State v. Smith

Decision Date21 November 2007
Docket NumberNo. 27285.,27285.
Citation242 S.W.3d 735
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Jefferson L. SMITH, Defendant-Appellant.
CourtMissouri Court of Appeals

Jeremiah W. (Jay) Nixon, Atty. Gen., Richard Anthony Starnes, Asst. Atty. Gen., Jefferson City, MO, for Respondent.

JEFFREY W. BATES, Chief Judge.

Jefferson Smith (Defendant) appeals his convictions for second-degree assault and armed criminal action. See §§ 565.060, 571.015.1 This Court affirms.

I. Factual and Procedural Background

An appellate court considers the facts and all reasonable inferences derived therefrom in a light most favorable to the verdict and disregards all contrary evidence and inferences. State v. Chaney, 967 S.W.2d 47, 52 (Mo. banc 1998). Viewed from that perspective, the favorable evidence and inferences supporting the State's case against Defendant are summarized below.

Renee — (Renee) was widowed in December 1998. She met Defendant in 1999 and dated him for about two years. They lived about three miles away from each other. In 2001, Renee ended the relationship. Defendant would not accept Renee's decision and repeatedly harassed her by threatening her life, using his vehicle to chase her clown the road, leaving obscene messages on her answering machine and throwing a cinder block through her bedroom window. Renee obtained several restraining orders against Defendant because of his behavior.

Around midnight on April 29, 2002, Renee and her new boyfriend, Eddie Foster (Foster), returned to Renee's home in Dora, Missouri. Her home was located on a two-acre plot beside Highway 181. A driveway ran from the highway to the house. There was a garage on the premises, and some woods abutted the back side of the property behind the house. Renee's two vehicles, a Ranger truck and a Corsica automobile, were parked beside the house.

Renee and Foster had been home for 5-10 minutes when they heard loud music outside Renee's bedroom window. She looked out and saw Defendant. He was driving a black Chevrolet truck on the grass of Renee's yard right beside the window. Defendant drove back out to the highway and appeared to leave. Within a couple of minutes, Defendant returned. He pulled into the driveway, drove up next to the house and started sounding his truck horn continuously.

Renee and Foster went outside to tell Defendant to leave. Because of Renee's prior encounters with Defendant, she armed herself with a 9mm pistol. Foster also took a shotgun with him for protection because he knew that Defendant carried a gun and that he was upset with Foster for dating Renee. She screamed at Defendant to leave. When he gunned the truck's motor, Foster fired a shot into the air. Defendant drove toward Foster and started chasing him all around the yard, making figure-eight patterns and circles in the grass as Foster attempted to avoid being hit by the truck. Foster was scared as he ran to the back of the house toward the woods. He worried that he would be killed if he fell down. When he reached the trees, he dove into the edge of the woods for safety and then fired a shot at the truck in an attempt to disable it. The tire tracks from Defendant's truck led from the driveway all the way to the tree line at the back of Renee's property.

After Foster fired, Defendant struck a tree in the back yard. He drove back toward the front of the house and stopped near Renee's vehicles. As Defendant backed the truck up, it struck the rear end of the Corsica. Renee fired six or seven shots at the truck as Defendant was driving away. Renee called the Ozark County Sheriffs Department to report what had happened.

At approximately 1:30 a.m., Deputy Jason Tuck arrived at the scene to investigate. He observed tire tracks that circled in a figure-eight pattern and cut ruts into Renee's yard. The tracks indicated that someone was chased into the woods. The rear end of the Corsica was damaged. After the deputy processed the scene, he located an abandoned black truck about one-quarter of a mile away. There were bullet holes in the passenger side of the truck, and the back window had been shot out. Mail found in the truck had Defendant's name on it.

Defendant was charged by information with committing three felonies. Count I charged Defendant with the class C felony of tampering in the first degree for defacing an automobile. See § 569.080.1(2). Count II charged Defendant with armed criminal action (ACA) for using his truck as a dangerous instrument while committing the predicate felony of tampering in the first degree. § 571.015. Count III charged Defendant with the class C felony of assault in the second degree by trying to run over Foster with Defendant's truck. § 565.060.

