State v. McMahan, s. 58289

• Decision Date: 24 December 1991
• Docket Number: 59970,Nos. 58289,s. 58289
• Citation: 821 S.W.2d 110
• Parties: STATE of Missouri, Respondent, v. Freddie McMAHAN, Appellant. Freddie McMAHAN, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 110

821 S.W.2d 110

STATE of Missouri, Respondent, v. Freddie McMAHAN, Appellant.

Freddie McMAHAN, Movant-Appellant, v. STATE of Missouri, Respondent.

Nos. 58289, 59970.

Missouri Court of Appeals,

Eastern District,

Division Two.

Dec. 24, 1991.

Kathleen G. Green, St. Louis, Melinda Kay Pendergraph, Columbia, movant-appellant.

William L. Webster, Atty. Gen., Robert P. Sass, Asst. Atty. Gen., Jefferson City, for respondent.

CRANDALL, Judge.

Defendant, Freddie McMahan, was convicted, after a jury trial, of assault in the first degree, a class B felony and armed criminal action. He was sentenced to consecutive terms of imprisonment of five years and five years respectively. Defendant also appeals the denial of his Rule 29.15 motion. We affirm defendant's convictions on direct appeal. We dismiss the appeal of defendant from the denial of his Rule 29.15 motion.

Defendant first challenges the sufficiency of the evidence to support his conviction for assault in the first degree. In testing the sufficiency of the evidence, we consider the evidence and the reasonable inferences therefrom in the light most favorable to the State, disregarding all adverse inferences and evidence. State v. Branscomb, 638 S.W.2d 306, 307 (Mo.App.1982).

On May 3, 1989, defendant argued with the victim over a late rent payment in front of the victim's building. Following the argument, defendant got a shotgun and walked toward the victim's building. When he reached the middle of the street, he began to shoot at the victim. The victim, who was on the front porch of his building holding his son, handed his son to his brother inside the building and took cover.

Defendant fired one or two more shots as he continued to walk across the street toward the victim's building. Defendant then stopped to reload the shotgun. At that time, the victim ran upstairs and into his second floor apartment.

By the time defendant reached the victim's porch, the victim was inside. Defendant then walked back out into the street which provided a better angle from which to shoot at the second floor. At the same time, the victim went out on the second floor balcony in order to pull his niece out of the line of fire. The defendant shot at and struck the victim as he attempted to reenter his apartment. The child was uninjured.

The pellets from defendant's shotgun hit the victim in the face, neck, shoulder, chest and arm. The victim spent two days recovering in the hospital during which time doctors were able to remove some, but not all, of the pellets.

Defendant was convicted of assault in the first degree, a class B felony. Section 565.050, RSMo (1986) defines assault in the first degree as follows:

1. A person commits the crime of assault in the first degree if he attempts to kill or knowingly causes or attempts to cause serious physical injury to another person.

2. Assault in the first degree is a class B felony unless in the course thereof the actor inflicts serious physical injury on the victim in which case it is a class A felony.

The shotgun in question is a deadly weapon. Its purpose is to kill. There was direct evidence in the record that defendant used that deadly weapon, in a manner for which it was intended, by firing it at the victim and wounding him. That evidence standing alone is sufficient to make, at the very least, a submissible case of the class B felony of assault in the first degree. The actual wounding of the victim is not a necessary element of the class B felony, however, it is strong evidence of an attempt to kill or do great bodily harm. Defendant's point is denied. ¹

Defendant next contends that the trial court erred in failing to submit instructions on the lesser included offenses of assault in the second degree and assault in the third degree. Defendant claims that the State did not show defendant intended to kill or seriously injure the victim; rather, defendant argues that he only meant to scare the victim. We disagree.

The trial court is not required to instruct the jury with respect to a lesser included offense unless there is a basis for acquitting the defendant of the offense charged and convicting him of the lesser included offense. State v. McBurnett, 694 S.W.2d 769, 772 (Mo.App.1985). Here, as discussed in the preceding point, evidence that defendant pointed and shot a shotgun at the victim was enough to establish a submissible case of assault in the first degree. Defendant was either guilty or not guilty of that crime; there was no basis in the record to convict him of a lesser offense. Defendant's point is denied.

Defendant's third point is that the trial court erred in sustaining the State's challenge of a venireperson for cause. Specifically, defendant argues that the State violated Missouri law by using the venireperson's arrest record to show that during voir dire, the venireperson was incorrect when he said he had never been arrested. Defendant argues that the venireperson was thereby unlawfully denied his right to participate in jury service and that he, as a third...