State v. Thompson

Citation147 S.W.3d 150
Decision Date28 October 2004
Docket NumberNo. 25596.,25596.
PartiesSTATE of Missouri, Respondent, v. Leonard C. THOMPSON, Appellant.
CourtCourt of Appeal of Missouri (US)

Daniel E. Hunt, Bandre, Hunt Snider, L.L.C., Jefferson City, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Dora A. Fichter, Asst. Atty. Gen., Jefferson City, for respondent.

ROBERT S. BARNEY, Judge.

Appellant Leonard C. Thompson ("Appellant") appeals his conviction for two counts of the Class B misdemeanor of negligent operation of a vessel, violations of section 306.111.1, and one count of the Class D felony of leaving the scene of a vessel accident, a violation of section 306.141.1 After the trial court denied his motion for new trial and judgment of acquittal notwithstanding the verdict, Appellant was sentenced to concurrent terms of three months in jail on each count of negligent operation of a vessel and one year in jail for leaving the scene of a vessel accident.

"`A trial court has great discretion in determining whether to grant a new trial.'" State v. Ginn, 31 S.W.3d 454, 457 (Mo.App.2000) (quoting McGraw v. Andes, 978 S.W.2d 794, 801 (Mo.App.1998)). "Its decision is presumed to be correct and will be reversed on appeal only for an abuse of discretion." Id. "In order for the trial court to grant a motion for new trial, the error complained of as a basis for the motion must be prejudicial to the party seeking the new trial." Balke v. Central Mo. Elec. Coop., 966 S.W.2d 15, 25 (Mo.App.1997). "The complaining party must show that some trial error or misconduct of the prevailing party was responsible for prejudicing the jury." Ginn, 31 S.W.3d at 457.

In determining "whether to grant [Appellant's] motion for judgment of acquittal notwithstanding the jury's verdict, the trial court was required to view the evidence and inferences in the light most favorable to the verdict and disregard all contrary evidence and contrary inferences." State v. Couch, 793 S.W.2d 599, 601 (Mo.App.1990). "With the evidence so viewed, the trial court was then required to determine whether the evidence was sufficient for twelve reasonable persons to have found the defendant guilty as charged beyond a reasonable doubt." Id. "`A reasonable doubt is a doubt based upon reason ... and proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt.'" Id. (quoting State v. Nichols, 725 S.W.2d 927, 930 (Mo.App.1987)). "Credibility of witnesses and inconsistencies in testimony are for the jury to consider." State v. West, 939 S.W.2d 399, 401 (Mo.App.1996).

Viewing the evidence in the light most favorable to the jury's verdict, State v. Smith, 81 S.W.3d 657, 659 (Mo.App.2002), the record reveals that on the evening of July 28, 2000, Appellant parked his boat at Aqua Pizza, a restaurant located on the Lake of the Ozarks in Camden County, Missouri.2 During the course of serving drinks to people on his boat and "partying", Appellant came into contact with Dacia Baumli ("Baumli") and Marney Nieters ("Nieters"). At approximately 3:00 a.m., Nieters asked Appellant if he could give her and Baumli a ride back to the location where their vehicles were parked. Appellant agreed.

At some point during the boat trip, Baumli and Nieters were both in the below deck portion of Appellant's boat when Appellant came down to join them. Baumli stated that Appellant remained below deck "messing with the stereo" for three or four minutes. Nieters testified that she asked Appellant "if you could actually leave the steering wheel of a boat while it was running" and he replied that "it was fine." While Appellant and Baumli remained downstairs, Nieters went topside. When Nieters reached the cockpit of the boat, "the boat was meandering, idling around and headed toward the shore." The boat was within one hundred feet of the shore before Nieters was able to turn the steering wheel and point the boat away from the shore. Thereafter, Nieters "ran down to try to get [Appellant] to come back and drive the boat, because [she] didn't know how to drive [the boat]."

Appellant returned to the steering wheel "a minute later" and once behind the wheel, "he started increasing his speed." According to Nieters, Appellant "flipped on the GPS because he didn't know where we were" and in her opinion, the boat "appeared ... to be going fairly fast, if not as fast as it would go." Nieters, who was concerned about the poor visibility on the lake due to the late hour and the fact that "[i]t was misting, kind of rainey [sic], foggy" outside, asked Appellant to slow down. Nieters testified the speed limit on the lake was thirty miles per hour and she observed that the speedometer on Appellant's boat registered thirty-eight miles per hour. She again warned Appellant about his speed and reminded him that the water patrol had been vigilantly enforcing the speed limit; but according to Nieters, Appellant commented that he knew the water patrol officers and failed to slow the boat down. Despite her repeated requests to slow down, Appellant "quit paying attention" to Nieters and turned away from her.

