State v. Thomas

• Decision Date: 18 November 2008
• Docket Number: No. ED 90393.,ED 90393.
• Citation: State v. Thomas, 272 S.W.3d 421 (Mo. App. 2008)
• Parties: STATE of Missouri, Plaintiff/Respondent, v. Gary R. THOMAS, Defendant/Appellant.
• Court: Missouri Court of Appeals

272 S.W.3d 421

STATE of Missouri, Plaintiff/Respondent, v. Gary R. THOMAS, Defendant/Appellant.

No. ED 90393.

Missouri Court of Appeals, Eastern District, Division Four.

November 18, 2008.

Motion for Rehearing and/or Transfer to Supreme Court Denied December 29, 2008.

Julie L. Brothers, Frank, Juengel & Radefeld, Clayton, MO, for Appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Jayne T. Woods, Assistant Attorney General, Jefferson City, MO, for Respondent.

OPINION

MARY K. HOFF, Judge.

Gary R. Thomas (Defendant) appeals from the judgment upon his conviction by a jury for second-degree assault, Section 565.060, RSMo 2000,¹ for which Defendant was sentenced to five years' imprisonment. On appeal, Defendant argues the trial court erred: (1) in overruling Defendant's motion for judgment of acquittal at the close of all evidence and in entering a judgment of conviction against Defendant because the State failed to make a submissible case for second-degree assault; (2) in overruling defense counsel's objection to the inclusion of racial epithets used during the assault on Sanchez Jackson (Victim); (3) in excluding Defendant's Exhibit A, an audiotape recording of Defendant's 911 call regarding a hit and run accident prior to the assault on Victim; (4) in excluding evidence from the penalty phase of Defendant's trial relating to the consequences of Defendant receiving a felony conviction; (5) in allowing the prosecutor to argue on rebuttal during the penalty phase closing argument that Defendant was given an opportunity for probation because such references were improper and prejudicial; and (6) in allowing State's Exhibit 15, an audiotape recording of Victim's 911 call following the assault, to be played in front of the jury. We affirm.

Factual and Procedural Background

Defendant challenges the sufficiency of the evidence to support his second-degree assault conviction. Viewed in the light most favorable to the verdict, the following evidence was adduced at trial: Victim was working as a "thrower" on a trash truck owned by American Eagle Waste Industry. Matt Raddatz (Raddatz) was driving the truck on their trash route when a car pulled up to the truck. Defendant's son jumped out of the car and began accusing Victim of hitting his car. Victim told Defendant's son, "I'm not driving, you have to talk to the driver." Defendant's son retorted, "Well, you had to see something. I know you seen something." Victim again responded that he had not seen anything, and that he was "just trying to do [his] job and go home." Defendant's son then looked around the side of the truck, got back into his car, and left. Victim and Raddatz continued their work on the trash route.

Approximately one minute later, Defendant's son returned to the trash truck with Defendant who had just called 911 to report a "hit and run" accident. Upon arriving at the accident site, Defendant's son used the car to block the trash truck from leaving. Defendant walked quickly past Raddatz, approached Victim and called him a "n[____]er" and told him he "needed to mind [his] own business." Defendant also yelled at Victim, "you f[____]ing n[____]er, you hit my son's car. Why you f[____]ing lying. Admit that you hit the f[____]ing car, you stupid n[____]er." Victim called Defendant a "motherf[____]er" and told Defendant not to disrespect him. Defendant and his son continued walking toward Victim, who told the men he "didn't want any problems" and began backing away. Defendant ran toward Victim and began hitting him in the face. Victim swung back, striking Defendant.

Defendant and his son then jumped on Victim. One wrestled with Victim while the other hit Victim. Eventually, Victim fell to the ground, and Defendant jumped on Victim's back and began choking him while Defendant's son kicked Victim repeatedly in the face. They told Victim, "stupid n[____]er, you['re] gonna die," and "[y]ou f[____]ing n[____]er, I'm going to kill you. I'm going to strangle you to death, you f[____]ng n[____]er." Raddatz tried to break up the fight by pushing Defendant's son away from Victim. After pushing Defendant's son away, Raddatz tried to pry Defendant off of Victim, but Defendant's son ran back up and continued kicking Victim in the face.

Eventually, Victim was able to bite Defendant's arm hard enough to free himself from Defendant's grasp. Defendant stood up and said, "This n[____]er just bit me." Defendant's son kicked Victim again before Victim was able to stand up and run away. Victim ran to a nearby Papa John's Pizza store and called 911.

