State Of Mo. v. Burton

• Decision Date: 31 August 2010
• Docket Number: No. ED 93331.,ED 93331.
• Citation: 320 S.W.3d 170
• Parties: STATE of Missouri, Respondent,v.Victor D. BURTON, Appellant.
• Court: Missouri Court of Appeals

320 S.W.3d 170

STATE of Missouri, Respondent,v.Victor D. BURTON, Appellant.

No. ED 93331.

Missouri Court of Appeals,

Eastern District,

Division Three.

Aug. 31, 2010.

COPYRIGHT MATERIAL OMITTED

Gwenda Renee Robinson, St. Louis, MO, for appellant.

Chris Koster, Atty. Gen., Jayne T. Woods, Jefferson City, MO, for respondent.

CLIFFORD H. AHRENS, Judge.

Victor Burton (“Defendant”) appeals from the judgment of the trial court entered after a jury convicted him of first-degree domestic assault (“Count I”), a felony, and violation of an order of protection (“Count II”), a misdemeanor. He contends that the trial court clearly erred in denying his motions for a judgment of acquittal because the evidence was insufficient to prove his guilt on Count II. He also argues that the trial court abused its discretion in admitting evidence of his prior battery. We affirm in part and reverse in part.

Viewed in the light most favorable to the judgment, the evidence is as follows. Defendant and J.J. began a romantic relationship in May 2006, and eventually lived together in Illinois. In December 2006, Defendant and J.J. argued, and he stabbed her in the hand, which required surgery to repair the damage to the tendons. This incident resulted in Defendant going to jail. J.J. relocated to Granite City, Illinois, and obtained an order of protection against Defendant from the Circuit Court of Madison County, Illinois (“Illinois Order”), on January 25, 2007, which was effective until January 24, 2009. The relationship continued for a time, purportedly because J.J. feared Defendant. J.J. ended the relationship and relocated without informing Defendant of her new residence in early 2008, but kept encountering him. On April 13, 2008, while sitting outside of her place of employment in the City of St. Louis, waiting for the business to open, she saw Defendant sitting about a block away. Later that day, Defendant entered J.J.'s workplace and demanded to speak with her. She talked to him outside, and he left. He returned shortly before J.J.'s shift ended, demanded to speak with her, and threatened to kill the husband of J.J.'s employer if he could not talk with her. The police were called, and arrested Defendant for violation of the Illinois Order, which was still in force.

On April 23, 2008, J.J. stopped off at a career center on her way to work. Defendant was at the career center, and followed her out as she left. She told him to leave her alone, but he followed her onto the bus, sitting next to her as she rode to work. J.J. repeatedly told him to leave her alone. When she got off the bus, Defendant exited the bus as well. They began arguing loudly. Defendant punched J.J., knocking her to the ground, and then proceeded to kick her in the head, and even jumped off the curb onto her head. Jeffrey Williams heard the argument and saw Defendant beating J.J., and another witness, Connie Kleinhanf, saw Defendant jumping up and down on J.J.'s head, and heard him curse and say “I'm going to kill you.” Kleinhanf approached J.J. and Defendant, trying to call 911 on her cell phone. Upon observing Williams and Kleinhanf, Defendant fled. Kleinhanf went to a store, had the clerk call the police, and tried to assist J.J. She noticed Defendant peering from around the corner of a nearby building while she helped J.J. When the police arrived, Williams and Kleinhanf told them where they had observed Defendant hiding, noting that he was wearing a purple jacket. The police found Defendant nearby, a purple jacket nearby on the ground, and brought him back to the scene, where Williams and Kleinhanf identified him as J.J.'s assailant. There was blood on Defendant's tennis shoes, which tests later identified as belonging to J.J.

The Grand Jury indicted Defendant on Count I, first-degree domestic assault in violation of section 565.072 RSMo 2000 for the incident of April 23, 2008.¹ It also indicted him in Count II for violating the Illinois Order on April 13, 2008, by going to J.J.'s workplace and calling her a vulgar name, having knowledge of the Illinois Order, in violation of sections 455.010, 455.050, and 455.085.

