State v. Mann

• Decision Date: 29 March 2004
• Docket Number: No. 25342.,25342.
• Citation: 129 S.W.3d 462
• Parties: STATE of Missouri, Respondent, v. Tony MANN, Appellant.
• Court: Missouri Court of Appeals

129 S.W.3d 462

STATE of Missouri, Respondent, v. Tony MANN, Appellant.

No. 25342.

Missouri Court of Appeals, Southern District, Division One.

March 29, 2004.

James R. Hobbs, Marilyn B. Keller, Wyrsch, Hobbs, & Mirakian, P.C., Kansas City, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Leslie E. McNamara, Asst. Atty. Gen., Jefferson City, for Respondent.

ROBERT S. BARNEY, Presiding Judge.

Tony Mann, ("Appellant") appeals his conviction and sentence for assault of a law enforcement officer in the first degree, § 565.081.1, and armed criminal action, § 571.015.¹ Following a court-tried case, Appellant was sentenced to life in prison for the first degree assault charge, and to ten years in prison for armed criminal action, the terms to run concurrently. In his sole point on appeal, Appellant posits that the trial court erred in denying his motion for judgment of acquittal because there was insufficient evidence to convict him on either of the aforementioned charges due to the failure of Respondent to prove Appellant's "specific intent to seriously injure or kill," as required under section 565.081.1. We affirm.

Viewing the facts in a light most favorable to the verdict, State v. Bewley, 68 S.W.3d 613, 615 (Mo.App.2002), the record reveals that on the evening of October 4, 2001, two Springfield police officers, Officer David Shanholtzer and Officer David Meyer, were conducting surveillance on Appellant's residence in an unmarked police car. While the officers were watching Appellant's house, Appellant rode past them several times on a motorized scooter and then proceeded to operate the scooter in a reckless manner by swerving into oncoming lanes of traffic. The officers decided to initiate a traffic stop of Appellant for driving the scooter erratically, but by the time they pulled out of their location, they had lost sight of him.

After driving around the block several times, the officers once again encountered Appellant, who was now riding a bicycle. As Appellant rode past them, Officer Meyer identified himself as a police officer and asked Appellant if they could talk to him for a minute. Appellant answered, "No," and continued riding past the officers.

The officers activated the "red dash lights," on their vehicle and turned the vehicle around in an attempt to pursue Appellant. The officers followed Appellant until he veered off the street and rode in between two houses. The officers then parked and secured their vehicle, grabbed their hand-held radios, and went in search of Appellant. Officer Meyer proceeded down the street and Officer Shanholtzer walked quickly toward the house where Appellant had last been spotted.

Coming around the back of the house in the darkness, Officer Shanholtzer saw Appellant in the beam of his flashlight about thirty yards away. Appellant was "standing back behind the waist-high fence ... facing [Shanholtzer] with his hands down in his waist area, below the vegetation in the fence and [where Shanholtzer] couldn't clearly see his hands." Officer Shanholtzer yelled for Appellant to show his hands, and when Appellant raised his hands, Appellant fired a shot at the officer. Officer Shanholtzer described the report of the shot as being "loud" and that he "saw the flash from the muzzle of the gun." Officer Shanholtzer then took cover behind a shed and drew his "duty gun". Officer Meyer came running up behind him and they radioed for back-up. When Officer Shanholtzer peered out from behind the shed, Appellant was no longer there. Fearing that Appellant might "ambush [them] again from that location," the officers retreated to their vehicle and awaited assistance.

Once "back-up" arrived, a canine officer tracked Appellant's scent from the scene of the shooting back to his residence. Shortly after midnight gas was deployed into Appellant's house in an effort to force him to surrender. Approximately five to ten minutes later Appellant emerged from the residence and was arrested. Subsequent to procuring a search warrant, the special investigations unit began to search Appellant's home. The search revealed several handguns, including one which had a bullet in the chamber, a backpack containing ammunition, as well as numerous boxes of ammunition throughout the house.²

At trial, Appellant testified that "scared" and "in a panic," he had "[tried]to get away" from the officers. He stated that he knew he had a pistol in the "tool pouch" of his mountain bike and that he could get in trouble for being a felon in possession of a firearm. Specifically, he testified, "I had something I wasn't supposed to have with me, and I was trying to get away. And by this time, I'd decided that they are police, and I hear them yelling. And I take the pistol out of the bag and fire it skyward... to get a little distance from them." He stated that he never intended to hit Officer Shanholtzer with the bullet and that he "wasn't trying to hurt anyone," although he admittedly "fire[d] a gun in the proximity" of a police officer. Additionally, Appellant testified that he fired a single shot, although his weapon was capable of being fired in rapid succession. He stated he "wasn't trying to have a gun battle or anything of that nature." Asked on cross-examination whether he had been using methamphetamine for several days prior to the incident, Appellant answered, "I'd done some methamphetamine, yes."

