State v. Edsall, 16197
| Decision Date | 14 December 1989 |
| Docket Number | No. 16197,16197 |
| Citation | 781 S.W.2d 561 |
| Parties | STATE of Missouri, Respondent, v. Jimmy Dean EDSALL, Appellant. |
| Court | Missouri Court of Appeals |
Blair Buckley, Jr., Public Defender, Caruthersville, for appellant.
H. Riley Bock, Asst. Pros. Atty., Portageville, for respondent.
Appellant was charged with the class A misdemeanor of assault in the third degree, § 565.070, RSMo 1986, tried by the court without a jury, found guilty as charged, and sentenced to one year in jail. Execution of the sentence was suspended and appellant was placed on probation. He appeals, briefing two points, both of which attack the sufficiency of the evidence.
The information alleged appellant caused physical injury to Bill Hopkins, a deputy sheriff, by striking him with appellant's fists. Appellant's first point avers the evidence was deficient in that there was no showing that he struck Hopkins with his fists.
The incident occurred at the New Madrid County jail, to which appellant had been delivered by two other officers. Hopkins was following appellant to the "booking room." Hopkins' testimony:
"[W]hen we got back to the booking room, he started coming out of his coat in a threatening manner; and I got the top of his coat, pushed it back on his shoulders and pushed him into the wall and put my arms around him to take him to the door where I could push the buzzer to get it open.... And we scuffled along there in the hallway.... And I don't know whether he hit me, shoved me, or what. When I went to buzz the buzzer, all I know my feet came off the floor; and I was thrown to the concrete floor on my back.
Q. Where did you hit the floor?
A. On this left shoulder and this arm.
Q. Were you hurt?
A. I had to go to the doctor with it, and he did some X-rays. He called me back a day later for X-rays, and he sent those off and hadn't had a return on those yet.
....
Q. I believe you put in your complaint that you thought he had struck you with his fist?
A. At the time, yeah, I said that he--I probably said that he hit me. I'm not sure, really, whether he hit me, shoved me, or he threw me. I know I didn't fall.... I didn't trip or nothing.
....
Q. ... didn't you tell Officer Martin Lingle that you didn't know whether you were hit or whether you slipped that caused you to fall down?
A. No, sir. I didn't tell him slipped. I told him I didn't know whether he hit me, pushed me, or throwed me.
....
Q. And you can't say for certain here today that he hit you, right?
A. No, sir.
....
Q. You don't know exactly what he did other than-- A. No, I don't.
Q. --that there was force involved?
A. There was force. I was forced to the floor.
....
Q. Did you slip?
A. No, sir."
Appellant testified he did not hit Hopkins with his fists. The prosecutor's cross-examination of appellant produced this dialogue:
"Q. Now, is it your testimony today ... that Deputy Bill Hopkins fell on his own there over at the jail?
A. ... When he came at me and pushed me against the door facing, busted--he busted my eye, the corner of my eye. I turned around. He came at me again. I pushed him away from me.
Q. Is that when he fell?
A. Well, it was soon after that.
Q. When you pushed him?
A. No, he grabbed me again. I turned around; and he fell, you know....
Q. But you now are telling us that you did actually push him?
A. I pushed him away from me. He did not fall at that time."
There was no other evidence as to (a) whether appellant struck Hopkins with appellant's fists, or (b) what caused Hopkins to lose his footing and fall to the floor.
Rule 27.01(b), Missouri Rules of Criminal Procedure (20th ed. 1989), provides that in a court-tried criminal case the findings of the court shall have the force and effect of the verdict of a jury. Consequently, appellate review in the instant case is as though a verdict of guilty was returned by a jury, and if there is substantial evidence to support the findings of the trial court its judgment is to be affirmed. State v. Giffin, 640 S.W.2d 128, 130 (Mo.1982). In determining the sufficiency of the evidence we accept as true all evidence in the record tending to prove appellant's guilt, together with inferences favorable to the State that can be reasonably drawn therefrom, and we disregard all contrary evidence and inferences. Id. at 130.
So viewed, the most the evidence showed was that Hopkins, during the scuffle with appellant, lost his footing and fell to the floor, landing on "this left shoulder and this arm." If Hopkins sustained any physical injury it occurred upon impact with the floor, as there was no evidence that he sustained any injury at any other time during the episode.
Section 565.070.1, RSMo 1986, provides in pertinent part:
Section 556.061, RSMo Supp. 1988, provides:
"In this code, unless the context requires a different definition, the following shall apply:
....
(20) 'Physical injury' means physical pain, illness, or any impairment of physical condition;
...."
As we have seen, there was no evidence to support the allegation in the information that appellant caused physical injury to Hopkins by striking him with appellant's fists. First, there was no evidence that appellant struck Hopkins with appellant's fists; second, there was no evidence that Hopkins received any physical injury except possibly when he landed on the floor. Whether there was sufficient evidence to support a finding that the impact with the floor caused Hopkins physical injury is the subject of appellant's second point, infra. It is clear, however, that there was no evidence that Hopkins was injured by any blows struck by appellant. Consequently, if the conviction is to stand it will have to do so on facts different than those pled in the information.
In State v. Lusk, 452 S.W.2d 219 (Mo.1970), a murder case tried by jury, the indictment alleged the accused and another caused the death of the victim by striking him with their hands and kicking him with their feet. The verdict directing instruction submitted that the accused struck the victim with the accused's hands and kicked the victim with the accused's feet, that the accused thereafter left the victim exposed to the elements, and that the assault or the exposure to the elements, or both, contributed to the victim's death. On appeal the Supreme Court of Missouri found the evidence insufficient to support a finding that the assault was a contributing cause of the victim's death, but sufficient to support a finding that exposure to the elements was a contributing cause of the victim's death. Id. at 223. The Supreme Court reversed the conviction, holding that when a crime may be committed by any of several methods, the information or indictment must charge one or more of the methods, the method or methods submitted in the verdict directing instruction must be among those alleged in the information, and when submitted in the disjunctive each must be supported by evidence. Id. at 223.
In the instant case the information alleged appellant caused physical injury to Hopkins by striking him with appellant's fists. There was, as noted earlier, no evidence that appellant struck Hopkins with appellant's fists, nor was there any evidence that Hopkins sustained any physical injury as a result of being struck by appellant's fists. If Hopkins sustained any physical injury at all, it occurred when he fell to the floor, landing on his shoulder and arm. Assuming arguendo that the evidence was sufficient to support a finding that Hopkins fell...
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