State v. Fraga, 26709.

CourtCourt of Appeal of Missouri (US)
Citation189 S.W.3d 585
Docket NumberNo. 26709.,26709.
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Morris D. FRAGA, Defendant-Appellant.
Decision Date31 January 2006

Randy S. Anglen, Branson, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, MO, for respondent.

JEFFREY W. BATES, Chief Judge.

In April 2003, Morris Fraga ("Defendant") rammed his car into another vehicle being driven by Amanda Cook ("Victim"). The collision forced Victim's car off the road. She was injured, and her vehicle sustained over $2,300 in damages. Defendant was charged with committing the class C felony of second degree assault. See § 565.060.1 He was convicted of this offense after a bench trial. On appeal, Defendant contends his conviction should be reversed because there was insufficient evidence to prove beyond a reasonable doubt that he intended to physically harm Victim. Defendant admits forcing Victim's car off the road; however, he argues the only reasonable inference supported by the evidence was that he simply wanted to stop Victim in order to lecture her about her driving. Finding no merit in this argument, we affirm.

I. Standard of Review

This case was tried to the court after Defendant waived his right to a jury trial. In a court-tried criminal case, the judge's findings have the force and effect of a jury verdict. Rule 27.01(b); State v. Crawford, 68 S.W.3d 406, 408 (Mo. banc 2002).2 Therefore, the standard used to review the sufficiency of the evidence in a court-tried and a jury-tried criminal case is the same. State v. Lauer, 955 S.W.2d 23, 24 (Mo.App.1997). Appellate review is limited to determining whether there was sufficient evidence from which a reasonable fact-finder might have found the defendant guilty beyond a reasonable doubt. Crawford, 68 S.W.3d at 408. "The State may prove its case by presenting either direct or circumstantial evidence connecting the defendant to each element of the crime." State v. Howell, 143 S.W.3d 747, 752 (Mo.App.2004). In reviewing the evidence, we accept as true all evidence and inferences favorable to the State; all contrary evidence and inferences are disregarded. Crawford, 68 S.W.3d at 407-08; Howell, 143 S.W.3d at 752.

The evidence presented at trial consisted principally of oral testimony from the State's witnesses and Defendant describing, from each witness' perspective, what had occurred. "Witness testimony is for a trial court to consider as the trier of fact." Lauer, 955 S.W.2d at 25. It is the trial court's prerogative to decide whether to believe all, part or none of a witness' testimony. Id. "An appellate court will not determine the credibility of witness testimony." Id.

Finally, it is important to note that Defendant initially filed a motion for judgment of acquittal at the close of the State's case. After the State rested, Defendant testified on his own behalf. At the close of all of the evidence, Defendant filed another motion for judgment of acquittal. "When a defendant introduces evidence on his own behalf, after the overruling of his motion for judgment of acquittal at the close of the State's case, the sufficiency of the evidence must be determined upon the entire record considering any incriminating evidence developed during the defendant's case." State v. Rivers, 554 S.W.2d 548, 550 (Mo.App.1977); see State v. Parcel, 546 S.W.2d 571, 573 (Mo.App.1977). Therefore, as we review the sufficiency of the evidence to support Defendant's conviction, we will consider any evidence favorable to the State that was elicited during the Defendant's testimony. See State v. Sanderson, 169 S.W.3d 158, 160-61 (Mo. App.2005). The following summary of the evidence has been prepared in accordance with these principles.

II. Summary of the Favorable Evidence Supporting Defendant's Conviction

On April 1, 2003, Victim was driving her 2002 Dodge Neon north on Highway 65 toward Highlandville. At that location, Highway 65 consists of two northbound lanes and two southbound lanes divided by a grassy median. Victim, who had just turned 18 years of age, was a senior at Spokane High School. She was accompanied by her 19-year-old brother, Josh Cook ("Cook"), who was sitting in the Neon's front passenger seat.

