State v. Palmer, 17421
| Decision Date | 06 January 1992 |
| Docket Number | No. 17421,17421 |
| Citation | 822 S.W.2d 536 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Gary R. PALMER, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Brad B. Baker, Columbia, for defendant-appellant.
William L. Webster, Atty. Gen., Rudolph R. Rhodes, IV, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Gary R. Palmer (defendant) was convicted of the class D felony of leaving the scene of a motor vehicle accident that resulted in physical injury to another person. § 577.060. 1 He was sentenced to imprisonment for a term of three years. § 558.011.1(4). This court reverses.
The information upon which defendant was tried alleged that defendant operated a motor vehicle that was involved in an automobile accident on or about June 18, 1990. It alleged that the automobile accident "caused a person to sustain personal injury, and defendant knew that such injury had occurred," and that "defendant left the scene of the accident without stopping and giving sufficient information by which the defendant could be readily identified and located, to [the injured] person or to a police officer in the vicinity or to the nearest police station or judicial officer."
Defendant raises two points on appeal. The first point is dispositive. For that reason, only it will be addressed.
Defendant alleges that the evidence before the trial court was not sufficient to sustain his conviction of the crime charged. As explained in State v. Seeger, 725 S.W.2d 39, 40 (Mo.App.1986):
In deciding that issue, we consider the evidence and all inferences reasonably to be drawn therefrom in the light most favorable to the verdict, and disregard all contrary evidence and inferences. State v. Guinan, 665 S.W.2d 325, 327 (Mo. banc 1984), cert. denied, 469 U.S. 873, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984); State v. McDonald, 661 S.W.2d 497, 500 (Mo. banc 1983), cert. denied, 471 U.S. 1009, 105 S.Ct. 1875, 85 L.Ed.2d 168 (1985). The test is whether the evidence, so viewed, was sufficient to make a submissible case from which rational jurors could have found beyond a reasonable doubt that appellant was guilty. State v. Bonuchi, 636 S.W.2d 338, 340 (Mo. banc 1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1206, 75 L.Ed.2d 446 (1983); Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791-92, 61 L.Ed.2d 560, 576-77 (1979).
At approximately 7:30 p.m., June 18, 1990, an automobile driven by Jessica Wilcox was proceeding in a northerly direction on a county road in Jasper County. As the car rounded a curve, the driver saw another vehicle, driven by defendant, "come around the corner really fast" on her side of the road. Jessica turned into a ditch. Her car was struck on the driver's side. Jessica "hit the windshield." She sustained cuts on her forehead that required stitches. She described her other injuries:
Uh, I had a whiplash, and, uh, I had bruised, my nose was bruised, and I had bruises on my face,....
She was taken from the scene by ambulance. She did not see the automobile that struck her vehicle after the impact had occurred.
There was one passenger in Jessica's automobile at the time of the accident, Bryan Jones. Bryan saw the other automobile as it approached, "[a]nd it seemed to come into our lane, and we moved over, and then it hit us from the side." Bryan's head was cut and he "had a couple [of] bruises." He was asked the following questions and gave the following answers:
Q. All right. Right after the accident, uh, what did you do immediately after the accident, Bryan?
A. Uh, I checked her, Jessica, to see if she, how she was, and she was, seemed to be all right, and then I turned back to my left to check to see what the car was like, just, you know, what it was doing, and, uh, it seemed to stop for a second or so and then proceed on the other way.
Q. All right. And, uh, could you see the car all right from where you were?
A. Yes.
. . . . .
Q. When you had, uh, checked on Jessica very quickly and turned around to look at the other car, approximately how far away from you would the other car have been at that time?
A. I'd probably say like 50 to 75 feet.
Q. All right. And you could see the car?
A. Yes.
Jessica's car was damaged on the driver's side. The two doors on that side of the car were inoperable. The side windows by the driver "were all blown out." The back window was undamaged. The windshield was cracked.
