State v. Woodmansee

• Decision Date: 17 October 2006
• Docket Number: No. 27198,27198
• Citation: 203 S.W.3d 287
• Court: Missouri Court of Appeals
• Parties: STATE OF MISSOURI, Plaintiff-Respondent, v. THEODORE JAMES WOODMANSEE, Defendant-Appellant.

203 S.W.3d 287

STATE OF MISSOURI, Plaintiff-Respondent, v. THEODORE JAMES WOODMANSEE, Defendant-Appellant.

No. 27198

Missouri Court of Appeals, Southern District, Division Two.

October 17, 2006

Nancy A. McKerrow of Columbia, MO, for Appellant's.

Jeremiah W. (Jay) Nixon, Atty. Gen., Cecily L. Daller, Asst. Atty. Gen. of Jefferson City, MO., for Respondent's.

Jeffrey W. Bates, Chief Judge

Theodore J. Woodmansee (Defendant) was charged by amended information with the commission of the following offenses: (1) Count I — the class A felony of assault of a law enforcement officer in the first degree in violation of § 565.081; and (2) Count II —the class C felony of assault of a law enforcement officer in the second degree in violation of § 565.082.¹ In addition, the information alleged that Defendant was a prior and persistent offender. Prior to trial, the court made an express finding to that effect on the record. Defendant was found guilty of both offenses by a jury. The court imposed consecutive sentences of imprisonment for 25 years on Count I and 10 years on Count II.

Defendant presents one point on appeal. He contends the trial court erred in failing to sustain his objection to a statement during the prosecutor's rebuttal argument which misstated the evidence and thereby prejudiced his defense. We affirm.

I. Factual and Procedural Background

As Defendant does not challenge the sufficiency of the evidence to sustain his convictions, we consider the facts and all reasonable inferences derived therefrom in a light most favorable to the verdict. State v. Dillard, 158 S.W.3d 291, 294 (Mo. App. 2005). We disregard all contrary evidence and inferences. State v. Lawrence, 64 S.W.3d 346, 348-49 (Mo. App. 2002). Viewed from that perspective, the favorable evidence and inferences supporting the State's case against Defendant are summarized below.

The Southwest Fugitive Task Force (Task Force) is a collaborative effort by several law enforcement agencies to locate and arrest fugitive suspects in southwest Missouri. The Task Force includes officers from the United States Marshal's Office, the Missouri Highway Patrol, the Greene County Sheriff's Office and the Missouri Department of Corrections. Defendant was wanted on an outstanding federal arrest warrant, and the Task Force had been seeking information concerning Defendant's whereabouts for several weeks.

On September 10, 2004, the Greene County Sheriff's Office received information that Defendant could be found at a residence on North Ethyl Street in Springfield, Missouri. This information was communicated to the Task Force, and a number of officers were dispatched to that location to arrest Defendant. The officers included Greene County Detective Jim Stanley (Stanley), Greene County Lieutenant Randall Gibson (Gibson), Missouri Highway Patrol Sergeant Robert Proctor (Proctor), Special Deputy United States Marshal Terry Kenslow (Kenslow), Deputy United States Marshal Mike Walker (Walker) and Deputy United States Marshal Randy Aug (Aug).

The Task Force officers met for a security briefing near the residence where Defendant was believed to be staying and received their respective assignments for securing the house. All of the officers were armed. Gibson and Proctor were in uniform. Stanley, Kenslow, Walker and Aug were dressed in civilian clothes, but each was wearing a tactical vest that identified him as a law enforcement officer.² The officers engaged in surveillance of the premises until Defendant arrived. Once that occurred, they converged on the house. Stanley, Proctor, Aug and Walker entered the front yard and immediately restrained four individuals located there by making them lie down on the ground.

Kenslow was the first officer to run to the back of the house. When he arrived in the back yard, he saw Defendant standing between the back of a pickup truck and a privacy fence. Kenslow drew his sidearm and held it in his right hand with the muzzle pointing downward. Defendant saw Kenslow and began to run away with Kenslow in pursuit. Defendant then stopped, turned around and said "Oh no, you don't" or "Oh no, you won't." Raising his right arm to strike, he charged directly at Kenslow. The officer tried to block the blow using his left arm while continuing to hold his gun, muzzle downward, in his right hand. The attempted parry was unsuccessful, and Defendant hit Kenslow's left arm and the side of his head. The impact knocked off Kenslow's eyeglasses. He responded by using both arms to grab Defendant around the chest in a "bear hug." Defendant's right arm was free, and he used his fist and elbow to repeatedly strike Kenslow in the head and shoulder. Kenslow held his gun away from Defendant and tried to reholster the weapon while maintaining a hold on Defendant. While pummeling Kenslow, Defendant dragged the officer toward the privacy fence. At some point, Kenslow lost his gun. As he was beaten, his grip on Defendant got lower, and he wound up holding onto Defendant's legs.

