State v. Christian
| Decision Date | 28 February 2006 |
| Docket Number | No. ED 84863.,ED 84863. |
| Parties | STATE of Missouri, Plaintiff/Respondent, v. Zivan CHRISTIAN, Defendant/Appellant. |
| Court | Missouri Court of Appeals |
Linda Lemke, Assistant Attorney General, Jefferson City, MO, for respondent.
Craig A. Johnston, Assistant Public Defender, Columbia, MO, for appellant.
Defendant, Zivan Christian, appeals from a judgment entered by the trial court after a jury found him guilty of felonious restraint, in violation of section 565.120 RSMo (2000), and burglary in the first degree, in violation of section 569.160 RSMo (2000). The trial court found defendant to be a prior and persistent offender and sentenced him to fifteen years imprisonment for felonious restraint and seventeen years imprisonment for burglary, to be served concurrently.
On appeal, defendant challenges the sufficiency of the evidence on both counts. He also claims the trial court plainly erred in allowing a police officer to testify to his statement. We affirm in part, reverse in part, and remand.
We view the facts in the light most favorable to the verdict. Victim, who was defendant's girlfriend, lived at a house in Wentzville, Missouri. On July 16, 2003, at approximately 9:00 a.m., defendant and victim began to argue. As the argument continued, defendant dragged victim by her hair, punched her in the face, hit her on her legs, back, and arms, threw her on the floor and threw her head against the concrete. Victim telephoned her sister twice to come pick up her and her children.
When victim's sister and a friend arrived, they heard victim and her daughter screaming, and they heard sounds of someone being thrown against the wall. Victim's daughter ran out to the car. When victim and her son tried to leave, defendant came out after them. Victim's sister told defendant she was going to call the police, and the friend called 911 and put victim's daughter into the car. While they were outside, defendant pulled victim's hair and punched her. After defendant took victim's son back into the house, victim went back in and retrieved her son. Defendant came out and threw rocks at the friend's car and chased her down the street.
The police department received a report of domestic violence at victim's house at approximately 11:30 a.m. or 12:00 p.m. that day. While the officers were responding, the dispatcher told them that defendant had outstanding warrants.
The officers arrived to find victim, who had bruises on her face and marks on her neck, crying and yelling in the front yard. She told the officers, "He held me, he held me, he wouldn't let me go." Victim told the officers that defendant had beat her, and she gave them a description of defendant. The officers went into the house to arrest defendant for the outstanding warrants and to investigate the assault, but defendant was not in the house.
Meanwhile, shortly before 12:00 p.m., defendant entered a neighbor's house. The neighbor's daughter heard footsteps and discovered a man, later identified as defendant, in the living room, holding an object that had been in her upstairs bedroom. Defendant told her, Defendant asked if he could hide in the basement, but the daughter said she did not want to get into trouble and told him no. At that point, the neighbor's daughter told defendant that she saw the neighbor's car pull into the driveway. When the neighbor came in, she saw defendant run out the back door. Defendant did not have permission to enter the neighbor's house.
After twenty to thirty minutes of searching the neighborhood on foot, one of the officers saw defendant standing on the sidewalk and arrested him for outstanding warrants and for domestic assault. Defendant told the officer that he ran because he knew he had "warrants." Defendant was transported to the St. Charles County jail, where he made a statement to the police.
While police were searching for defendant, an ambulance was called for victim, and she was treated by paramedics. Victim was later treated at the local emergency room, where she was given a CT scan, X-ray, tetanus shot and pain medication. Victim had swelling, marks, abrasions, bruises, and contusions on her face, right eye, right shoulder, and legs, which were photographed.
On November 26, 2003, defendant moved to suppress his post-arrest statement to police. On December 18, 2003, the court denied the motion to suppress after a hearing. The trial began on May 18, 2004. Defendant did not testify or offer any other evidence.
