State v. Baumann

• Decision Date: 28 March 2007
• Docket Number: No. 27713.,No. 27712.,27713.,27712.
• Citation: 217 S.W.3d 914
• Parties: STATE of Missouri, Respondent, v. Darrell L. BAUMANN, Appellant.
• Court: Missouri Court of Appeals

217 S.W.3d 914

STATE of Missouri, Respondent, v. Darrell L. BAUMANN, Appellant.

No. 27713.

No. 27712.

Missouri Court of Appeals, Southern District, Division Two.

March 28, 2007.

Thomas E. Klinginsmith, Carthage, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jaime Wilson Corman, Asst. Atty. Gen., Jefferson City, for respondent.

ROBERT S. BARNEY, Judge.

Darrell L. Baumann ("Appellant") was convicted following a jury trial for the class C felony of tampering with a motor vehicle in the first degree, a violation of section 569.080.1(2); the unclassified felony of armed criminal action, a violation of section 571.015, involving the use of a "dangerous instrument," a knife; and the class A misdemeanor of violation of an order of protection, a violation of section 455.085.¹ The trial court sentenced Appellant to three years in the Missouri Department of Corrections for armed criminal action and one year in the Jasper County Jail for violating the order of protection with the latter sentence running consecutive to the three year sentence for armed criminal action. Appellant was also fined $5,000.00 for tampering with a motor vehicle and $1,000.00 for violating the order of protection.

Appellant raises two points of trial court error in this consolidated appeal. In his point relied on in his first appeal, number 27712, Appellant maintains the trial court erred in denying his motion for judgment of acquittal as to the armed criminal action charge because there was insufficient evidence to prove beyond a reasonable doubt that "the knife used at the time of the damage to the van's tires was ... a dangerous instrument or deadly weapon as required by [section] 571.015.1 ...."² In his point relied on in his second appeal, number 27713, Appellant maintains the trial court erred in denying his motion for judgment of acquittal because there was insufficient evidence to prove beyond a reasonable doubt that he violated a protective order entered in favor of Rodney Bray ("Mr. Bray") "in that the State failed to establish that [Appellant] entered upon a premises where [Mr. Bray] resided or that he entered the United States Post Office at 101 N. Main Street, in Joplin, Missouri."

Viewing the evidence in the light most favorable to the jury's verdict, State v. Hunter, 179 S.W.3d 317, 318 (Mo.App. 2005), the record reveals that on July 1, 2003, Mr. Bray, the Postmaster of Joplin, Missouri, obtained an order of protection against Appellant, a former post office employee.³ The order of protection prohibited Appellant from "enter[ing] or stay[ing] upon the premises ... [l]ocated at ... 101 N. Main Street, Joplin and 3115 S. Main, Joplin" and "enter[ing] the United States Post Office at 101 N. Main Street, Joplin, Mo. nor 3115 S. Main Street, Joplin, Mo."⁴ Mr. Bray renewed the order of protection "in 2004 and 2005."

On March 10, 2004, at approximately 12:59 a.m., Pamela Holtsman ("Ms. Holtsman"), a post office employee, arrived "[i]n front of the Post Office [at 101 N. Main Street, Joplin] down at the very bottom of the hill ..." and stopped her vehicle. She was scheduled to commence her night shift at the Post Office. Ms. Holtsman then noticed a man wearing a "gray hoodie sweatshirt," a "blue jean jacket," gloves and a "dark colored" mask approach the post office's employee parking lot. Ms. Holtsman recognized the man to be Appellant because she had worked with him for eight years. Ms. Holtsman testified that Appellant "backed up to the concrete wall [in the post office employee parking lot] ... and he kind of squatted down [next to a white van parked there], and he took his hand towards the back tire and he kind of did this to it [six to ten times], and the van went down." She reported Appellant then "went to the front of the van and he did the same thing. Then he went around to the other side, and I can't say that I saw him do it, but as the van went down you kind of could tell that he was puncturing the tires." Appellant then walked across the street.

Ms. Holtsman called 911 on her cell phone and the police dispatcher asked her if the person she saw was Appellant to which Ms. Holtsman answered in the affirmative. Ms. Holtsman was told by the police dispatcher to follow Appellant and she did so but "kind of lost sight of him." The police arrived shortly thereafter. After Appellant was apprehended by police, Ms. Holtsman identified him as the man she saw slashing the van's tires in the employee parking lot of the post office.

