State v. Steger

• Decision Date: 14 November 2006
• Docket Number: No. ED 86872.,ED 86872.
• Citation: 209 S.W.3d 11
• Parties: STATE of Missouri, Respondent, v. Ray R. STEGER, Appellant.
• Court: Missouri Court of Appeals

209 S.W.3d 11

STATE of Missouri, Respondent, v.Ray R. STEGER, Appellant.

No. ED 86872.

Missouri Court of Appeals, Eastern District, Division Two.

November 14, 2006.

Motion for Rehearing and/or Transfer to Supreme Court Denied December 14, 2006.

COPYRIGHT MATERIAL OMITTED

Michael A. Gross, St. Louis, MO, Albert C. Lowes, Cape Girardeau, MO, for appellant.

Shaun J. Mackelprang, Karen L. Kramer, Jefferson City, MO, for respondent.

OPINION

GEORGE W. DRAPER III, P.J.

Ray Steger(hereinafter, "Steger") appeals from the trial court's judgment after a jury found him guilty of two counts of assault in the first degree, Section 565.050.1 RSMo (2000)¹, two counts of armed criminal action, Section 571.015, and one count of unlawful use of a weapon, Section 571.030.Steger was sentenced to a total of ten years' imprisonment.We reverse and remand for a new trial.

Steger does not challenge the sufficiency of the evidence to support his convictions.The facts in the light most favorable to the verdict are as follows:

Carl Barrett(hereinafter, "Barrett") lives off County Road 304 in Bollinger County at the end of a long driveway.Barrett owns a shop next to his home that he uses for farm machinery repair.Barrett's employee, Michael Towell, (hereinafter, "Towell") and his wife, Kristina (hereinafter, "Kristina") reside in a separate building several hundred yards further back from the road.Steger lives on Rural Route 4 also in Bollinger County.

Steger testified he and his wife lived on a highway that intersects County Road 304, and he used it as a route when going back and forth to work before he retired.Late on the evening of June 11th, Steger decided to stop near Barrett's property because he needed to urinate.Barrett recognized Steger and accused him of trying to steal parts from his shop.Later, Barrett stated he thought Steger was there to visit Kristina.Barrett told Steger to leave, and he did.

Steger testified he thought Barrett's behavior was odd, and he suspected Barrett and Towell were manufacturing methamphetamine.Steger testified he drove past Barrett's house every night between June 11th and June 15th in order to "sniff the air" to determine if he could smell chemicals on Barrett's property.There was never any evidence presented to indicate either Barrett or Towell were manufacturing methamphetamine.

Kristina worked at a convenience store in Marble Hill and frequently encountered Steger as one of her customers.Steger would purchase gas and miscellaneous items from the store on an almost daily basis.Kristina testified Steger was very flirtatious with her, and continued to flirt with her even after she informed him that she was married and not interested in him.Steger ignored Kristina's comments, and his actions toward her became more flirtatious and serious.Kristina testified she became uncomfortable with Steger's unwanted attention and even "a little scared."Kristina decided to take legal action and applied for an ex parte order of protection against Steger on June 15, 2004.²

On June 15th, Steger testified he was at his "old home place" repairing a fence that was damaged.He stated he took his Glock up there to do some target shooting as well.Additionally, Steger had an old .32 pistol in the glove compartment of his vehicle.When he returned home around 4:30 p.m., Deputy Kevin Otte(hereinafter, "Deputy Otte") served him with the order of protection directing him to stay away from Kristina.Deputy Otte did not tell Steger he had to stay away from Barrett's property.Steger testified he was shocked to receive the order because he thought he was polite and pleasant with Kristina.Steger denied engaging in any of the behavior Kristina alleged, specifically denying touching her or making the sexually explicit comments.Steger also relayed his concerns about Barrett and Towell manufacturing methamphetamine to Deputy Otte after he was served with the order of protection.

Later that evening, Steger testified he again drove past Barrett's property to determine whether he could smell anything indicating methamphetamine manufacturing.At this point, the parties' versions of events diverge.Steger testified he stopped his vehicle in approximately the same spot as he had on June 11th, when a flash of light caused him to turn his head suddenly.Steger stated, "As I jerked around, there were two more flashes.There was [sic] a total of three shotgun shots fired."Steger grabbed the Glock, held it out the driver's side window, emptied the clip into the air, and "got the heck out of Dodge."

