State v. Heitman, WD

• Decision Date: 02 March 1981
• Docket Number: No. WD,WD
• Citation: 613 S.W.2d 902
• Parties: STATE of Missouri, Respondent, v. Fred D. HEITMAN, Appellant. 31430.
• Court: Missouri Court of Appeals

Page 902

613 S.W.2d 902

STATE of Missouri, Respondent, v. Fred D. HEITMAN, Appellant.

No. WD 31430.

Missouri Court of Appeals, Western District.

March 2, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

March 30, 1981.

Application to Transfer Denied May 11, 1981.

Robert G. Duncan, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, for respondent.

Before PRITCHARD, P. J., and TURNAGE and CLARK, JJ.

CLARK, Judge.

Appellant was jury tried and convicted of assault with intent to kill with malice aforethought, burglary second degree and stealing. ¹ In accordance with the verdict, appellant was sentenced to concurrent terms of eight and three years for burglary and stealing and a consecutive sentence of thirteen years for assault.

On this appeal, Heitman contends (1) the evidence was insufficient for submission of the charge of assault with intent to kill, (2) the lesser included offense of common assault was erroneously not submitted, and (3) the jury instruction on assault without malice failed to conform to MAI-CR. Affirmed.

In the early morning hours, an automatic alarm notified the Kansas City, Missouri police dispatcher that unauthorized entry had been made to Bill and Gerry's Bar on Independence Avenue. Five police officers and a helicopter responded. Among those dispatched to the scene were Officer New of the canine unit and Officer Koetting. The owner of the bar was contacted by telephone and he arrived within a few minutes. The keys were given to New who unlocked the front door and entered with his dog. A man, later identified as Heitman, was observed behind the bar counter ransacking drawers. After shouting a warning and receiving no response, New released the dog. Heitman crouched down behind the bar where he was protected from the dog by debris on the floor and by open cabinet doors.

To determine why the dog was unable to reach the suspect, New walked toward the opposite end of the bar. At this point, both New and Officer Koetting, who was looking through the front window from the street, observed Heitman point a pistol at New from a squatting position behind the bar. Koetting, believing New to be in immediate danger of being shot by Heitmen, fired two shots through the window. Heitman was struck by both bullets, he fell to the floor behind the bar and the pistol flew from his hand and landed some ten feet from him. When the gun was later examined, the hammer was in a cocked position ready to fire, the gun was fully loaded and test firing disclosed it to be in operating condition.

The bar premises had been fully secured by the owner when the business had closed for the night approximately one hour before the break-in. Subsequent investigation revealed that entry to the building had been effected by coming through the roof and through a false ceiling in an office area. A sledge hammer was found on the roof and a plywood panel had been removed from a window.

In his first point, Heitman argues that the evidence not only failed to establish intent on his part to kill New, but required a contrary inference. Even conceding that he directed the weapon toward New as the target, appellant notes that he voiced no threat and fired no shot although adequate time and means were available to do so. In effect, appellant says that his failure to fire the weapon demonstrates restraint and reluctance to cause injury and belies any intent to kill. As a corollary, he also contends that the same facts disprove the additional charge of malice.

By common definition, the unlawful offer of bodily injury to another with the apparent present ability to accomplish the deed if not prevented is an assault. State v. Parker, 378 S.W.2d 274, 282 (Mo.App.1964). A person who points a loaded firearm at another in order to cause injury or induce fear is guilty of an assault. State v. Ladd, 552 S.W.2d 23 (Mo.App.1977); State v. Eddy, 199 S.W. 186 (Mo.1917). The intent of one charged with an offense which includes this element is ordinarily not susceptible of proof by direct evidence. Intent may be and usually is shown by circumstantial evidence. State v. Gannaway, 313 S.W.2d 653, 656 (Mo.1958); State v. Moon, 602 S.W.2d 828, 831 (Mo.App.1980).

The evidence bearing on the issue of intent was undisputed and showed that Heitman was confronted while in the act of committing a burglary; that he drew a revolver from his trousers and pointed the weapon at the police officer who had called on him to surrender; that the gun was loaded, cocked and operable; that the distance between Heitman and the officer was six to eight feet; and that Heitman was felled by shots from another officer before Heitman's gun was fired. This evidence was sufficient, if believed by the jury, to convict Heitman of the offense.

In effect, Heitman claims that a threat to do violence is no offense if, with opportunity to act, the force be not actually applied. As noted above, however, the threat with the present means of accomplishment is the offense and intent is inferred from the circumstances of the acts and conduct. Here, it is not suggested that Heitman drew and aimed the weapon in sport of jest or upon any motivation other than that which his conduct and the situation presented. His gun was not fired because of that which followed, either a change of purpose or indecision or because he was struck down by shots from Officer Koetting. Neither possibility negates the proof of the assault and the requisite inference of intent. A change of mind, premature discovery, resistance of an intended victim or intervention of outside forces which thwart the act of violence do not change the character of the assault or purge the defendant of the offense. State v. Selle, 367 S.W.2d 522, 527 (Mo.1963).

Appellant relies on State v. Kester, 201 S.W. 62 (Mo.1918) and State v. Harty, 569 S.W.2d 783 (Mo.App.1978). While both cases involve the discharge of a firearm and resulting charges of assault, they are distinguishable from the present case on the facts. In each, the defendant was shown to have fired a gun generally in the direction of a building but...