When Kenslow first entered the back yard, Gibson was about twenty to thirty yards away. He heard someone in the back repeatedly shouting for help. Upon entering the back yard, Gibson saw Kenslow fighting with Defendant and holding him around the waist in a frontal bear hug. Defendant's arms were free, and he was using both fists to repeatedly and violently punch Kenslow in the head and upper shoulders. As Defendant beat Kenslow, his grip slid down Defendant's body to around the knees and his legs flailed out behind him. Defendant dragged Kenslow across the ground toward a break in the privacy fence surrounding the back yard. Since Gibson did not see a weapon in either man's hands, he set his shotgun aside and drew his taser. By that time, Proctor, Walker and Aug had come into the back yard and also were observing the altercation between Defendant and Kenslow.

As Gibson moved toward Defendant with the taser, Defendant reached inside his shirt and pulled out a large knife from the small of his back. Defendant initially pointed the blade downward at Kenslow, and Aug was afraid Defendant was going to stab Kenslow. Instead, Defendant looked up and saw Gibson. Defendant then turned the knife around so that he was holding it by the blade, drew it back and threw it "very hard" in an overhand motion directly at Gibson's face. Gibson, who was about seven feet away, ducked and moved slightly to his left. The knife whistled over his right shoulder just inches from his ear and struck a wooden playground set behind him. After Defendant threw the knife, he was able to get his left leg free of Kenslow's grasp. Defendant had turned and appeared ready to break free and run when Gibson fired the taser. The device incapacitated Defendant and caused him to stop resisting arrest. Aug held Defendant's hands so handcuffs could be applied and heard him say "he would rather be shot or killed than go to jail."

Kenslow was sitting on the ground with a dazed expression on his face. He had been struck with great force several times in the head and neck. His eyes were unfocused, and he was very disoriented. He appeared confused and responded inappropriately when questioned. His gun was lying on the ground about five or six feet behind him. He was taken to the hospital and diagnosed as having an acute head injury and a possible concussion.

At trial, the State called Stanley, Gibson, Kenslow, Proctor, Walker and Aug as witnesses. During Gibson's testimony, the court admitted Exhibit 11 in evidence. This exhibit was a large, non-scale diagram of the premises where Defendant was captured. Each officer used the diagram to help the jury understand what had happened and to record the approximate locations where particular events occurred. During Gibson's testimony, he marked the locations where: (1) he first saw Defendant and Kenslow fighting; (2) Kenslow's weapon was found; and (3) Defendant and Kenslow fell to the ground.

Defendant did not testify at trial. His theory of defense was elicited via cross-examination of the State's witnesses and through the testimony of one witness he called in his case. During the State's case, Defendant's attorney cross-examined Stanley about a statement Defendant made after he was captured. Stanley was the officer who gave Defendant his Miranda warning before he was taken to jail.³ According to Stanley, Defendant said he did not want to hurt the officers; he just wanted to get shot. Stanley had Defendant placed on suicide watch at the jail. Defendant also cross-examined Kenslow about the appearance of his clothing and the absence of any announcement by him that he was a police officer before the affray began. During Defendant's case, he called an acquaintance, Terri Reaves. She testified that on the day of the incident, Defendant told her he would do whatever he had to do to make the police shoot him. He kissed Reaves good-bye and said this was the last time she would see him alive.

When the case was submitted, the jury was instructed on three charges. Instruction No. 5 submitted assault of a law enforcement officer in the first degree for attempting to kill or cause serious physical injury to Gibson by throwing a knife at him. Instruction No. 7 submitted the lesser-included offense of assault of a law enforcement officer in the second degree for purposely placing Gibson in apprehension of immediate serious physical injury by throwing a knife in his direction. Instruction No. 8 submitted assault of a law enforcement officer in the second degree of knowingly causing physical injury to Kenslow by hitting him in the head.

During Defendant's closing argument, his attorney argued for an acquittal on Count II because the evidence did not prove that Defendant knew Kenslow was a police officer. As to Count I, defense counsel conceded that the jury would convict Defendant. The only issue was Defendant's intent, which would determine whether he was guilty of the greater or lesser offense. C...