State v. Burse

• Decision Date: 19 June 2007
• Docket Number: No. ED 88666.,ED 88666.
• Citation: 231 S.W.3d 247
• Parties: STATE of Missouri, Respondent, v. Ben BURSE, Appellant.
• Court: Missouri Court of Appeals

231 S.W.3d 247

STATE of Missouri, Respondent, v. Ben BURSE, Appellant.

No. ED 88666.

Missouri Court of Appeals, Eastern District, Division Two.

June 19, 2007.

Motion for Rehearing and/or Transfer to Supreme Court Denied August 13, 2007.

Application for Transfer Denied September 25, 2007.

Matthew M. Ward, Assistant Public Defender, Columbia, MO, for appellant.

Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.

PATRICIA L. COHEN, Judge.

Introduction

Ben Burse ("Defendant") appeals from the trial court's judgment entered in the Circuit Court of Monroe County, after a bench trial, upon his conviction of two counts of assault of a law enforcement officer in the first degree, two counts of armed criminal action and one count of tampering in the first degree, in violation of sections 565.081, 569.080, and 571.015.¹ Defendant contends the trial court erred in overruling his Motion for Judgment of Acquittal at the close of the State's evidence, because the evidence was insufficient to prove Defendant guilty beyond a reasonable doubt on all counts. We hold that there was sufficient evidence to support Defendant's convictions, and accordingly, affirm.

Statement of Facts and Proceedings Below

Viewed in the light most favorable to the verdict, the evidence at trial establishes that, on August 7, 2005, at about 1:15 a.m. in Hannibal, Missouri, Officer Andrew Tripp pulled Defendant over for speeding. Once Officer Tripp had initiated the traffic stop, Defendant exited and began walking towards Officer Tripp. Officer Tripp instructed Defendant to return to his car and Defendant complied. Officer Tripp then approached the car and spoke with Defendant and his two passengers. After obtaining Defendant's name and additional information from all three occupants of the car, Officer Tripp observed Defendant reach under the front seat of the car and ordered Defendant to keep his hands where he could see them.

Officer Tripp next looked inside the vehicle and saw a baggie containing a white powdery substance located inside the recess of the door handle, partially covered by Defendant's arm. Officer Tripp reached into the vehicle, removed the bag and walked back to his patrol car to radio for assistance. Within a few minutes, Officer Brooks arrived and parked behind Officer Tripp's patrol car. While Officer Tripp and Officer Brooks discussed the situation, Defendant told his companions that he was counting to three and then he "was going to make a break for it." Defendant jumped out of the car, looked at the officers, and ran. He fled diagonally across the bridge to the far side, jumped over the guard rail and ran down into the ditch under the bridge. Officer Tripp immediately began following Defendant into the ditch and, after arriving on the scene, Officers Johnston and Officer Burgun joined Officer Tripp and the three went down the embankment and into the woods, while Officer Brooks remained with the other two passengers of the vehicle.

The patch of woods entered by Defendant was thick with trees and underbrush in some areas, and clear with gravel and a stream in others. As the officers searched the woods, Officer Tripp stayed the closest to the bridge, while Officer Johnston and Officer Burgun each walked a little further out respectively. The officers searched with flashlights and kept their guns drawn. While each could hear the other's footsteps, none of the three could hear any other movement in the woods. Defendant had hidden himself in the woods by the bridge and, when Officer Tripp approached the area in which he was hiding, Defendant aimed his .38 caliber revolver in Officer Tripp's direction and fired the weapon. Although the officers neither felt, saw, nor heard the bullet coming towards or near them, all three heard the revolver discharge and took cover.

Officer Johnston approached Officer Tripp to ascertain if he had been injured and, upon determining that the shot had missed Officer Tripp, left him behind the tree and proceeded toward the bridge. When Officer Johnston reached Officer Tripp's position at the time of the shot, Defendant aimed his .38 revolver at Officer Johnston and fired. As Defendant fired at Officer Johnston, Officer Johnston heard the shot, and saw the "muzzle blast" from the end of the gun and the silhouette of Defendant's arm extended, pointing towards him, in the light from the blast. Officer Johnston ran for cover. The officers called for backup and upon the arrival of additional officers, a K-9 unit and a helicopter, a search of the woods ensued. No bullets, bullet casings or bullet fragments were found.