Officer Travis Walthall ("Officer Walthall") of the Joplin Police Department testified that he was dispatched to the post office on the night in question due to Ms. Holtsman's call "that there was some property damage being done on the lot." He reported Ms. Holtsman told the dispatcher "that she thought it was an ex-employee, [Appellant]." Officer Walthall testified that as he approached the post office he encountered Appellant's vehicle leaving the area "at a high rate" of speed with its lights off and he turned on his lights and sirens. Officer Walthall initiated a traffic stop of Appellant. Upon making contact with Appellant, Officer Walthall discovered the name on Appellant's driver's license matched the name he had been given by dispatch as the name of the suspect in the post office incident and the clothing description he had been given by dispatch matched that of Appellant. Officer Walthall placed Appellant under arrest and discovered "a six inch folding knife" in his pocket. Additionally, Officer Walthall found "a dark colored stocking cap" "with three holes" and "a pair of gloves" in Appellant's vehicle as well as a can of black spray paint. Officer Walthall then took Appellant back to the post office where Ms. Holtsman identified him as the man she saw slashing the tires on the white van. In his examination of the van, Officer Walthall discovered all four of the van's tires had been punctured and "the passenger side of the vehicle had also been spray painted with black paint."

Paul Light ("Mr. Light") testified that he is a "mail contractor" for the United States Postal Service and is the owner of the white van vandalized by Appellant. He stated that he received a call on March 10, 2004, that the tires on one of his vans had been slashed and there had been graffiti painted on it. He stated the approximate damage to the van was $300.00.

At trial, Appellant offered the alibi testimony of his girlfriend, Nora Madda ("Ms. Madda"). Ms. Madda testified that on the evening of March 10, 2004, Appellant arrived at her house at between 7:30 and 8:00 in the evening and stayed until after 1:00 a.m.

At the close of all the evidence, the jury found Appellant guilty of tampering with a motor vehicle in the first degree, violating a protective order, and armed criminal action, and was sentenced as previously set out. This appeal followed.

"`We review the denial of a motion for acquittal to determine if the State adduced sufficient evidence to make a submissible case.'" State v. Howard, 973 S.W.2d 902, 906 (Mo.App.1998) (quoting State v. Foster, 930 S.W.2d 62, 63 (Mo.App. 1996)). "Our standard of review is whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt." State v. Wright 998 S.W.2d 78, 81 (Mo. App.1999). The court must examine the elements of the crime and consider each in turn; reviewing the evidence in the light most favorable to the judgment, disregarding any contrary evidence; and granting the State all reasonable inferences from the evidence. State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001). We defer to the superior position of the jury to assess the credibility of witnesses and the weight and value of their testimony. State v. Nichols, 20 S.W.3d 594, 597 (Mo.App.2000).

APPEAL NO. 27712

In his sole point of trial court error in appeal number 27712, Appellant maintains the trial court erred in denying his motion for judgment of acquittal as to the armed criminal action charge because there was insufficient evidence to prove beyond a reasonable doubt that "the knife used at the time of the damage to the van's tires was ... a dangerous instrument or deadly weapon as required by [section] 571.015.1...." Appellant argues "under the circumstances of this particular case that there was never a showing [that he used the knife] with an intent [to cause] death or bodily harm." He maintains that the "mental state of knowingly or intentionally using the instrument to cause death or bodily harm is required to convert it from an innocent article to a dangerous instrument."

Section 571.015.1 states, in pertinent part, that "[e]xcept as provided in subsection 4 of this section, any 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 crime of armed criminal action...."⁵ Section 556.061(9) defines a dangerous instrument as "any instrument, article or substance, which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury...." (Emphasis added.) "`Serious physical injury' means physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body...." § 556.061(28).

There is no doubt that in the present matter Appellant used the knife at issue to commit the crime of tampering with a motor vehicle. The question for this Court to determine is whether "under the circumstances in which it [wa]s used" the knife was "readily capable of causing death or other serious physical injury ..." such that it was a dangerous instrument for purposes of the armed criminal action statute. § 556.061(9); § 571.015.1.

The key consideration in determining whether an object is a dangerous instrument per section 556.061(9) is whether it can kill or seriously injure "under...