State v. Kee, WD
| Decision Date | 09 September 1997 |
| Docket Number | No. WD,WD |
| Citation | 956 S.W.2d 298 |
| Parties | STATE of Missouri, Respondent, v. Vincent KEE, Appellant. 52686. |
| Court | Missouri Court of Appeals |
James R. Wyrsch, W. Brian Caddy, Wyrsch, Hobbs, Mirakian & Lee, Kansas City, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
Before ELLIS, P.J., and LOWENSTEIN and HOWARD, JJ.
Vincent J. Kee appeals from a judgment entered upon his conviction by jury of first degree assault, § 565.050, armed criminal action, § 571.015, and violating an order of protection, §§ 455.045, 455.050, and 455.085.8. 1 Kee was sentenced to concurrent terms of thirty years on the assault count and twenty years on the armed criminal action count, and to six months jail time for violating the court order of protection.
The record reflects that on October 24, 1995, Kee contacted his estranged wife, Georgia L. Kee, at work and told her that he would rather go to jail than pay child support and that no one was going to make him pay child support or take his children away from him. During this conversation, Kee also threatened to kill her. The next day when Mrs. Kee went to pick up one of their children at school, she found Kee standing outside the child's classroom. When she discovered that Kee was there to pick up the child, Mrs. Kee began to walk away. Kee grabbed her around the neck, threw her up against the wall and began choking her. The following day, Mrs. Kee obtained an ex parte order for protection from the Jackson County Circuit Court.
About noon on November 7, 1995, Hazel Crow, Mrs. Kee's mother, drove her daughter to the Jackson County Courthouse, where Mrs. Kee obtained a full order of protection against Kee. At approximately 4:15 p.m. that afternoon, Kee called Mrs. Kee at work and said, "One, two, three [your] time [is] up." About fifteen minutes later, Mrs. Kee left work and walked across the street to the parking lot where her car was parked. As she was putting the key into her car's ignition, Kee began ramming the front of his truck into the front of her car. Mrs. Kee started her car and tried to push Kee's truck back, but was unable to do so. When Mrs. Kee began to dial 9-1-1 on her car telephone, Kee jumped out of his truck, climbed over the hood of her car, and began hitting the driver's side window with his fist. Kee broke the window and struck Mrs. Kee with an unidentified object, causing her to lose consciousness. A short while later, Mrs. Kee regained consciousness and exited her vehicle. Kee came over to her and said, "Oh, you didn't die." Mrs. Kee's knees buckled and she laid on the ground until she heard Kee drive away.
Two of Mrs. Kee's co-workers, April Mason and Rex Taylor, witnessed the assault and assisted her after Kee fled in his truck. Mrs. Kee's face was so badly mutilated, they were able to recognize her only by her voice. Mason wrapped her coat around Mrs. Kee's face to minimize the bleeding. Mrs. Kee repeatedly stated that her husband had attacked her and that she had a restraining order against him in her purse.
Mrs. Kee was taken to the emergency room at Truman Medical Center. She had multiple stab wounds: one to her right jaw, five to the right side of her neck, two to her left chest, one to her left forearm, and one to her left hand. These wounds were consistent with a sharp, stabbing instrument.
The next day, the police executed a search warrant at Kee's residence and took photographs of Kee's truck, which had sustained damage to its front end. A pair of "Rocky" shoes were retrieved from Kee's bedroom, which had soles similar to the print taken from the hood of Mrs. Kee's car.
Following a jury trial on March 12, 1996, Kee was convicted of first degree assault, armed criminal action, and violating a full order of protection. On April 9, 1996, he was sentenced to concurrent terms of thirty years imprisonment for the assault conviction and twenty years for the armed criminal action conviction, and to six months jail time for violating the protection order. Kee brings three points on appeal.
In his first point, Kee challenges the sufficiency of the evidence supporting his convictions. In considering a challenge to the sufficiency of the evidence to support a criminal conviction, our review is limited to determining whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. State v. Idlebird, 896 S.W.2d 656, 660 (Mo.App. W.D.1995). We view the evidence in the light most favorable to the verdict, including all favorable inferences drawn from the evidence, and disregard all evidence and inferences to the contrary. State v. Tracy, 918 S.W.2d 847, 851 (Mo.App. W.D.1996). This standard applies to our review of all evidence, direct as well as circumstantial. State v. Luna, 800 S.W.2d 16, 19 (Mo.App. W.D.1990). We neither weigh the evidence, nor determine the reliability or credibility of the witnesses. Idlebird, 896 S.W.2d at 661.