For his first point, defendant contends that the trial court erred in overruling his motion for judgment of acquittal at the close of all of the evidence because there was insufficient evidence to submit the felonious restraint count to the jury. Defendant argues that the state did not show that defendant exposed victim to a substantial risk of serious injury because she had minor injuries and did not suffer serious permanent disfigurement or protracted loss or impairment of the functions of any part of her body, and there was no expert evidence of a substantial risk of death.
On review of the denial of a motion for judgment of acquittal, we determine if the state adduced sufficient evidence to make a submissible case. State v. Foster, 930 S.W.2d 62, 63 (Mo.App.1996). In making this determination, we accept as true all evidence favorable to the state, including all favorable inferences drawn from the evidence, and we disregard all evidence and inferences to the contrary. Id. at 63-64. We ascertain whether there was sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. Id. at 64. We must consider all inferences favorable to the state. Id.
"A person commits the crime of felonious restraint if he knowingly restrains another unlawfully and without consent so as to interfere substantially with his liberty and exposes him to a substantial risk of serious physical injury." Section 565.120.1. Under this statute, it is irrelevant whether the victim suffered serious physical injury. State v. Smith, 902 S.W.2d 313, 315 (Mo.App.1995). The sole elements of this offense are that the defendant 1) unlawfully restrained the victim and 2) exposed the victim to a substantial risk of serious physical injury. Id.; State v. Baker, 791 S.W.2d 939, 942 (Mo.App. 1990); State v. Warren, 779 S.W.2d 751, 753 (Mo.App.1989).
Section 565.002(6) RSMo.1994 defines "serious physical injury" as a "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." A protracted loss or impairment of the function of any part of the body entails an injury short of permanent but more than a short duration. State v. Brokus, 858 S.W.2d 298, 301 (Mo.App.1993). Further, an impairment of the function of any part of the body means damage, injury or deterioration and is distinguishable from "loss" of function. Id.
Defendant does not dispute that he restrained victim. Rather, he contends that the state failed to present sufficient evidence that this restraint exposes a victim to a substantial risk of serious physical injury. Whether a defendant's unlawful restraint exposes a victim to the risk of serious physical injury is to be determined from all of the circumstances. Id. The question is whether the defendant engaged in physical intimidation or violence, which, if repeated or carried further, could have seriously injured the victim or threats of or the propensity to commit violence which, if carried out, could have seriously injured the victim. Smith, 902 S.W.2d at 315. Whether or not the victim actually suffered serious physical harm is not dispositive. Baker, 791 S.W.2d at 942.
Defendant dragged victim by the hair, punched her in the face, hit her, threw her on the floor, and threw her head against concrete. These are acts that, had they been repeated or carried further, could have seriously injured victim. By engaging in these acts of physical violence, defendant exposed victim to the risk of serious physical harm. See Baker, 791 S.W.2d at 942; State v. Terrell, 751 S.W.2d 394, 395-96 (Mo.App.1988); State v. Salkil, 659 S.W.2d 330, 334 (Mo.App. 1983). Point one is denied.
In his second point, defendant asserts that the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence because the state did not prove that the defendant entered the neighbor's residence with the intent to commit a crime, specifically with the intent to resist arrest by fleeing. Defendant contends that the state did not prove that he knew or reasonably should have known that the officers were making an arrest of him at the time he entered the house.
A person commits "the crime of burglary in the first degree if he knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein. . . ." Section 569.160.1. The state charged defendant with entering the house "for the purpose of committing the crime of resisting arrest." A person who knows or reasonably should know that a law enforcement officer is making an arrest, and flees from that officer, commits the crime of resisting arrest. Section 575.150.1(1) RSMo (2000). The statute requires that a defendant 1) knows that a law enforcement officer is making an arrest and 2) resists the arrest by fleeing in order to prevent the officer from effecting the arrest. State v. Dossett, 851 S.W.2d 750, 751 (Mo.App.1993). ...
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