The case was tried to a jury in May 2005. At the close of all the evidence, the trial court granted the State leave to amend the ACA charge to allege assault in the second degree as the predicate felony. Defendant was acquitted of tampering, but he was found guilty of committing second-degree assault and ACA. The trial court sentenced Defendant to serve consecutive, five-year terms of imprisonment.

II. Discussion and Decision

On appeal, Defendant presents four points for review. He challenges: (1) the sufficiency of the evidence to support his conviction for second-degree assault; (2) the trial court's jurisdiction to convict Defendant of second-degree assault; (3) the sufficiency of the predicate felony to support Defendant's ACA conviction; and (4) the trial court's decision to grant the State leave to amend the information. Finding no merit in any of these contentions, we affirm. Additional facts necessary to the disposition of the case are included below as we address Defendant's four points on appeal.

Point I—Sufficiency of the Evidence on the Second-Degree Assault Conviction

Defendant's first point challenges the sufficiency of the evidence to support his conviction for assault in the second degree. When reviewing the sufficiency of the evidence to support a criminal conviction, an appellate court gives great deference to the trier of fact. State v. Chaney, 967 S.W.2d 47, 52 (Mo. bane 1998). Our review is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. See State v. Belton, 153 S.W.3d 307, 309 (Mo. banc 2005).

Insofar as relevant here, "[a] person commits the crime of assault in the second degree if he: ... (2) Attempts to cause ... physical injury to another person by means of a deadly weapon or dangerous instrument...." § 565.060.1(2). Thus, proof that the attempt to cause physical injury was made using one of the prohibited means—a deadly weapon or dangerous instrument—is an essential element of the crime. A pickup truck quailfies as a dangerous instrument when it `IS used under circumstances in which the vehicle is readily capable of causing death or serious physical injury. § 556.061(9); State v. Williams, 126 S.W.3d 377, 385 (Mo. banc 2004); State v. Fraga, 189 S.W.3d 585, 589 (Mo.App.2006); State v. Cole, 148 S.W.3d 896, 901 n. 9 (Mo.App. 2004). Defendant does not argue otherwise. From the evidence presented, the jury could have reasonably inferred that Defendant did use a dangerous instrument to attempt to cause physical injury to Foster. Again, Defendant does not argue otherwise. He readily concedes that the evidence was sufficient to prove that he tried to run over Foster with his truck. Nevertheless, he persists in contending that the trial court erred in denying his motion for judgment of acquittal at the close of all the evidence because there was insufficient evidence to convict him of assault in the second degree "based on how it was instructed to the jury." Defendant argues that the inclusion of the language "by running over him" meant that the State had to prove Defendant actually ran over Foster in order to obtain a conviction. We disagree.

MAI-CR 3d 319.12 is the pattern jury instruction for submitting assault in the second degree. The format for submitting an attempt is specified in subsection [2], which states that the defendant "attempted to cause physical injury to [name of victim] by means of a (deadly weapon) (dangerous instrument) by [Insert means by which attempt was made such as shooting, stabbing, etc.] him...." In the case at bar, the offense of second-degree assault was submitted to the jury via Instruction No. 8. In relevant part, this instruction hypothesized that "defendant attempted to cause serious physical injury to Eddie Foster by running over him with an automobile...." The language upon which Defendant relies—"by running over him with an automobile—simply served the purpose of identifying what dangerous instrument Defendant used in attempting to cause physical injury to Foster and how the attempt was carried out with that instrument. Therefore, we conclude that there was sufficient evidence from which a reasonable juror could have found Defendant guilty of assault in the second degree beyond a reasonable doubt. See Belton, 153 S.W.3d at 309. Point I is denied.

Point II—Jurisdiction and Sufficiency of the Information to Charge Assault in the Second Degree

In Defendant's second point, he contends the trial court never acquired jurisdiction to convict and sentence Defendant for second-degree assault because of a defect in the second amended information. Section 565.060.1 provides, in pertinent part, that a person commits the crime of assault in the second degree if he:

(1) Attempts to kill or knowingly causes or attempts to cause serious physical injury to another person under the influence of sudden passion arising out of adequate cause; or

(2) Attempts to cause or knowingly causes physical injury to another person by means of a...

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