State v. Williams

• Decision Date: 02 January 1990
• Docket Number: 56165,Nos. 53874,s. 53874
• Citation: 784 S.W.2d 309
• Parties: STATE of Missouri, Plaintiff/Respondent, v. Hurley WILLIAMS, Defendant/Appellant. Hurley WILLIAMS, Plaintiff/Appellant, v. STATE of Missouri, Defendant/Respondent.
• Court: Missouri Court of Appeals

Page 309

784 S.W.2d 309

STATE of Missouri, Plaintiff/Respondent, v. Hurley WILLIAMS, Defendant/Appellant.

Hurley WILLIAMS, Plaintiff/Appellant, v. STATE of Missouri, Defendant/Respondent.

Nos. 53874, 56165.

Missouri Court of Appeals,

Eastern District,

Division Four.

Jan. 2, 1990.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Feb. 6, 1990.

Application to Transfer Denied March 13, 1990.

William J. Shaw, Public Defender, Douglas D. Koski, Asst. Public Defender, Clayton, and Cheryl Rafert, St. Louis, for appellant.

William L. Webster, Atty. Gen., Ronald L. Jurgeson, Asst. Atty. Gen., Jefferson City, for respondent.

CARL R. GAERTNER, Judge.

This is a consolidated appeal from appellant's jury conviction of assault in the first degree, RSMo. § 565.050 (1986) and the denial of appellant's motion to vacate his 30 year sentence pursuant to Rule 29.15. We affirm.

From the evidence adduced at trial, the jury could have found the following facts. On August 8, 1985, Barbara Johnson, the victim, was sitting on her porch at 6303 Hobart in St. Louis County talking to her neighbor, Fletcher Brassell. Appellant appeared whereupon he and the victim, with whom he had previously lived, began discussing a debt appellant felt he was owed. Mr. Brassell started across the street toward his home. Ms. Johnson then got up and began to follow Mr. Brassell. While she was crossing the street, appellant came up behind her and cut her on the neck with a knife. Ms. Johnson began running and yelled for Mr. Brassell to call the police. Appellant caught up with Ms. Johnson on the opposite side of the street and tried to attack her again. This time Ms. Johnson was able to knock appellant down and retrieve the knife, and she then fled to Mr. Brassell's house. Mr. Brassell did not see the first attack as his back was turned. Nor did he observe Ms. Johnson obtain possession of the knife as he was trying to get to the telephone to call the police. As appellant followed Ms. Johnson into the house, Mr. Brassell heard him say "give me my knife or something like that...." Another tussle ensued as Mr. Brassell got them apart. Mr. Brassell saw that Ms. Johnson had possession of the knife at that time and that she was bleeding from a laceration on her neck. When the police arrived appellant broke away from Mr. Brassell and ran. He was not apprehended by the police until after Ms. Johnson had been taken to the hospital.

Just one week prior to this incident, appellant and Ms. Johnson were involved in a similar altercation in the City of St. Louis. On that occasion the victim suffered a five-inch laceration on her neck and a two-inch laceration on her arm. The neck wound required several stitches, and hypertrophic scars remained. Appellant was convicted of assault in the first degree as a result of that attack, which we upheld on appeal. State v. Williams, 740 S.W.2d 244 (Mo.App.1987).

Appellant contends the evidence was insufficient to support a conviction of first degree assault. In reviewing this point, we are guided by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), which establishes that in challenges to the sufficiency of the evidence the relevant inquiry is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573. (emphasis in original). We therefore accept the State's evidence as true, resolving reasonable inferences in favor of the State and disregarding evidence and inferences to the contrary. State v. Gardner, 741 S.W.2d 1, 9 (Mo. banc 1987); cert. den. 486 U.S. 1025, 108 S.Ct. 2001, 100 L.Ed.2d 232 (1988). With this in mind we scrutinize the evidence adduced at trial.

The gist of appellant's challenge to the sufficiency of the evidence is his contention the State failed to prove he attempted to kill or knowingly cause serious physical injury to Ms. Johnson. Viewing the facts in the light of the principles set forth above clearly shows appellant's contention to be meritless. Direct proof of mental state is rarely available and must usually be inferred from the circumstances surrounding the assault. State v. Brown, 660 S.W.2d 694, 699 (Mo. banc 1983); State v. Jones, 716 S.W.2d 315, 319 (Mo.App.1986). To infer that one who by means of a knife inflicts a three inch laceration upon the neck of a fleeing woman intended to kill or cause serious physical injury does not require speculation or conjecture, especially in view of the similar episode which occurred one week before. Despite the description of the laceration in the hospital record as "superficial," because of keloid formation of the scar tissue, the wound resulted in serious disfigurement, hence, a serious physical injury. § 556.061(26) RSMo.1986.

