State v. Crumley

971 S.W.2d 368, 1998 Mo. App. LEXIS 1419, 1998 WL 409006
CourtMissouri Court of Appeals
DecidedJuly 22, 1998
DocketNo. 21989
StatusPublished

This text of 971 S.W.2d 368 (State v. Crumley) 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. Crumley, 971 S.W.2d 368, 1998 Mo. App. LEXIS 1419, 1998 WL 409006 (Mo. Ct. App. 1998).

Opinion

CROW, Judge.

Appellant was charged with the class A misdemeanor of assault in the third degree, § 565.070, RSMO 1994, in that he “attempted to cause physical injury to Bonita Umfress by striking her in the face with his fist.”

The trial court heard evidence without a jury and found Appellant guilty. This appeal followed.

Appellant’s sole point relied on avers the trial court erred in denying his motion for judgment of acquittal at the close of the evidence. According to Appellant:

“[T]he State did not establish that Appellant attempted to cause physical injury to Bonita Umfress by striking her in the face with his fist. Ms. Umfress’ prior inconsistent statement was the only evidence of that allegation and was unsupported by corroborating evidence.”

Resolving the claim of error requires an account of the evidence. In narrating it, we are mindful that in reviewing the sufficiency of the evidence to support a criminal conviction, an appellate court accepts as true all of the evidence favorable to the State, including all favorable inferences drawn therefrom, and disregards all evidence and inferences to the contrary. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993), cert. denied, 510 U.S. 997, 114 S.Ct. 562, 126 L.Ed.2d 462 (1993).

So viewed, the evidence reveals Ms. Um-fress (“Victim”) had lived with Appellant in his “trailer” almost a year when the incident occurred. Victim testified she and Appellant “got into a [sic] argument” and she “hit him first” (with her fist) because he “called [her] a name.” After that, avowed Victim, Appellant hit her on the face with his hand. According to Victim, the blow “hurt.”

Asked whether she told a law enforcement officer about the incident, Victim replied: “I ended up in the hospital, and that’s when I seen the law enforcement^]” Victim recounted she told the officer the truth “[a]s far as I know.”

The prosecutor showed State’s Exhibit 1 to Victim and asked whether she could identify it. Victim answered: “It looks like my handwriting [but] I don’t remember giving that statement.” Victim denied knowing where Exhibit 1 was written.

The only other witness was Deputy Sheriff James Akers. He saw Victim at the hospital after the altercation. He talked with her [370]*370briefly in the emergency room and again after “they were done suturing her.” Akers recalled Victim was excited but not crying.

The prosecutor asked Akers what Victim told him. After looking at Exhibit 1, Akers responded: “She stated to me that he struck her twice in the face, with his fist, and then once in the back shoulder portion.”

Appellant’s lawyer objected “to the hearsay.”

The trial court sustained the objection, adding, “I’ll hear no hearsay here.”

The prosecutor thereupon offered Exhibit 1 in evidence. The trial court received it over objection.1 Exhibit 1, as we decipher it, reads:

“James comes home and Started argument. He called me a Bitch I called him a Bastard. And he hit me twice with his fist on face. Then we still argued, next door at the other trayler [sic] he thetend [sic] again. So I tried to get out of the window to keep him from hurting me. And the Window Broke and cut my leg Bad. My mother Brought me to the hospitalf.]”
The prosecutor presented nothing else.

Appellant’s lawyer announced Appellant had no evidence, then moved for a judgment of acquittal.

The prosecutor argued:

“[Victim] got up on the stand and she did change her testimony. Pursuant to [§ 491.074, RSMo 19942], State’s Exhibit 1 was admitted, which can be used as substantive evidence.... Then the Court can decide which to believe, her testimony this morning or the statement that she made in her own handwriting.”

Appellant’s lawyer responded by telling the trial court: “[TJhere’s more than enough evidence to believe the defense of self-defense in this case.”

We infer from the trial court’s findings that the court was unpersuaded by the self-defense argument.

Before addressing Appellant’s claim of error, we note that despite § 56.060.1, RSMo 1994,3 the prosecutor has filed no brief. As this court observed in State v. Musil, 935 S.W.2d 379, 380-81 (Mo.App. S.D.1996), although no penalty is prescribed for such indifference, it is astonishing that the prosecutor would pursue the case to a conviction in the trial court, then ignore it on appeal. Cf. State v. Harrington, 679 S.W.2d 906, 907[1] (Mo.App. S.D.1984). Nonetheless, as in Mu-sil, this court shall endeavor to correctly decide this appeal without the benefit of a State’s brief.

In the argument portion of Appellant’s brief, we find this:

“In the case at bar, [Victim’s] prior inconsistent statement is the only evidence which would support a conviction of assault in the third degree.”

We construe that declaration as an admission that had Victim’s testimony mirrored Exhibit 1, her testimony would have been sufficient to support the conviction. However, as we have seen, Victim’s testimony differed from Exhibit 1 in two respects. First, Victim testified she struck the first blow, a detail unmentioned in Exhibit 1. Second, Victim’s testimony described only one blow delivered by Appellant, whereas Exhibit 1 described two blows by Appellant to Victim’s face and a leg injury sustained by Victim in attempting to escape through a window.

Appellant’s hypothesis of error, as we divine it, is that the trial court based its finding [371]*371of guilty solely on Exhibit 1. According to Appellant, that constituted reversible error inasmuch as “a conviction based solely on a prior inconsistent statement falls short of due process protection.” In support of that premise, Appellant relies on State v. Pierce, 906 S.W.2d 729 (Mo.App. W.D.1995). There, the Western District of this court, after a comprehensive review of the law preceding and following the enactment of § 491.0744 held: “[B]ecause there is an absence of adequate safeguards to assure reliability, a conviction based solely on a prior statement, though admissible via [§ 491.074], falls short of due process protection.” Id. at 735[5].

For the reasons that follow, we hold Victim’s testimony sufficient, independent of Exhibit 1, to support the trial court’s finding of guilty. Consequently, Pierce does not apply to the instant case; a fortiori, Pierce does not compel reversal.

Although Victim testified she struck the first blow (the only one she threw), she explained she did so because Appellant called her a “name.” Victim’s testimony did not reveal how much time elapsed thereafter before Appellant hit Victim on the face; however, we infer the interval was relatively brief.

One might hastily assume that because Victim struck the first blow, the trial court was compelled to accept Appellant’s self-defense argument and acquit him. However, as we shall see, that notion is incorrect.

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Related

State v. Grim
854 S.W.2d 403 (Supreme Court of Missouri, 1993)
State v. Pierce
906 S.W.2d 729 (Missouri Court of Appeals, 1995)
State v. Musil
935 S.W.2d 379 (Missouri Court of Appeals, 1996)
State v. Giffin
640 S.W.2d 128 (Supreme Court of Missouri, 1982)
State v. Harrington
679 S.W.2d 906 (Missouri Court of Appeals, 1984)
State v. Spencer
725 S.W.2d 54 (Missouri Court of Appeals, 1987)
State v. Evans
755 S.W.2d 673 (Missouri Court of Appeals, 1988)

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Bluebook (online)
971 S.W.2d 368, 1998 Mo. App. LEXIS 1419, 1998 WL 409006, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-crumley-moctapp-1998.