State v. Austin

411 S.W.3d 284, 2013 WL 4715659, 2013 Mo. App. LEXIS 1009
CourtMissouri Court of Appeals
DecidedSeptember 3, 2013
DocketNo. ED 98808
StatusPublished
Cited by14 cases

This text of 411 S.W.3d 284 (State v. Austin) 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
State v. Austin, 411 S.W.3d 284, 2013 WL 4715659, 2013 Mo. App. LEXIS 1009 (Mo. Ct. App. 2013).

Opinion

OPINION

MARY K. HOFF, Presiding Judge.

Daniel P. Austin (Defendant) appeals from the judgment upon his convictions by a jury for one count of second-degree assault, in violation of Section 565.060, RSMo 20001, one count of armed criminal action, in violation of Section 571.015, and one count of resisting arrest, in violation of Section 575.150, RSMo Supp.2009. The trial court sentenced Defendant, as a persistent misdemeanor offender, to seven years’ imprisonment on the assault count, seven years’ imprisonment on the armed criminal action count, and four years’ imprisonment on the resisting arrest count. The sentences for assault and armed criminal action were ordered to run concurrently to each other while the sentence for resisting arrest was ordered to run consecutively to other counts. We affirm.

Pacts and Procedural Background

Defendant does not challenge the sufficiency of the evidence to support his conviction. Viewed in the light most favorable to the verdict, the evidence adduced at trial established the following relevant facts:

On the morning of May 31, 2010, Kelli Pound (Victim) received several telephone calls from the phone number shared by Victim’s daughter (Daughter) and Defendant, who was Daughter’s boyfriend. Victim and her husband did not always get along with Defendant, and Victim did not immediately answer the phone. On the third call, Victim finally answered, and Defendant said that he wanted to talk with Daughter. Victim replied that Daughter [287]*287was not there and hung up the phone. After that, Victim’s phone rang again and again, and Victim lost track of how many times Defendant called. Finally, Victim was aggravated, so she picked up the phone and said, “What do you want? I told you [Daughter] is not here.” Defendant was very angry and said that he knew Daughter was with Victim and that he would “come in there and f*** everybody up because” he knew Daughter was there. Victim could hear a horn “blaring” through the phone, and Victim’s husband told her that Defendant was just outside the house calling from his car. Victim hung up the phone and told her husband “let’s go” and “to grab something,” meaning he should grab “a pipe or baseball bat,” because of previous threats Defendant had made toward Victim and her husband. Victim’s husband grabbed a three-foot long hollow metal pipe and followed Victim outside.

Defendant was sitting in his car in front of the house. Victim stood at the bottom of the steps leading to the yard in front of the house. Victim’s husband stood in the yard in front of the house. Defendant got out and talked to Victim and her husband over the roof of the car. Victim told Defendant that Daughter was not there but that Victim would tell Daughter to call Defendant when she arrived. Victim told Defendant that he needed to leave. Defendant told Victim that he did not believe her, and Victim replied that she would have Daughter call Defendant but that he needed to leave “now.” Victim walked into the street behind Defendant’s car and toward the driver’s side and asked what was going on between Defendant and Daughter. Defendant appeared to calm down and told Victim that Defendant and Daughter had been arguing and Daughter had left their home. Victim promised Defendant that she would have Daughter call Defendant. Defendant said, “Okay,” and got back into his car.

Defendant drove his car toward the intersection at the end of block as Victim began to walk toward her house. Victim was walking slower than usual because she was recovering from previous injuries to her leg, ankle, “sacral area,” and vertebrae. Suddenly, Victim heard a screeching noise, looked up, and saw Defendant’s car, in reverse, coming straight at her. Victim could not get out of the way. The car hit Victim, throwing Victim onto the car, into the rear windshield, and knocking off her glasses. Victim fell to the ground, face first, hitting her arm and the right side of her back. As Defendant’s car struck Victim, Victim’s husband struck the car with the pipe he had been holding. Defendant immediately “took off’ toward the intersection and drove away. Victim was taken to the hospital and treated for various injuries.

A short time later, police officers arrived at the scene of the incident and spoke with Victim and a witness. After investigating, the officers went to Defendant’s apartment to arrest him. When the officers knocked on the door, they saw Defendant in the window of the apartment. The officers repeatedly asked Defendant to come downstairs, but Defendant refused. While talking with Defendant, the officers received another call and left the apartment without arresting Defendant.

Later, one of the officers returned to Defendant’s neighborhood in an attempt to locate Defendant. While patrolling the area, the officer saw Daughter screaming and waiving her arms. The officer also saw Defendant standing near his residence, but Defendant ran inside and slammed the door as the officer approached in his patrol car. The officer followed Defendant and tried to open the door, but Defendant locked it. The officer then spoke with Daughter, who stated that [288]*288she wanted to move out of and wanted to retrieve her belongings from the apartment. The officer believed that Daughter was a resident of the apartment, so he asked if she would consent to a search of it for Defendant. Daughter provided both verbal and written consent to the search and provided the officer with a key for the locked door. Although the key unlocked the deadbolt lock on the door, it did not work on the doorknob lock.

The officer called for additional officers to respond to the scene. Daughter told the officer that the only other way out of the residence was through a second-story window, so the officer stationed a couple of the other officers on the roof of the building in case Defendant attempted to flee. One of the officers on the roof entered the apartment through the second-story window and found himself in a living room area with a short hallway leading to a bedroom. Although the bedroom was “pretty much empty,” a pile of clothes shaped like the “outline of a human being” lay in the middle of the room. The officer asked the person hiding there to come out from under the pile of clothes, but there was no response or movement. Officers began picking up the clothes and found Defendant lying on his back under the pile. As one of the officers tried to grab Defendant’s arms as a safety precaution, Defendant began flailing. The officer instructed Defendant to stop resisting and informed Defendant that he was under arrest. Defendant rolled onto his stomach and tucked his arms beneath his torso to stop the officer from handcuffing him. Eventually, two officers were able to force Defendant’s arms from underneath his body so that they could handcuff Defendant and take him into custody.

An officer read Defendant his Miranda2 rights, and Defendant indicated that he understood those rights. Later, however, Defendant made a statement to the officer while sitting in a police car. Defendant stated that he had to hit Victim with the car because she would not move from behind it.

After trial, the jury found Defendant guilty as charged. The trial court sentenced Defendant to a total of a total of 11 years’ imprisonment. This appeal followed.

Additional facts will be discussed as necessary to our analysis of the issues on appeal.

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Cite This Page — Counsel Stack

Bluebook (online)
411 S.W.3d 284, 2013 WL 4715659, 2013 Mo. App. LEXIS 1009, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-austin-moctapp-2013.