State v. Bohannon, 16523

• Decision Date: 13 June 1990
• Docket Number: No. 16523,16523
• Citation: 793 S.W.2d 497
• Parties: STATE of Missouri, Respondent, v. Daniel R. BOHANNON, Appellant.
• Court: Missouri Court of Appeals

Page 497

793 S.W.2d 497

STATE of Missouri, Respondent, v. Daniel R. BOHANNON, Appellant.

No. 16523.

Missouri Court of Appeals,

Southern District,

Division One.

June 13, 1990.

Motion for Rehearing or Transfer to

Supreme Court Denied July 2, 1990.

Application to Transfer Denied Sept. 11, 1990.

J. Bryan Allee, Columbia, for appellant.

William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

CROW, Presiding Judge.

A jury found appellant Daniel R. Bohannon guilty of escape from confinement and the trial court sentenced him, as a persistent offender, to ten years' imprisonment.

Appellant presents two points relied on, the first of which consists of components "A" and "B." Component "A" avers the evidence was insufficient to support the verdict; component "B" alleges there was a "fatal variance" between the amended information on which appellant was tried and the proof at trial. Appellant's second point maintains the charge should have been dismissed for lack of a speedy trial.

In determining the sufficiency of the evidence to support the verdict we view the evidence and all inferences reasonably to be drawn therefrom in the light most favorable to the verdict, and disregard all contrary evidence and inferences. State v. Guinan, 665 S.W.2d 325, 327 (Mo. banc 1984), cert. denied, 469 U.S. 873, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984); State v. McDonald, 661 S.W.2d 497, 500 (Mo. banc 1983), cert. denied, 471 U.S. 1009, 105 S.Ct. 1875, 85 L.Ed.2d 168 (1985). The test is whether the evidence, so viewed, was sufficient to make a submissible case from which rational jurors could have found beyond a reasonable doubt that appellant was guilty. State v. Bonuchi, 636 S.W.2d 338, 340 (Mo. banc 1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1206, 75 L.Ed.2d 446 (1983); Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791-92, 61 L.Ed.2d 560, 576-77 (1979).

So viewed, the evidence establishes that on May 8, 1986, Laclede County Deputy Sheriff Courtney Nichols transported appellant from Illinois to the Laclede County jail pursuant to a Laclede County arrest warrant for "two counts of sexual assault." They arrived around 6:30 p.m. Nichols read appellant the warrant, filled out a "booking form," and turned appellant over to jailer David Coutcher.

Coutcher handed appellant some sheets, towels and a blanket, and they ascended two flights of stairs to the cell block. Coutcher opened the cell block door and entered. Appellant, who was behind Coutcher, threw the bedding and towels at Coutcher. A sheet enveloped Coutcher's head. Coutcher "hollered, help, escape." Asked what happened next, Coutcher answered, "I got the sheet off my head and then ran down the stairs and saw [Nichols] getting up, and [appellant] going out the [outside] doors there."

Nichols testified he heard someone running down the stairs, looked up, and saw appellant. Nichols explained: "I tried to stop him and wasn't too successful. He knocked me down going out the door."

Coutcher and Nichols pursued appellant, capturing him within 15 or 20 minutes.

Appellant was the only defense witness. His version of the episode differed substantially from the testimony of Coutcher and Nichols. Inasmuch as the evidence is to be viewed favorably to the verdict, we need not set forth appellant's account.

At the time of the occurrence the crime of escape from confinement was defined by § 575.210, RSMo 1986. ¹ It read, in pertinent part:

"1. A person commits the crime of escape ... from confinement if, while being held in confinement after arrest for any crime ... he escapes ... from confinement.

2. Escape ... from confinement is a class D felony except that it is:

....

(2) A class C felony if the escape ... is facilitated by striking ... any person."

The amended information charged appellant with the class C felony of escape from confinement in that his escape was "facilitated by striking Jailer David Coutcher with bedding, and or any other member of the Laclede County Sheriff's Office." ²

Component "A" of appellant's first point maintains the evidence was insufficient to support the verdict in that:

"... the only evidence of 'striking' presented at trial was that appellant threw bedding at sheriff's deputy Coutcher and that appellant knocked down sheriff's deputy Nichols without proof of physical injury. Such acts alone are not 'striking' within the meaning of section 575.210, RSMo 1986, and thus, the State failed to prove an essential element of the offense for which appellant was charged and convicted."