When Bryan looked up the hill to where the other automobile had traveled, it appeared to be stopped. He thought its brake lights were shining. He could see the back of the other automobile and "probably the, the side of the driver's side, not the front." Bryan could not see the driver of the other automobile.
"[A] couple days later" Webb City Police Officers Philliber and Spencer located the other automobile that had been involved in the accident. It belonged to defendant. Officer Philliber described its condition:
Uh, the headlight was broken out, the, uh, front left quarter panel was pushed in to, uh, the, uh, inside quite a bit, uh, almost clear back to the door on one side.
No one was around the vehicle when Officers Philliber and Spencer first examined it. They failed to locate its owner at that time. Later, Officer Philliber received other information about the location of the automobile. He went to a residence where the car had been seen. Defendant was not there and the vehicle was gone. Officer Philliber talked to an occupant of the residence and left a message for defendant. Officer Philliber requested defendant to come see him. Later that day, defendant contacted the officer and arranged to meet him at the police department. Defendant gave Officer Philliber a written statement that was admitted in evidence at trial. 2 Defendant testified at his trial that he had been fishing the day of the accident. He related the following events as having occurred as he returned from fishing:
Q. Okay. When you got done fishing, what did you do?
A. I put my gear in the car and proceeded towards Webb City.
Q. Okay. What road did you take?
A. Old Elmhurst Road.
Q. Okay. Anything occur on your trip to Webb City?
A. Yes. I came through the curves going towards Webb City, and the last curve comes up and goes to the right, and as I was coming around that curve I was struck by something.
Q. Okay.
A. And I stopped and looked in my mirrors, and I didn't see anything, and I proceeded on to Webb City.
Q. Okay. In your opinion, were you speeding at that point when you hit something or something hit you?
A. No, sir. Uh, uh, that old car just barely carried itself. It wasn't much of a rig.
Q. Did you see what, what caused the impact?
A. No, sir, I did not. I did not see it.
Q. Approximately how far did you go before you stopped and looked?
A. I would say about 50 to 60 feet.
Q. When you stopped, what did you do?
A. I looked in the rearview mirror, and I looked in the side view mirror.
Q. What did you see when you looked in your mirrors?
A. Nothing, except the, the background of the, the scenery.
Q. Okay. At that point, uh, what did you assume had happened?
A. Well, I, I thought that I had been hit by a deer because I've lived in that area most of my life. I mean, my parents lived probably a hundred yards from where this accident took place, through high school, and there's a lot of deer out there, and I thought maybe I had struck one.
Near the end of the direct examination of the defendant by his attorney, he was asked again about what occurred immediately after the accident. The following questions were asked and answers given:
Q. It is true you don't have insurance though, right?
A. Uh, yeah.
Q. Is that the reason you didn't stop.
A. No.
Q. What is the reason you didn't stop?
A. Well, I did stop.
Q. Okay. Why is it that you didn't go back then?
A. Well, I didn't see anything to go back to.
Section 577.060, the statute that establishes leaving the scene of a motor vehicle accident as a crime, provides, in pertinent part:
A person commits the crime of leaving the scene of a motor vehicle accident when being the operator or driver of a vehicle on the highway or on any publicly or privately owned parking lot or parking facility generally open for use by the public and knowing that an injury has been caused to a person or damage has been caused to property, due to his culpability or to accident, he leaves the place of the injury, damage or accident without stopping and giving his name, residence, including city and street number, motor vehicle number and driver's license number, if any, to the injured party or to a police officer, or if no police officer is in the vicinity, then to the nearest police station or judicial officer. (Emphasis added.)
Consistent with § 577.060, and with the information charging defendant with the crime, the following verdict-directing instruction 3 was read and given to the jury:
If you find and believe from the evidence beyond a reasonable doubt:
then you will find the defendant guilty of leaving the scene of a motor vehicle accident.
However, unless you find and believe from the...
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