State v. Cole

887 S.W.2d 712, 1994 Mo. App. LEXIS 1624, 1994 WL 565226
Missouri Court of Appeals·Decided October 18, 1994·No. No. 64508·Published·Cited by 4 cases

Opinion

WHITE, Judge.

A jury convicted defendant of assault in the third degree, a class C misdemeanor. Defendant appeals the judgment entered on this conviction. We reverse and remand.

Defendant was employed as a music teacher at High Ridge Elementary School. At the end of the school day, students line up in the hallways to wait for their buses. Teachers supervise the students during this period. E.D. was a student at High Ridge Elementary School when the incident at issue occurred.

On February 1,1993, E.D. was standing in the hallway waiting for his bus. Defendant was supervising the bus lines outside of his classroom when he noticed E.D. was not wearing a coat. Defendant asked E.D, apparently two times, “where is your coat?” E.D. responded verbally1 and continued looking down at a spelling paper. Defendant took the paper out of E.D.’s hand and put it in his shirt. Defendant would later testify he pointed his finger at E.D., someone brushed his elbow and he “accidentally” touched E.D.’s face. Defendant then told E.D. to look at him. When E.D. did not respond, defendant took E.D.’s chin and moved it toward him. Defendant claims he did not see any marks on E.D.’s face immediately after the incident. Defendant then walked back to his “bus line.”

Another teacher observed part of the incident. After the incident, this teacher took E.D. to see the principal. E.D. told the principal defendant slapped him. After speaking with the principal, E.D. rode his bus home. E.D. told his mother about the incident and she called the police. The day after the incident E.D. had a bruise on the side of his face. Defendant was subsequently charged, by amended information, with assault in the third degree, a class A misdemeanor. The amended information asserted defendant attempted to cause physical injury to E.D. by grabbing his face or slapping him.

During trial, E.D., defendant and other students who were present in the hallway gave differing testimony regarding the incident. The teacher who observed part of the incident testified she saw defendant push the right side of E.D.’s face but did not see defendant slap E.D. Defendant testified he accidentally touched E.D. but did not slap him. During cross-examination, the prosecutor asked defendant whether he had been involved in any other incidents which would be referred to as an accident and if he had ever been told not to touch or yell at students. The jury was instructed on the offense of assault in the third degree, a class A misdemeanor, and the lesser included offense of assault in the third degree, a class C misdemeanor. The jury found defendant guilty of the class C misdemeanor. The trial court sentenced defendant to three days in the county jail and fined him $200.

In his sole point on appeal, defendant argues the trial court erred by permitting the State to introduce evidence of defendant’s prior bad conduct. Defendant contends the State improperly questioned him during cross-examination, a portion of which follows:

MR. APPLEBAUM (for the State): Your testimony is that you accidentally touched him with your finger; is that right?
DEFENDANT: It was not my intention to touch him with my finger.
MR. APPLEBAUM: Your words were that you accidentally touched him with your finger; is that correct?
DEFENDANT: I don’t recall saying that.
[714] MR. APPLEBAUM: All right. Have you ever accidentally had any other incidents with children in that school?
MR. CAVANAGH (for defendant): Your Honor, I’m going to object. That calls for something beyond the scope of the direct examination, and it’s irrelevant and immaterial. It has no opportunity for the jury to hear that kind of information one way or the other.
MR. APPLEBAUM: Judge, he’s opened the door by saying that this was an accidental situation, and I—
THE COURT: Wait for my ruling. Overruled. You may inquire.
MR. APPLEBAUM: Have you ever had any other accidents with children since you’ve been at High Ridge Elementary? MR. CAVANAGH: [objecting].
THE COURT: I think the question may be a little broad, John [Mr. Applebaum]. You want to tighten it up a little bit, please.
MR. APPLEBAUM: Has there been any incidents at High Ridge Elementary since you’ve been there where you were involved where you would refer to something as an accident,—
[[Image here]]
MR. CAVANAGH: [objecting],
THE COURT: I’ll let him answer that.
DEFENDANT: Yes.
MR. APPLEBAUM: Was that about three years ago?
DEFENDANT: I don’t recall.
MR. APPLEBAUM: Well, what do you recall?
[[Image here]]
THE COURT: I’m going to allow that question.
MR. APPLEBAUM: Do you recall an incident three years ago that happened with you and a student?
DEFENDANT: I don’t remember how long ago it was. There was an incident with a student.

The prosecutor subsequently asked defendant, over objection, whether the school principal told him, in January, 1993, not to yell at students. Defendant testified the principal spoke to him about speaking too loudly to the children. The prosecutor also asked defendant whether the principal, in August, 1991 and September, 1986, told him to avoid touching students. Defendant testified he did remember being directed, on those dates, not to touch students. Defendant did not testify regarding any specific details of the prior incidents.

As a general rule, evidence of uncharged crimes, wrongs or acts is inadmissible for the purpose of showing the defendant’s propensity to commit crimes such as the crime charged.2 State v. Bernard, 849 S.W.2d 10,13 (Mo. banc 1993) (citation omitted). Although not admissible to show propensity, evidence of defendant’s prior misconduct is admissible if the evidence is both logically and legally relevant. Id. Evidence is logically relevant if it has some legitimate tendency to directly establish the defendant’s guilt for the charged crimes. Id. Evidence is legally relevant if its probative value outweighs its prejudicial effect. Id.

Free access — add to your briefcase to read the full text and ask questions with AI

State v. Cole, 887 S.W.2d 712, 1994 Mo. App. LEXIS 1624, 1994 WL 565226 (Mo. Ct. App. 1994).

887 S.W.2d 712 (State v. Cole) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

State v. Lawson
50 S.W.3d 363 (Missouri Court of Appeals, 2001)
State v. Sloan
998 S.W.2d 142 (Missouri Court of Appeals, 1999)
State v. Wallace
943 S.W.2d 721 (Missouri Court of Appeals, 1997)
Currey v. Kimple
577 S.W.2d 508 (Court of Appeals of Texas, 1978)