Appellant points out that "striking" is not statutorily defined in The Criminal Code. Appellant refers us to State v. Mace, 665 S.W.2d 655, 661 (Mo.App.1984), where the Western District of this Court utilized the definition of "striking" in Webster's Third New International Dictionary (1971), which provides that striking means, among other things, "to deliver a stroke, blow or thrust [as with the hand, a weapon or a tool]." Appellant also cites Webster's Ninth New Collegiate Dictionary (1987), wherein one of the definitions of "strike" is "to come into contact forcefully." According to appellant, such definitions indicate "some use of force to create an injury of some kind." Appellant asserts there was no evidence that Coutcher or Nichols sustained any "physical injury" as defined by § 556.061(20), RSMo 1986.

Appellant cites no case supporting his thesis that the striking must cause physical injury (as statutorily defined) in order to elevate the crime of escape from confinement to a class C felony under § 575.210.2(2). Nothing in the statute itself provides that physical injury is an element of the class C felony of escape from confinement. In order for escape from confinement to constitute a class C felony the statute requires only that the escape be facilitated by striking any person.

State v. Edsall, 781 S.W.2d 561 (Mo.App.1989), cited by appellant, is not in point. There the accused was charged with the class A misdemeanor of assault in the third degree. The statute defining that crime, § 565.070, RSMo 1986, provided that a person commits such crime if he attempts to cause or recklessly causes physical injury to another person.

Physical injury is unmentioned in the statute defining the class C felony of escape from confinement. Furthermore, MAI-CR 3d 329.74, the verdict-directing instruction for escape from confinement, contains no requirement that the jury find the defendant caused a person physical injury in order to return a verdict of guilty of the class C felony of escape from confinement. Appellant's contention that the evidence was insufficient in that it failed to show he caused Coutcher or Nichols physical injury is without merit.

Appellant also argues in connection with component "A" of his first point that the evidence was insufficient to support a finding that he "struck" anyone. According to appellant, neither Coutcher's testimony that a sheet landed on his head when appellant threw the bedding, nor Nichols' testimony that appellant knocked him down when he (Nichols) tried to prevent appellant from fleeing, was sufficient to establish that appellant's escape was facilitated by striking a person. Appellant again attempts to invoke Edsall.

Edsall is inapposite. There the information charged the accused with causing the victim physical injury by striking him with the accused's fists. The victim testified he did not know whether the accused "hit me, shoved me, or what." All the victim could say was that during a scuffle his feet came off the floor and he fell, landing on a shoulder and arm. There was no evidence that the accused struck the victim, either with the accused's fists or anything else. This Court held the evidence was insufficient to support a finding that the accused caused physical injury to the victim by striking him and that the accused could not be convicted of causing physical injury by striking the victim when the evidence showed, at best, only that the accused in some manner forced the victim to fall, possibly receiving an injury when he struck the floor. 781 S.W.2d at 565.

In the instant case Nichols did not equivocate. He testified, "[Appellant] knocked me down going out the door." On cross-examination Nichols flatly denied that he "lunged" at appellant and slipped. While Nichols failed to specify which part of appellant's anatomy struck which part of Nichols' anatomy, Nichols' testimony undeniably supports a finding that he was propelled from a standing position to the floor when appellant came into forceful contact with him, and that appellant was thereby able to get past him and escape. We hold that Nichols' testimony was sufficient to support a finding that appellant facilitated his escape by striking Nichols. That being so we need not, and do not, decide whether Coutcher's testimony that a sheet came to rest on his head when appellant threw the bedding is sufficient to support a finding that appellant facilitated his escape by striking Coutcher. Component "A" of appellant's first point is denied.

Component "B" of appellant's first point alleges the proof failed in that the only allegation of "striking" in the amended information was that he threw bedding at a sheriff's deputy, whereas the evidence showed only that appellant allegedly knocked Nichols down while escaping.

As noted earlier, the amended information alleged that appellant's escape was "facilitated by striking Jailer David Coutcher with bedding, and or any other member of the Laclede County Sheriff's Office." It is evident from appellant's argument that he construes the above allegation as an averment that the only "striking" he did was striking the deputies with bedding. Appellant argues the amended information never put him on notice that the State would endeavor to prove he facilitated his escape by knocking Nichols down. According to appellant, inasmuch as throwing bedding was the only "striking"...