In his 911 call, Victim told the dispatcher that he had just been "jumped" by two men who had kicked him in the head. Victim told the dispatcher, "[m]y nose is busted," and "[m]y head is sore and I can't breath[e]." Victim told the dispatcher, "my head [is] hurting so bad I can't even think right now."

After Victim fled, Defendant and his son turned towards Raddatz, called him a "n[____]er lover," and told him they were going to kill him and blow up his house because he was a "n[____]er lover." Raddatz retreated and told Defendant and his son that "the cops are coming."

One police car responded to the scene of the assault, while another went to Papa John's to respond to Victim's call. Victim was brought back to the scene, and, when he arrived, Defendant indicated to the police, "[t]here's the stupid f[____]ing n[____]er right there." After taking statements, the police arrested Defendant and his son. Victim was transported to the hospital, examined, and subsequently advised that he needed surgery.

Defendant was subsequently charged with first-degree assault. Defendant was tried jointly with his son before a jury. At trial, there was expert testimony that Victim's injury posed a substantial risk of death.

The jury found both men guilty of the lesser-included offense of second-degree assault, as submitted in Instruction 7, and recommended a term of five years' imprisonment for Defendant and one year in the county jail for Defendant's son. The trial court followed the jury's recommendation and sentenced Defendant to five years' imprisonment. This appeal follows.

Sufficiency of the Evidence

In his first point, Defendant argues the trial court erred in overruling Defendant's motion for judgment of acquittal at the close of all evidence and in entering a judgment of conviction against Defendant because the State failed to make a submissible case for second-degree assault. Defendant argues the evidence was insufficient to show that his actions caused Victim's serious physical injuries. Defendant argues the "elective" surgery Victim underwent caused his serious physical injuries, rather than any actions by Defendant. We disagree.

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. Smith, 242 S.W.3d 735, 739 (Mo.App. S.D.2007) (citing State v. Chaney, 967 S.W.2d 47, 52 (Mo. banc 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. Id. (citing State v. Belton, 153 S.W.3d 307, 309 (Mo. banc 2005)). We review the evidence in the light most favorable to the verdict, granting the State all reasonable inferences from the evidence and disregarding contrary inferences that are not such a natural, logical extension of the evidence that a reasonable juror would be unable to ignore them. State v. Breese, 250 S.W.3d 413, 420 (Mo.App. S.D.2008) (citing State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001)).

Section 565.060.1(3) provides: "A person commits the crime of assault in the second degree if he: ... (3) Recklessly causes serious physical injury to another person." "Physical injury" means "physical pain, illness, or any impairment of physical condition." Section 556.061(20). "Serious physical injury" means "physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body." Section 565.002(6). Moreover, a person is criminally responsible for assault in the second degree, by whatever means it was accomplished, provided his unlawful act proximately caused the resulting injury. State v. Brown, 937 S.W.2d 233, 235 (Mo.App. W.D.1996); State v. Toran, 878 S.W.2d 913, 914 (Mo.App. E.D.1994).

Here, the record shows that the injury Victim sustained as a result of Defendant's actions constituted serious physical injury before he had surgery. Before surgery, Victim suffered serious disfigurement and a protracted impairment of the functioning of his sinuses. In his 911 call, Victim told the dispatcher, "My nose is busted. I got knots on my head." He also informed the dispatcher, "My head is sore and I can't breath[e]."

At trial, Dr. Stanley Librach (Dr. Librach), a plastic surgeon, testified that when he examined Victim, he immediately noticed that Victim's forehead had a depression like a divot. Dr. Librach recommended surgery to remove bone fragments resulting from a fractured frontal sinus. Dr. Librach testified that after removing bone fragments, he had to clean out Victim's sinus cavity to avoid the risk of infection. Dr. Librach testified that after this type of injury and surgery, the sinus is no longer functional. Dr. Librach testified that the surgery itself created a substantial risk of death from infection. Victim also testified that, as a result of the assault, he suffers from memory loss, trouble sleeping, and serious headaches.

Contrary to Defendant's assertion that Victim's surgery was "elective," the evidence showed Victim's surgery was required. Victim testified that a week after the assault, he was told that he "had to get surgery done." The reconstructive surgery was the foreseeable result of Defendant's actions; therefore, any resulting "injury" from the surgery was proximately caused by Defe...