At the close of all the evidence, Appellant filed a motion for judgment of acquittal, which was denied by the trial court. The trial court found Appellant "guilty of assault of a law enforcement officer in the first degree beyond a reasonable doubt" and "guilty of armed criminal action." Appellant was sentenced to life in prison for assault of a law enforcement officer in the first degree and 10 years for armed criminal action, with the sentences to run concurrently to each other and to the federal offense Appellant was already serving. This appeal followed.

The appellate court reviews the sufficiency of the evidence in a court-tried criminal case by applying the same standard used in a jury-tried case. State v. Agee, 37 S.W.3d 834, 836 (Mo.App.2001). "`We review the denial of a motion for acquittal to determine if the state adduced sufficient evidence to make a submissible case.'" State v. Howard, 973 S.W.2d 902, 906 (Mo.App.1998) (quoting State v. Foster, 930 S.W.2d 62, 63 (Mo.App.1996)). Where Appellant contests the sufficiency of the evidence to support his conviction, appellate review is limited to a determination of whether there is sufficient evidence from which a reasonable trier-of-fact might have found Appellant guilty beyond a reasonable doubt. See State v. Silvey, 894 S.W.2d 662, 673 (Mo. banc 1995); Agee, 37 S.W.3d at 836. The Court is required to take the evidence in the light most favorable to the State and to grant the State all reasonable inferences from the evidence. State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001). The Court disregards contrary inferences, unless they are such a natural and logical extension of the evidence that a reasonable juror would be unable to disregard them. Id. "`Taking the evidence in this light, the Court considers whether a reasonable juror could find each of the elements beyond a reasonable doubt.'" Id. (quoting State v. Grim, 854 S.W.2d 403, 411 (Mo. banc 1993), cert. denied, 510 U.S. 997, 114 S.Ct. 562, 126 L.Ed.2d 462, (November 29,1993)).

In his sole point on appeal, Appellant argues that there was insufficient evidence adduced at trial to prove that he "had the specific intent to seriously injure or kill" either of the officers involved in this matter. He further maintains that the only evidence that related to that element was the testimony of Officer Shanholtzer, who "gave two contradictory versions of the facts and whose testimony was contrary to an established physical fact." Appellant argues that at most he was guilty of assault of a law enforcement officer in the third degree, because his actions constituted no more than recklessness or criminal negligence.

Section 565.081.1 provides that "[a] person commits the crime of assault of a law enforcement officer ... in the first degree if such person attempts to kill or knowingly causes or attempts to cause serious physical injury to a law enforcement officer...." § 565.081.1 (emphasis added).

In the instant matter, the felony information charged that Appellant "attempted to kill or cause serious physical injury to Officer, David Shanholtzer by shooting at him."

It is well settled that one attempts to commit an offense when, with the purpose of committing the offense, he does any act which is a substantial step towards commission of the offense. State v. Withrow, 8 S.W.3d 75, 78 (Mo. banc 1999). "`A "substantial step" is conduct which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense.'" Id. (quoting § 564.011). To act with a firm purpose means that it is the actor's conscious object to engage in certain conduct or to cause a certain result. Whalen, 49 S.W.3d 181, 187 (Mo. banc 2001); § 562.016.2.

Accordingly, "`[t]here emerges here a clear requirement that conviction of an attempt to kill or to cause serious physical injury requires proof of a very specific intent on the part of the actor to accomplish that objective.'" Whalen, 49 S.W.3d at 186 (quoting State v. Gonzales, 652 S.W.2d 719, 722 (Mo.App.1983)); see also England v. State, 85 S.W.3d 103, 107 (Mo. App.2002). ("Where the assault charge is based on an...