Appellant next contends the trial court erred in refusing to give an instruction on assault third degree, RSMo. § 565.070 (1986) a lesser included offense of assault first degree. Instructing down is required pursuant to RSMo. § 556.046.1 (1986), but only if the evidence provides both a basis for a verdict acquitting of the greater offense and convicting of the lesser. RSMo. § 556.046.2 (1986). The court must resolve all doubts in favor of instructing down. State v. Dorsey, 724 S.W.2d 610, 611 (Mo.App.1986).

Appellant contends the criteria of § 556.046.2 are met by Fletcher Brassell's testimony. Mr. Brassell testified he did not see the altercation in the street. He only observed the scuffle between appellant and Ms. Johnson that took place in his home while he was calling the police. It was at that time he saw a bleeding cut on Ms. Johnson's neck and the knife in her hand. Appellant claims this gives rise to a reasonable inference that Ms. Johnson's injury was a reckless result of that scuffle.

Appellant's argument would require drawing an inference of affirmative fact, that fact being he recklessly or with criminal negligence cut Ms. Johnson with a knife during the scuffle inside the house, from Mr. Brassell's negative testimony that he had not observed the bleeding cut on her neck until that scuffle ensued. Appellant overlooks Mr. Brassell's testimony that his back was turned during the altercation in the street and that he was trying to get to the telephone when the indoor scuffle began. No inference arises from one's failure to see what one never looked at. Moreover, Mr. Brassell's testimony, upon which appellant relies for support of his submitted instruction on assault in the third degree, establishes the appellant could not have cut Ms. Johnson with a knife in the house, either intentionally, recklessly, or with criminal negligence. Mr. Brassell said that as appellant entered the house he was demanding that Ms. Johnson return his knife and that she retained possession of the knife until after the scuffle was over. Mere disbelief of the State's evidence may be a sufficient basis for acquitting a defendant of the charged offense. However, "[e]ven if the jury were to 'disbelieve some of the evidence of the State, or decline to draw some or all of the permissible inferences, (this) does not entitle the defendant to an instruction otherwise unsupported by the evidence, on the issue ...' " of reckless assault as submitted by defendant. State v. Olson, 636 S.W.2d 318, 321 (Mo. banc 1982), quoting from State v. Achter, 448 S.W.2d 898, 900 (Mo.1970). The fact that Mr. Brassell did not observe the bleeding until the scuffle inside the house does not constitute probative evidence requiring an instruction on assault in the third degree. Point denied.

Appellant next argues the trial court erred in allowing into evidence testimony and photographs concerning appellant's assault of the victim one week prior to the assault in issue here. Evidence of prior crimes is inadmissible unless it tends to show (1) motive, (2) intent, (3) absence of mistake or accident (4) common plan or scheme, or (5) identity. State v. Kenley, 693 S.W.2d 79, 81 (Mo. banc 1985), cert den. 475 U.S. 1098, 106 S.Ct. 1500, 89 L.Ed.2d 900 (1986). While acknowledging this, appellant goes on to assert that none of the exceptions apply and at any rate the evidence's prejudicial effect outweighed its probative value. We disagree. The evidence of the prior attack, which was not remote in time, was relevant to show appellant's animus towards Ms. Johnson and his intent to inflict injury. See State v. Wright, 735 S.W.2d 137, 140 (Mo.App.1987). The trial court is in the best position to evaluate the potential prejudicial effect of evidence, State v. Kenley, 693 S.W.2d at 81, and the decision is within the trial court's discretion. State v. Bannister, 680 S.W.2d 141, 147 (Mo. banc 1984), cert. den. 471 U.S. 1009, 105 S.Ct. 1879, 85 L.Ed.2d 170 (1985). We find no abuse of that discretion. Point denied.

Appellant's fourth claim is that the trial court erred in refusing to allow cross-examination of the victim and direct examination of a defense witness relating to the victim's supposed aggressive and violent behavior. Appellant contends such evidence would have shown that the victim was the initial aggressor in the assault.

When self-defense is asserted, evidence of a victim's reputation for violence is generally admissible to show who was the aggressor. State v. Arney, 731 S.W.2d 36, 40 (Mo.App.1987). Specific acts of violence by the victim are admissible when the acts are directed toward the defendant. Id. Here, appellant attempted to elicit testimony from Pearline Williams, his wife, concerning specific instances of past disputes between Mrs. Williams and Ms. Johnson. One alleged dispute involved Ms. Johnson assaulting Mrs. Williams, and the other involved Mrs. Williams allegedly breaking the windows of Ms. Johnson's house.

Appellant urges in his reply brief that we abandon the rule limiting evidence of the victim's character to reputation evidence. More...