J_ M v. Wallace

812 S.W.2d 925, 1991 Mo. App. LEXIS 1077, 1991 WL 122353
CourtMissouri Court of Appeals
DecidedJuly 9, 1991
DocketNo. 16998
StatusPublished
Cited by7 cases

This text of 812 S.W.2d 925 (J_ M v. Wallace) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
J_ M v. Wallace, 812 S.W.2d 925, 1991 Mo. App. LEXIS 1077, 1991 WL 122353 (Mo. Ct. App. 1991).

Opinions

CROW, Judge.

The Juvenile Officer of Jasper County filed a petition praying the Juvenile Division of the Circuit Court of that county to exercise jurisdiction over J_ M_ (“J_”), date of birth December 5, 1973, per § 211.031.1(3), RSMo Cum.Supp.1989,1 because J_, in violation of § 565.050, RSMo 1986, committed the class A felony of assault in the first degree, in that on or about January 28, 1990, he “knowingly caused serious physical injury to Chad Ward by repeatedly beating his head into the driveway.”

The Juvenile Division, henceforth referred to as “the trial court,” conducted an evidentiary hearing at which J_and his parents appeared, represented by counsel. Thereafter, on April 26, 1990, the trial court entered an order taking jurisdiction of J_2

[927]*927At a subsequent “disposition” hearing, the trial court placed J_on probation subject to certain conditions including specified community service and restitution to the victim for medical expenses and lost wages.

J_ appeals, presenting four assignments of error. The first asserts the trial court failed to make some essential findings. The other three challenge the sufficiency of the evidence to establish guilt of assault in the first degree.

In determining whether the evidence was sufficient to support a finding that J_ was guilty of the alleged assault, we treat the trial court’s finding as equivalent to a jury verdict, and we consider the evidence and inferences to be drawn therefrom in the light most favorable thereto. In re Fisher, 468 S.W.2d 198, 199 — 200[1] (Mo.1971).

The events culminating in the alleged assault began some time earlier. Chad Ward, bom January 28, 1971, admitted he had not liked J_“for a long period of time.” Ward had told others this, and had said he wanted to fight J_

J_, almost three years younger than Ward, testified he had been afraid of Ward since he (J_) was 13 or 14.

An incident illustrating the precarious relationship occurred in December, 1989. Ward was “out riding around” with three other young men: Casey Cole, Danny Clemons, and Jason James. They “pulled up” behind an automobile driven by Amy Cupp. Chris Torres was in the passenger seat of Amy’s vehicle; J_was in the back seat with Julie Dunn, described as James’ “girlfriend.”

J_testified James “got out of his car and ... took a ... can of beer and just smashed it on the back of Amy Cupp’s window.”

Amy drove to a grocery store, pulled into the parking lot, and Julie got out. Amy and her remaining passengers departed.

Julie entered the car occupied by James, Ward, and their companions. She told James that Amy and her passengers were going to a party “in Sunnyvale.”

James, Ward, Cole and Clemons, accompanied by Julie, drove to the Sunnyvale address. Ward testified, “We got out of the car and we went up there, and then some guys came out.” The “guys” included Steve Davis and J_

James and J_ “started exchanging words.” According to Cole, James was jealous because J_had been sitting beside Julie in Amy’s car.

J_testified: “[Ward] was yelling in the background kick his ass, and he’s a puss, trying to get his friend [James] to fight me.... [Ward] was yelling cuss words, he was calling me names and stuff.”

Ward testified Steve Davis’ older brother came outside and told Ward and his companions to leave “because he didn’t want nothing going on at his house.” Then, said Ward, “someone attacked me from behind.” Ward did not see who.

There was conflicting evidence on the identity of the attacker. J_testified he did not touch Ward. Cole testified he saw nothing happen between J_and Ward. Clemons testified J_ pushed Ward down.

Ward got up and was angry. Clemons “got a hold of him and got him in the car.” Clemons, Ward, Cole and James departed.

Another incident occurred December 30, 1989. J_ and Dorothy Duffy entered Dillon’s grocery store to purchase some items for Dorothy’s mother. Ward, who was employed there, approached them. Dorothy testified Ward yelled at J_, “I need to talk to you.” According to Dorothy, J_replied, “I don’t think you spray painted my car.”3 Dorothy quoted Ward as saying he wanted to fight J_

[928]*928Ward testified the confrontation at Dillon’s was the first time he had seen J_ since the Sunnyvale incident. Ward recounted he asked J_about that incident, and J_ replied he had hit Ward only once. Then, said Ward, “I told him I ought to hit him, but I’m at work.” Asked whether J_ said anything else, Ward responded, “He said he didn’t want any trouble from me.”

Cole testified he was present during the Dillon’s incident. His testimony generally paralleled Ward’s account. However, Cole also recalled J_saying to Ward, “Well, I ought to kick your ass.” Then, said Cole, J_turned to him and remarked, “Man, I don’t want to fight him.”

J_testified Ward said he got off work at ten o’clock and wanted J_to meet him because “he was going to fight me.” J_added, “[Ward] called me dick and pussy, and he said he would hit me if he wasn’t at work.” Then, said J_, Ward started upstairs to the “break room.” J_told Ward he (J_) was not going to be there and was not going to fight him.

Mike Bower, a Dillon’s employee, testified Ward screamed at J_from the top of the stairs, “Just come back here at ten.”

A third incident occurred on a night in mid-January, 1990. J_and a friend, Bill McBride, drove into the parking lot at a bowling alley to see whether any friends’ cars were there. A car pulled in and flashed its headlights. It was driven by Ward; Cole was a passenger.

J_ “took off as fast as I could.” Ward and Cole gave chase, but ultimately abandoned it.

In their testimony, Ward and Cole admitted the pursuit. However, added Ward, “I only chased him for a couple of blocks.” Cole recalled that when J_fled, Ward said, “Well, I guess that’s the end, he doesn’t want to fight.”

On Saturday night, January 27, 1990, Ward and Cole went to a “party” at a house in Joplin. Michelle Borusheski, “girlfriend” of Ralph McBride (older brother of Bill McBride) was “house sitting” the dwelling for the owners, who were evidently out of town. Ralph McBride arrived “approximately nine o’clock,” after Cole and Ward.

The same evening J_ and a friend, Kye Young, both sophomores in high school, attended a basketball game. Afterward, they went to Bill McBride’s place of employment. Bill, also a sophomore, joined the duo when he got off work at ten.

Bill, a member of the golf team, suggested they play the next day and his brother Ralph would play with them. Bill assumed Ralph was at the house Michelle was overseeing, so he suggested going there.

J_, Bill McBride, and Kye Young arrived at the house around 10:30. Cole answered the doorbell and, upon seeing J_, said, “Hey, J_, Chad is here.” Bill McBride and Kye Young entered. J_“turned right around and left.”

Kye Young testified Ward made “comments” about J_Kye’s testimony:

“Q. What names did he call him?
[[Image here]]
A. Dick head, that if he came back he was going to get him.
[[Image here]]
Q.

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Bluebook (online)
812 S.W.2d 925, 1991 Mo. App. LEXIS 1077, 1991 WL 122353, Counsel Stack Legal Research, https://law.counselstack.com/opinion/j_-m-v-wallace-moctapp-1991.