Conversely, Barrett testified he was working in his shop and finished up late in the evening.Barrett walked out of his shop and saw a spotlight shining towards him from a vehicle parked down on the county road.The spotlight blinded Barrett, who was unable to see who was speaking to him from the vehicle.Barrett called out, "Who are you?What do you want?"At that point, Barrett stated two shots were fired and were aimed at him based upon his observation of two "round spots of light."Barrett thought he would have seen "a streak of light" if the shots had been fired in a different direction.

Barrett stated he sought cover in his shop.Barrett could not see the vehicle from the shop, but when he heard a vehicle passing, Barrett looked outside and believed he saw Steger from the light emitted from another passing vehicle's headlights.Barrett contacted the Bollinger County Sheriff's Department and reported Steger had fired shots at him.Barrett also called Towell for assistance.Towell got in his truck, and proceeded down the driveway with an old .12 gauge shotgun loaded with birdshot in his truck.After speaking to Towell, Barrett loaded a shotgun and stepped out of his shop.Barrett stood behind a tree, aimed his shotgun at Steger's head, and told Steger he"had called the law ... and you better leave."Steger left, driving west toward a nearby creek, heading down the road toward Towell's residence.

Meanwhile, Towell testified it was dark when he left his residence to come to Barrett's aid.Towell drove as quickly as he could, but had difficulty with his truck's headlights.Towell testified he saw Steger sitting in his vehicle at the end of their driveway with the dome light on.The passenger side of the vehicle was facing Towell, and the vehicle was approximately forty to fifty yards away.Towell thought he saw Steger reloading a clip.Steger then pointed his pistol out of the passenger side window and fired several shots at Towell.Towell returned fire with his shotgun.Barrett testified he heard additional shots as well.

After hearing gunshots, Kristina called 911 and went to the end of the driveway to check on Towell.In the meantime, Towell saw Steger move across a bridge to the side of the creek just in front of a neighbor's driveway and fire more shots.The neighbor came out and Towell told him Steger was firing shots at him.Towell enlisted the neighbor's help in retrieving the shell casings, but testified he did not move them.

Steger disputes this scenario.He denied having the passenger side window down, turning on the spotlight, driving to another location, or firing additional shots at Towell.Steger denied seeing Towell at all that evening.

Deputy Otte responded to the scene.The police found several shell casings in the area.There were metal casings near the bridge, on the side of the bridge away from the Towell residence, and in front of Barrett's house.A shotgun shell was found near Towell's truck in the driveway.

Deputy Otte, accompanied by Captain Stanley Petton, (hereinafter, "Captain Petton") left the scene to find Steger.After leaving Barrett's property, Steger testified he drove directly to a convenience store where he purchased whiskey and soda to make himself a drink.Steger was at his residence with the police arrived.When Steger came outside, Deputy Otte noticed a smell of intoxicants, but stated Steger was cooperative.When asked what he had been doing that night, Steger responded he"had a little bit to drink and just went riding around."Steger denied having any weapons on his person or in his vehicle.Captain Petton advised Steger of his Miranda rights, patted him down, and placed him under arrest.

Deputy Otte searched Steger's vehicle and found a small spotlight sitting on the passenger seat along with a .40 caliber Glock handgun and an empty magazine.The search also revealed a loaded .32 caliber Colt semi-automatic pistol in the glove compartment, three empty .40 caliber shells, and a pint of Canadian whiskey with an inch of alcohol left in it.Steger was placed under arrest and taken to the police station.

At the police station, Deputy Otte wanted to administer a breathalyzer test to Steger.The following exchange occurred during Deputy Otte's testimony during the State's case in chief:

[The State]: All right.Did the breathalyzer machine work properly at the time you ran it?

Deputy Otte: No, it did not work properly at that time.

[The State]: And did the conversation end at that point?

Deputy Otte: Shortly after.

[The State]: I believe he decided he wanted to go ahead and talk to his attorney?

Deputy Otte: Correct.

[The State]: And your procedure is you don't go any further once they do that?

Deputy Otte: Correct.

Captain Petton questioned Steger at the police station as well.In response to the prosecutor's inquiry about statements Steger made at the police station, Captain Petton testified:

What I remember him saying that he wasn't doing anything wrong.He had the right to drive anywhere he wanted to.I asked him why he picked the particular road which he had had an ex parte served on the people that lived on that road.He said it was a free country.He can drive where he wants.Said he was a retired millionaire from Proctor and Gamble.He had no reason to do the things he was up there for.I told him it was a free country.He could drive where he...