As Victim approached the crest of a hill, she was driving in the passing lane in order to go around a tractor-trailer. The Neon was traveling at approximately 70 miles per hour. Defendant was driving an older-model gold Mercedes some distance behind Victim. The Mercedes was traveling approximately 90 miles per hour. Victim saw the Mercedes coming up behind her at such a high rate of speed that she thought her car was going to be struck in the rear. As the Neon headed down the hill, the tractor-trailer picked up speed. This prevented Victim from being able to complete her passing maneuver, even though she had sped up to about 75 miles per hour. Defendant, who was then about one car length behind the Neon, tried to pass Victim by going around her on the left-hand shoulder beside the passing lane. The right front end of the Mercedes was next to the left rear corner of the Neon. Defendant remained there for five or six seconds until it became apparent that he would not be able to get around Victim's car because the shoulder was only a few feet wide. Victim slowed down to see if the tractor-trailer unit would go past her, but it kept pace with her. At that point, Victim increased her speed to about 85 miles per hour in order to get around the tractor-trailer. When Victim was about one car length ahead of the tractor-trailer, Defendant swerved into the right-hand driving lane in front of the tractor-trailer. By doing so, Defendant prevented Victim from moving over into the driving lane.

Cook, who was watching Defendant's vehicle, saw Defendant throw his hands up in the air and make an obscene gesture with his middle finger. Defendant swerved his vehicle towards the Neon, which was still traveling at 85 miles per hour, and nearly hit it. Cook saw Defendant move off a short distance and then "intentionally swerve and hit us, and hit our car, and made us go off the road into the median." The collision was so hard that it moved Victim's whole car and jerked it toward the median. At that location, the median was only about 20-25 feet wide. It sloped downhill, and there were a number of dips and rocks in it. Victim slammed on her brakes and finally came to a stop in the median. The Neon had sustained a significant impact to its right-front fender in the area ahead of the passenger door. This collision damage cost $2,331.76 to repair.

Once the Neon came to rest in the median, Victim called 911. Defendant stopped his car on the inside shoulder next to the median some distance ahead of the Neon. Defendant got out of his vehicle and approached Victim's car. He was "very angry." While Victim was on the telephone with the 911 operator, Defendant banged on her window and said, "You're going to be in trouble, Little Girl." Victim opened her door and had one leg out of the car, but Cook and the 911 operator warned her not to get out. Once Victim put her leg back in the Neon, Defendant slammed the door shut. When Defendant was told that police were on their way, he stood outside Victim's door for a moment and then walked off.

When Missouri State Highway Patrol Trooper Shane Rowe ("Trooper Rowe") arrived at the scene, he found Defendant sitting in the Mercedes with a Leatherman-type combination tool in his hand. Because this tool contained a knife blade, Trooper Rowe asked Defendant to put it down. Defendant declined to do so, and the trooper testified that "[w]e had to talk about that for a little bit before he'd finally put it down." Defendant said he was traveling 90 miles per hour on Highway 65 when a car in the passing lane impeded him from going on up the road. He tried to pass on the inside shoulder, but that didn't work. When the car did not get out of the way fast enough, he wanted to talk to the driver about it. When she wouldn't pull over, "he rammed her off the road." After making these statements, Defendant was arrested.

Victim sustained injuries to her lower back and neck in the collision. Although she did not require medical attention, both parts of her body have continued to ache and hurt since the date of the accident. These injuries were sufficiently painful that Cook noticed Victim's discomfort after the collision.

The foregoing facts were elicited by the State in its case-in-chief. Defendant was the only witness who testified on his behalf. During his direct examination, he disclosed that he had previously forced another car off the road in order to get two of his sons out of the vehicle because they were in the company of a "dopehead." Defendant also admitted that he pulled over a motorcyclist who gestured at him while passing because "I will stop somebody like that." Defendant believed that it was his responsibility as a citizen to do so. On cross-examination, Defendant admitted that when he moved his vehicle over into the passing lane toward Victim's car, it was his intention to try and force the Neon off the road.

After hearing all of the evidence, the trial court found Defendant guilty of assault in the second degree. The trial court then made the following comment:

Gentlemen, before we adjourn here today, I want to talk about bond, and bond conditions, and I—based upon the evidence that I've heard, and primarily based upon the statements that have come out of [Defendant's] mouth . . ., I'm most concerned about him continuing to operate a motor vehicle, and engaging in his form of vigilante justice. If I understood him correctly, he's done this at least three times, and this is dangerous, hazardous activity, and I feel compelled to take steps to prevent future occurrences of this sort of vigilante justice.

Therefore, the court continued Defe...

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