As the boat came up on a toll bridge, Appellant "slowed down to an idle ... [a]nd then [they] went through the bridge and as soon as [they] were through the bridge and away from the pylons [Appellant] full throttled again" and accelerated to thirty-eight miles per hour. According to Nieters, the boat was traveling at such a fast rate that it "was on plane" and riding on top of the water.

Suddenly, the boat impacted dry land. Nieters "flew forward" and "then [the boat] turned on it's [sic] side." Nieters, who was unaware that they had hit dry land, rushed downstairs to check on Baumli, and requested lifejackets from Appellant because she believed that the boat was sinking. Baumli stated the impact of the crash sent things flying around the cabin, including a TV, and the boat was tilted to the side in such a way that she had a difficult time climbing the stairway. It was not until several minutes later that Baumli and Nieters determined the boat had collided with the shoreline of the Porto Cima golf course.

Following the impact, Appellant tried to "drive the boat off the golf course" even though one of the propellers was out of the water. The boat did not move. Nieters and Baumli had to climb down the boat's bumper and jump about seven feet to the ground in order to exit the vessel. The women then told Appellant that they were going to call the water patrol using Baumli's cellular phone and Appellant, who was "[s]taggering," took off into the shadows before the authorities arrived. Nieters, who hit the boat's dashboard, suffered "bruises and bumps and scratches;" an injury to her stomach; a "[l]arge black and blue mark" across her chest; and a cut to her foot. The force of the impact caused Baumli to be thrown from her position on the couch and as a result she suffered a scraped ankle; lots of bruises; and, various injuries to her neck, back and ankle.

James Pragman ("Pragman") and Todd Hurt ("Hurt") of the Missouri State Water Patrol arrived on the scene twenty to thirty minutes after the accident. Pragman testified that when he arrived at the scene he "saw a white boat, 44 foot Searay cruiser sitting on the bank located at the Porto CIMA Golf Course. Approximately 42 feet of that 44 foot boat was sitting on the bank. Only about two foot [sic] of it was sitting in the water." Hurt stated that when the boat ran onto the bank it cut a water line and caused a lot of damage to the grass on the edge of the golf course. When Pragman and Hurt were unable to find Appellant at the scene, they visited his home, however, they did not find him at that location either. The following day, Appellant telephoned the water patrol and informed them that he was not injured and that he would not answer any questions about the boat wreck.

Appellant did not testify at trial. Appellant was convicted of the three criminal counts detailed above, and was sentenced to concurrent terms of three months on each count of negligent operation of a vessel and one year in jail for leaving the scene of a vessel accident.

Appellant alleges seven points of trial court error.

Appellant's first two points maintain the trial court erred in denying his request for a directed verdict. First, Appellant asserts that a directed verdict was appropriate because "venue was not established in that it [sic] there was no evidence presented that the crime occurred in Camden County, Missouri." Second, Appellant asserts there should have been a directed verdict granted on Counts I and II because the State failed to prove Appellant was intoxicated at the time of the boat wreck. Appellant's third and fourth points posit error in the jury instructions utilized by the trial court. Specifically, Appellant maintains "the jury instructions were incorrect" and that "the jury was misinstructed," because Appellant was convicted of two counts of negligent operation of a vessel which resulted in "convicting Appellant of the same crime twice." Appellant's fourth point asserts that the Count II verdict director was erroneous "because it did not reflect what was charged in the information in that it inserted the language of knowledge of property damage rather than knowledge of bodily injury as was charged." Appellant's fifth point posits the trial court erred in not specifically answering a note from the jury that demonstrated that the jury was confused about the instructions given to it by the trial court. In his sixth and seventh points, Appellant challenges the sufficiency of the evidence to support his conviction: his sixth point asserts that the State did not prove beyond a reasonable doubt that Appellant knew he had caused damage to the golf course; and the seventh point posits the State failed to prove that there was actual property damage to the golf course. We review each point seriatim.

In his first point on appeal, Appellant mai...

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