State v. Bledsoe

920 S.W.2d 538, 1996 Mo. App. LEXIS 285, 1996 WL 71089

• Court: Missouri Court of Appeals
• Decided: February 20, 1996
• Docket: 66898
• Status: Published

Opinions

CRANDALL, Judge.

Defendant, Michael Bledsoe, appeals from his judgments of conviction, in a court-tried case, of two counts of assault in the second degree and two counts of armed criminal action. He was sentenced, as a persistent offender, to two concurrent terms of six years’ imprisonment on each of the assault counts to be served consecutively with two concurrent terms of three years’ imprisonment on each of the armed criminal action counts.¹ We affirm.

In the early morning hours of March 28, 1993, Billy Hickman and Susan Young were sitting at a table in a bar located in St. Louis County. Hickman was on a “first date” with a woman who had been dating defendant. Young was there with her husband and others. While Hickman and Young were seated next to each other, defendant came up to their table. With a “backhand” swing of a beer bottle, defendant struck Hickman and then Young across their chins. Hickman and Young were both taken to a hospital, where the police took photographs of them. Hickman and Young were treated and released from the hospital.

Defendant first argues the evidence was insufficient to support the second degree assault convictions. He contends the evidence, taken in the light most favorable to the state, is not sufficient to support a finding of “serious physical injury” as required for assault in the second degree. In his first point, defendant addresses the injuries to Hickman; and in point three, the injuries to Young.

This court’s review of a court-tried case is the same as for a case tried by a jury. Rule 27.01; State v. Shaw, 847 S.W.2d 768, 779 (Mo. banc 1993). We view all evidence in the light most favorable to the state and affirm the trial court’s judgment if there is substantial evidence to support its findings. Shaw, 847 S.W.2d at 779. We also recognize the trial court’s ability to see, hear and judge the witnesses in person, rather than from a cold record on appeal. Id.

Defendant committed the crime of assault in the second degree, a class C felony, if he recklessly caused serious physical injury to Hickman or’ Young. See § 565.060.1(3). Physical injury is defined as “physical pain, illness, or any impairment of physical condition.” § 556.061(20). Serious physical injury is defined as “physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body.” § 565.002(6). Here, we focus on the “serious disfigurement” element of the statute.

Disfigurement means to deface or mar the appearance or beauty of someone. State v. Williams, 740 S.W.2d 244, 246 (Mo.App.1987). Clearly, both of the victims in this case were disfigured. The issue then is whether the trial judge, as the fact finder, could reasonably conclude that there was serious disfigurement.

Hickman was struck across the chin with the beer bottle. He suffered several lacerations to his lip, chin, neck and ear. When asked whether he had any scars, Hickman testified he had a scar underneath his chin and the trial court noted it could see the scar. Hickman’s hospital records indicated a cut on his chin of four centimeters, which is approximately one and one half inches, was sutured. Defendant’s blow also broke off a pea-sized piece of one of Hickman’s front molars.

Young also was struck across her chin with the broken beer bottle. She sustained multiple facial lacerations and puncture wounds, which were embedded with glass. She received stitches for a laceration on her chin. Her hospital records indicated this cut was one to one and one half inches in length. Young also suffered a one half inch laceration to her lower lip. Young testified that the scarring from the chin laceration left a ledge on her chin, giving her the appearance of having a double chin; and stated, “[Ejvery morning I have to look at myself in the mirror, see this thing covered-” She also stated that scars remained between her eyes and on her lower lip: “I see all those marks until this day.”

Although no longer statutorily required, § 556.061(28), RSMo 1994; Williams, 740 S.W.2d at 246 n. 1, permanency of disfigurement is relevant, as a matter of evidence, on the element of seriousness. We have reviewed the testimony, photographs, and hospital records in this ease. There was substantial evidence adduced that both victims suffered permanent disfigurement. The cases cited by the state involved injuries somewhat comparable to those present in this case. See e.g., State v. Williams, 784 S.W.2d 309, 311 (Mo.App.1990) (three inch laceration to the victim’s neck described in hospital record as superficial held to constitute serious disfigurement due to keloid formation of the scar tissue); State v. Pettis, 748 S.W.2d 793, 794 (Mo.App.1988) (permanent scar four inches by one sixteenth of an inch on arm); State v. Williams, 740 S.W.2d 244, 246 (Mo.App.1987) (five inch wound on neck with resulting hypertrophic, or elevated, scar); State v. Teal, 624 S.W.2d 122, 124 (Mo.App.1981) (holding testimony and photographs established nineteen month old victim sustained facial injury resulting in substantial loss of blood and stitches sufficient to present jury issue regarding whether victim suffered serious physical injury). With the exception of Teal, these cases held that scarring constituted serious disfigurement.

The visibility of the scarring in this case, primarily that of facial scars, is relevant as a matter of evidence in determining whether there was serious disfigurement. Length of the scars is also relevant. The presence of additional injuries, such as Hickman’s loss of a substantial portion of a front molar, is another factor to be considered.

Injuries suffered by assault victims will differ and therefore whether a victim suffers serious disfigurement is dependent upon the evidence of a particular case. We have enumerated several non-exclusive factors that may be probative on the issue. We appreciate that there may be cases in which an appellate court can hold, based upon a cold record, that as a matter of law, the disfigurement is not serious. That is not the situation in this case. Here, substantial evidence was adduced from which the experienced trial judge could reasonably conclude that Hickman and Young suffered serious disfigurement. Defendant’s points one and three are denied.

In points two and four, defendant argues that reversal of the underlying felony convictions requires the reversal of his armed criminal action convictions. Defendant’s second and fourth points are premised on a reversal of the underlying felonies. A conviction of armed criminal action requires commission of an underlying felony. State v. Weems, 840 S.W.2d 222, 228 (Mo. banc 1992). In view of our holding on points one and three, defendant’s second and fourth points are denied.

The judgments of conviction are affirmed.

CRANE, C.J., and REINHARD, PUDLOWSKI, SIMON, AHRENS, CRAHAN, DOWD, RHODES RUSSELL and HOFF, JJ., concur. SMITH, J., dissents in separate opinion filed. KAROHL, GARY M. GAERTNER, and GRIMM, JJ., dissent and concur in opinion of SMITH, J.

1 . A divisional opinion was handed down in this appeal reversing defendant’s judgments of conviction for assault in the second degree and remanding the cause to the trial court to enter judgments of conviction on two counts of assault in the third degree, both misdemeanors, and for sentencing thereon. The judgments of conviction for two counts of armed criminal action were reversed outright. A motion for rehearing, filed by the state, was granted and the appeal was reargued before the court en banc.