At trial, J.J. testified about the incidents of April 13, 2008 and April 23, 2008. She was unable to testify about the actual assault on April 23, 2008, because she suffered permanent short-term memory problems stemming from that incident. She testified about the stabbing incident in December 2006 that preceded her seeking and obtaining the Illinois Order. She did not testify that Defendant knew about the Illinois Order, or that she ever told him about it or its contents. The State of Missouri did not enter a certified copy of the Illinois Order into evidence, nor did it introduce any evidence of proof of service of the Illinois Order to Defendant. Rather, The State and defense counsel stipulated that there was a valid order of protection granted on January 25, 2007, which was in effect until January 24, 2009, which stipulation was entered into evidence as Exhibit 1, and read to the jury by the trial court. The stipulation stated that:

Comes now both parties stipulate that [J.J.] was granted an order of protection by the Circuit Court of Madison County, Illinois on January 25, 2007. The parties further stipulate that said order was active and in effect April 13, 2008, and did not expire until January 24, 2009. The order required Victor Burton to have no direct or indirect contact with [J.J.].

The stipulation notably did not state that Defendant had been served with a copy of the Illinois Order or that he knew of it and its contents as of April 13, 2008.

Williams and Kleinhanf testified about the argument and assault on J.J. on April 23, 2008, and identified Defendant as her assailant. A surgeon who treated J.J. for her injuries testified. Several members of the City of St. Louis Police Department also testified, with their testimony addressing the apprehension of Defendant after the incident on April 23, 2008, and the matching of J.J.'s DNA to that found covering Defendant's tennis shoes that he was wearing when apprehended. Defendant did not testify. Defense counsel moved for a judgment of acquittal at the close of the State's evidence, which the trial court denied.

During its deliberations, the jury sent several questions to the trial court regarding the Illinois Order. The first question asked “was defendant aware of the protection order from Madison County?” This, and the other questions, led to a discussion on the record between the trial court, the prosecutor, and defense counsel, as follows in part:

Trial Court: ... Well, do you have any suggestions? I have Exhibit 1 here but you know, in your learned latitude I gave to you to prepare the stipulation, you didn't indicate anywhere in that that he knew or was served with the order.

Prosecutor: That's true.

Trial Court: I don't know if he was served with it or not.

Prosecutor: It is in the certified court file that he was served with the order. But obviously I did fail to put that in the stipulation.

Trial Court: And it's not evidence before the jurors. So, do you have any suggestions as to a response to number one? I almost feel like saying who know [sic]?

Prosecutor: I mean I would suggest as to all of the questions I think the standard answer is just the jury will be guided by the evidence as it was submitted.

I believe [J.J.] did testify regarding whether or not he know about the order, but again, I don't-

Trial Court: I don't remember that.

Prosecutor: And maybe I am mistaken about that.

Trial Court: There may have been an inference. She may have given a conclusion of some sort. I won't say that in the totality of the evidence maybe I didn't get it....

The trial court simply informed the jury to consider the law and the evidence presented to it during the trial, and did not answer any of the questions sent to it. The jury returned verdicts of guilty on Count I and Count II. The trial court sentenced Defendant as a prior offender to a term of sixteen years' imprisonment for Count I, and a term of one year's imprisonment for Count II to run concurrently with the sentence for Count I. Defendant now appeals from this judgment.

In his first point relied on, Defendant contends that the trial court clearly erred in overruling his motions for a judgment of acquittal because the evidence was not sufficient to prove him guilty on Count II in that the State failed to prove beyond a reasonable doubt that he had notice of the Illinois Order prohibiting him from having contact with J.J., direct or indirect.

In reviewing a sufficiency of the evidence claim, this Court determines whether sufficient evidence permits a reasonable trier of fact to find guilt. State v. Ecford, 239 S.W.3d 125, 127 (Mo.App.2007) (quoting State v. McCoy, 90 S.W.3d 503, 505 (Mo.App.2002)). We view the evidence and the inferences therefrom in the light most favorable to the verdict, and disregard all evidence and inferences to the contrary. Id. However, this Court cannot provide missing evidence or give the State the benefit of speculative, unreasonable, or forced inferences. State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001). The State has the burden of proving each and every element of the charged offense beyond a reasonable doubt. Ecford, 239 S.W.3d at 127. There cannot be a conviction “ ‘except upon evidence that is sufficient to support a conclusion that every element of the crime has been established beyond a reasonable doubt.’ ” Woolford v. State, 58 S.W.3d 87, 89 (Mo.App.2001) (quoting Jackson v. Virginia, 443 U.S. 307, 314-15, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

Section 455.085 provides that a violation of the terms and conditions of either an ex parte order of protection and a full order of protection is a class A misdemeanor, unless the respondent had previously pleaded guilty or been found guilty of a prior violation of an order of protection within five years of the subsequent violation, in which circumstance the...