Meanwhile, Defendant ran through the woods until he reached the home of Ms. Jessica Wells, approximately five minutes away. Defendant found a key to Ms. Wells' truck and, after several attempts, started the truck and drove it away at approximately 2:00 a.m. Ms. Wells' neighbor, Ms. Utley, heard the truck start and saw it drive away at some time between 1:30 and 2:00 a.m., but could not identify the driver. The next morning Ms. Wells discovered her truck missing and called the police to report it stolen.

Defendant drove Ms. Wells' truck from Hannibal to Louisiana, Missouri, and left the truck on property owned by a relative. He then went to another nearby relative's house and while there spoke to his brother, Jameel Chatman, and a cousin. According to Mr. Chatman, Defendant told him, among other things that he fired twice in the direction of police officers while he was running away in the woods.

By 7:00 p.m. on August 7, the police discovered Defendant's location and surrounded the house. Defendant attempted to run from police but was eventually subdued. Police officers arrested Defendant, searched him and found three .38 caliber bullets in his pockets. Officers transported Defendant to Pike County Jail. Police officers later located Ms. Wells' stolen truck a block from Defendant's location. In the truck, they discovered lying on the middle of the bench seat a .38 caliber five-shot revolver, fully loaded with .38 caliber hollow-point ammunition.²

The following day, Detective Weber of the Hannibal Police Department interviewed Defendant at the jail. After receiving his Miranda³ warnings, Defendant made several statements, including: "what difference does it make to give a statement;" "[I'm a] three time loser;" and "[i]t's going to come down that I did it anyway." Detective Weber also spoke with Defendant's brother, Mr. Chatman, at the Louisiana Police Station. During the interview, Mr. Chatman stated that Defendant had told him and his cousin about the shooting. Mr. Chatman also signed two written statements confirming that Defendant told him that he "shot toward an officer and then another."

Defendant waived his right to a jury trial and the case proceeded before the bench. At the bench trial, the State asked Officer Tripp and Officer Johnston to give their opinions as to which caliber of gun they had heard in the woods. Officer Tripp stated that the gun he heard in the woods was between a .22 caliber and a .45 caliber. Officer Johnston testified that the gun he heard in the woods was either a .32 or a .38 caliber and that "I felt that it was a .38."

The State next called Mr. Chatman to the stand. Mr. Chatman testified that he had never spoken to Defendant about the incident in question. He further claimed that he had not seen Defendant on August 7, 2005, the police made up everything in his statement, and he had only signed the statement because the police promised he could go free if he did. Thereafter, the State introduced Mr. Chatman's prior statements into evidence.

At the conclusion of the State's case, Defendant moved for Judgment of Acquittal. The trial court denied Defendant's Motions for Judgment of Acquittal and found Defendant guilty of all charges. At the sentencing hearing, the court sentenced Defendant to twenty-five years of imprisonment for each assault and armed criminal action count and five years of imprisonment for tampering, with the assault and armed criminal action counts running consecutively and the tampering count running concurrently. Defendant appealed.

Standard of Review

The standard of review in a bench-tried case is the same as in a jury-tried case. State v. Johnson, 81 S.W.3d 212, 215 (Mo. App. S.D.2002). We will affirm a trial court's denial of a motion for judgment of acquittal if, at the close of evidence, there was sufficient evidence from which reasonable persons could have found the defendant guilty of the charged offense. State v. Small, 873 S.W.2d 895, 896 (Mo.App. E.D.1994). "When reviewing the sufficiency of the evidence, we review all evidence and inferences reasonably draw from the evidence in the light most favorable to the verdict and disregard all contrary evidence and inferences." State v. Berry, 54 S.W.3d 668, 675 (Mo.App. E.D.2001). "The trier of fact determines the credibility of the witnesses, and may believe all, some or none of the testimony of a witness." State v. Warren, 141 S.W.3d 478, 490 (Mo.App. E.D.2004). The function of the reviewing court is not to reweigh the evidence, but only to determine if the evidence is supported by sufficient evidence. State v. McCleod, 186 S.W.3d 439, 443 (Mo.App. W.D.2006).

Discussion

A. Sufficiency of the Evidence/Assault

In his first point, Defendant claims the trial court erred when it denied his Motion for Judgment of Acquittal at the close of the State's case-in-chief, because there was insufficient evidence to prove that Defendant had intended to kill or cause serious physical injury to Officer Tripp and Officer Johnston.

A defendant is criminally liable for assault of a law enforcement officer in the first degree if he attempts to kill or knowingly causes or attempts to cause serious physical injury to a law enforcement officer. Section 565.081. "One attempts to commit an offense when, with the purpose of committing the offense, he does...