and told Ward and his companions to leave "because he didn't want nothing going on at his house." Then, said Ward, "someone attacked me from behind." Ward did not see who.
There was conflicting evidence on the identity of the attacker. J____ testified he did not touch Ward. Cole testified he saw nothing happen between J____ and Ward. Clemons testified J____ pushed Ward down.
Ward got up and was angry. Clemons "got a hold of him and got him in the car." Clemons, Ward, Cole and James departed.
Another incident occurred December 30, 1989. J____ and Dorothy Duffy entered Dillon's grocery store to purchase some items for Dorothy's mother. Ward, who was employed there, approached them. Dorothy testified Ward yelled at J____, "I need to talk to you." According to Dorothy, J____ replied, "I don't think you spray painted my car." 3 Dorothy quoted Ward as saying he wanted to fight J____.
Ward testified the confrontation at Dillon's was the first time he had seen J____ since the Sunnyvale incident. Ward recounted he asked J____ about that incident, and J____ replied he had hit Ward only once. Then, said Ward, "I told him I ought to hit him, but I'm at work." Asked whether J____ said anything else, Ward responded, "He said he didn't want any trouble from me."
Cole testified he was present during the Dillon's incident. His testimony generally paralleled Ward's account. However, Cole also recalled J____ saying to Ward, "Well, I ought to kick your ass." Then, said Cole, J____ turned to him and remarked, "Man, I don't want to fight him."
J____ testified Ward said he got off work at ten o'clock and wanted J____ to meet him because "he was going to fight me." J____ added, "[Ward] called me dick and pussy, and he said he would hit me if he wasn't at work." Then, said J____, Ward started upstairs to the "break room." J____ told Ward he (J____) was not going to be there and was not going to fight him.
Mike Bower, a Dillon's employee, testified Ward screamed at J____ from the top of the stairs, "Just come back here at ten."
A third incident occurred on a night in mid-January, 1990. J____ and a friend, Bill McBride, drove into the parking lot at a bowling alley to see whether any friends' cars were there. A car pulled in and flashed its headlights. It was driven by Ward; Cole was a passenger.
J____ "took off as fast as I could." Ward and Cole gave chase, but ultimately abandoned it.
In their testimony, Ward and Cole admitted the pursuit. However, added Ward, "I only chased him for a couple of blocks." Cole recalled that when J____ fled, Ward said, "Well, I guess that's the end, he doesn't want to fight."
On Saturday night, January 27, 1990, Ward and Cole went to a "party" at a house in Joplin. Michelle Borusheski, "girlfriend" of Ralph McBride (older brother of Bill McBride) was "house sitting" the dwelling for the owners, who were evidently out of town. Ralph McBride arrived "approximately nine o'clock," after Cole and Ward.
The same evening J____ and a friend, Kye Young, both sophomores in high school, attended a basketball game. Afterward, they went to Bill McBride's place of employment. Bill, also a sophomore, joined the duo when he got off work at ten.
Bill, a member of the golf team, suggested they play the next day and his brother Ralph would play with them. Bill assumed Ralph was at the house Michelle was overseeing, so he suggested going there.
J____, Bill McBride, and Kye Young arrived at the house around 10:30. Cole answered the doorbell and, upon seeing J____, said, "Hey, J____, Chad is here."
Bill McBride and Kye Young entered. J____ "turned right around and left."
Kye Young testified Ward made "comments" about J____. Kye's testimony:
"Q. What names did he call him?
....
A. Dick head, that if he came back he was going to get him.
....
Q. Did he say anything about hating him?
A. Yeah, he said, you know, he hated him and he was going to get him, you know, and called him names, vulgar names."
Bill McBride also recalled remarks by Ward about J____. Bill's testimony:
"[Ward] was just saying that, you know, how he was going to kick his butt. But he used another word for it....
Q. How many times did he say he was going to kick his ass?
A. I couldn't really tell you.
Q. Did he say anything about hating him?
A. He just kept going on."
J____ "drove around" some 10 or 15 minutes, then returned to the house to pick up Bill McBride and Kye Young because they had no ride home.
Asked what occurred when J____ entered, Kye testified:
Bill and Ralph McBride confirmed Kye's account of the colloquy between J____ and Ward. Ralph added that after J____, Bill, and Kye departed, Ward said he "wanted to kick J____'s ass."
Cole testified Ward "had quite a bit to drink" at the party, as Ward was "celebrating because his birthday was Sunday."
Ward avowed he "was pretty much intoxicated." He recalled J____ and "another guy or two other guys" arriving, but "didn't pay any attention to them."
Upon leaving the party, J____ took Kye Young home. J____ then drove himself and Bill McBride to J____'s residence, arriving some 15 minutes after leaving the party. No one else was there when J____ and Bill went inside.
Meanwhile, according to Ralph McBride, Ward had telephoned J____'s home and left a message on the answering machine. It was "something like I am going to kick your ass, you're a dick, you're an a______, along those lines." 4
J____ testified that some time after arriving home he noticed the answering machine blinking. Upon listening to the message, he recognized Ward's voice. Asked to quote the message, J____ responded:
"He said, ... 'This is Chad and I'm going to kick your ass, and you're a dick and a f______ pussy.' And he went on and on just saying practically the same thing over and over again.
Q. On this occasion when you were listening to the answering machine, did he say anything ... about killing you?
A. Yeah, he said that repeatedly.
....
Q. Did this frighten you?
A. Yeah, he's bigger than me and older."
J____ told Bill McBride about Ward's message. Bill suggested J____ phone Ward and try to "settle...
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