Kee first argues that the State failed to prove he was the assailant. He contends the eye witness testimony was inconclusive and unreliable because both Mason and Taylor were 150 to 200 feet away from the parking lot, it was near dusk, neither witness observed the license plate number on the assailant's truck, and Mason was unable to identify Kee in a police line-up. Kee also notes that Mason and Taylor testified that the assailant was wearing a standard postal uniform, while Mrs. Crow testified that Kee was not wearing a postal uniform at the protective order hearing earlier that day. He further contends the physical evidence was insufficient to support the conviction because the search warrant failed to turn up any blood or glass fragments, and the officer who took the shoe print from the hood of Mrs. Kee's car could not testify, with any certainty, that the prints came from the shoes seized at Kee's residence.
Despite Kee's assertions, the evidence presented at trial was more than sufficient to conclude that Kee was the assailant. The morning of the assault, Mrs. Kee had obtained a full order of protection against Kee because he had previously threatened and assaulted her over their impending divorce. A mere fifteen minutes before the assault, Kee made a threatening telephone call to Mrs. Kee at her work. Immediately after the attack, Mrs. Kee repeatedly stated to her co-workers that her husband had stabbed her. Taylor identified Kee as the assailant from a police line-up and accurately described Kee's truck as a small, black Toyota or Nissan truck. The search of Kee's residence the day after the assault produced a black Toyota truck with damage to the front. Also a pair of Rocky shoes seized from Kee's residence left prints consistent with the shoe print lifted from the hood of Mrs. Kee's car. Finally, Mason, although not able to identify Kee out of a police line-up, accurately described him as a tall, black, stocky male, wearing a postal employee uniform. 2 The foregoing evidence was sufficient for a reasonable juror to find that Kee assaulted Mrs. Kee.
Kee next argues that there was insufficient evidence to convict him of class A felony assault in the first degree because the State failed to prove that Mrs. Kee suffered serious physical injury. To find Kee guilty of class A felony first degree assault, the State was required to prove that Kee attempted to kill or cause serious physical injury to Mrs. Kee and that, as a result, she suffered serious physical injury. § 565.050. 3 Serious physical injury is "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." § 565.002(6).
"The question is whether the injuries inflicted in the assault, viewed objectively, are of a degree of severity sufficient to raise a legitimate concern either that the victim could expire or could suffer more than a momentary loss of a bodily function." State v. Johnson, 770 S.W.2d 263, 266 (Mo.App. W.D.1989). Kee stabbed his wife multiple times: once in her right jaw, five times in the right side of her neck, twice in her left chest, once in her left forearm, and once in her left hand. According to the emergency room physician attending to Mrs. Kee when she was first admitted to the trauma center, the wounds to her throat and chest were consistent with life-threatening injuries. "Substantial risk of death suggests circumstances which give rise to apprehension of life threatening consequences." State v. Kruger, 926 S.W.2d 486, 488 (Mo.App. E.D.1996). Mrs. Kee's survival of the assault does not render her condition any less serious, nor does it negate the proposition that she could have life threatening consequences. Johnson, 770 S.W.2d at 266.
The State also adduced sufficient evidence to demonstrate serious disfigurement as a result of Kee's assault. "Disfigurement means to deface or mar the appearance or beauty of someone." Kruger, 926 S.W.2d at 488. The emergency room physician testified that when he saw Mrs. Kee, she had "apparent paralysis of the right side of her face consistent with facial nerve deficit." He opined that the paralysis was "probably a result of one of the stab wounds to her neck lacerating her right facial nerve." Mrs. Crow also testified that her daughter looks like a stroke victim because the right side of her face, including her right eyelid, hangs. She further testified that Mrs. Kee's neck and face were scarred from the wounds. The State presented sufficient evidence that Mrs. Kee suffered serious physical injury as a result of the assault. The conviction of class A felony assault in the first degree was supported by the evidence.
Finally, Kee contends there was insufficient evidence to...
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