State v. Dulaney

989 S.W.2d 648, 1999 Mo. App. LEXIS 438, 1999 WL 173968
CourtMissouri Court of Appeals
DecidedMarch 31, 1999
DocketNo. WD 55625
StatusPublished
Cited by10 cases

This text of 989 S.W.2d 648 (State v. Dulaney) 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. Dulaney, 989 S.W.2d 648, 1999 Mo. App. LEXIS 438, 1999 WL 173968 (Mo. Ct. App. 1999).

Opinion

LAURA DENVIR STITH, Judge.

Defendant-Appellant, Walter Dulaney, was convicted by the court, sitting without a jury, of second-degree assault in violation of Section 565.060, unlawful use of a weapon in violation of Section 571.030.1(4), and armed criminal action in violation of Section 571.015.1, and sentenced to five, four, and three years imprisonment, respectively.1 Defendant asserts that the trial court erred in overruling his motion for judgment of acquittal on the charges of second-degree assault and armed criminal action, because the State failed to prove beyond a reasonable doubt that he did not act in lawful self-defense or defense of premises.

7. FACTUAL AND PROCEDURAL BACKGROUND

The facts presented at trial, and the trial court’s credibility determinations, were as follows:

Defendant and his wife, Jenny, lived on Whiteman Air Force Base. On the evening of April 25, 1997, Defendant was drinking and playing cards at the home of his next-door neighbor, David Hill. Mrs. Dulaney was at the home of another nearby neighbor, Diane Schmitt. A teenage girl was watching the Dulaneys’ young son at their home while both parents were away. Around 10:30 p.m., Mrs. Dulaney went to the Hill residence and asked Defendant to return home to put their child to bed because she wanted to leave to visit Bryant and Shannon Gresham, another couple living on the base. Defendant agreed to return home to take care of the child and stated he would be there in about 15 minutes. When he returned home, however, he found his wife had already left for the Greshams’ house, leaving their young son unattended.

Around 11:45 p.m., Defendant decided to go talk to his wife at the Greshams’ house. When Defendant arrived at the Greshams’ house he found his wife with Anthony Caldwell, a friend of Mr. Gresham. Mr. and Mrs. Gresham were also at the house, but were already in bed for the evening. Defendant confronted his wife and they argued on the Greshams’ front lawn. Awakened by the noise, Shannon Gresham came to the front door to see what was happening. After hearing Defendant telling someone to “Get back in the house b_!,” Bryant Gresham also came to the front door. According to Bryant, Defendant pointed a gun in his direction and told him to go back in the house, so Bryant went back inside his home. Defendant denied that he had a weapon, and said he just pointed his finger at Bryant and pretended it was a gun. The trial judge found that Defendat had indeed brandished a weapon at the Gresham’s home and convicted him of unlawful use of a weapon. Defendant does not appeal that ruling.

The charges of assault and armed criminal action grew out of what happened after Defendant left the Greshams’ house. Bryant and Shannon Gresham testified that, as soon as Defendant left their home, they began to look for their telephone so they could call the police and report the incident. They claimed that their only telephone was cordless and that they could not find it, so Bryant and his friend Anthony decided to drive to the home of their only friend in the area, Diane Schmitt. When they arrived, they parked in the driveway of the house across the street, and then went into Diane’s house and called the police.

Unfortunately, Diane lived across the street from Defendant, and Bryant and Anthony had parked their car in Defendant’s driveway. They claimed at trial that it was just chance that Diane happened to live across the street from the Defendant, and that they did not realize that they parked in Defendant’s driveway. The Court found this testimony not to be credible, and concluded that they purposely drove to Diane’s because it was across from Defendant’s house and that they did so because they intended to take revenge for Defendant’s misconduct at the Greshams’ earlier in the evening.

[650]*650Meanwhile, Defendant returned to visit his next-door neighbor, Mr. Hill. From Mr. Hill’s front porch, he saw Bryant and Anthony park in his driveway. Rather than go back to his home in a place of safety with his sleeping son, he moved to his front porch with his gun. He watched the two men emerge from Diane’s house, and the three exchanged words, including racial ephitets and physical threats of violence. Bryant and Anthony then began walking toward their car in Defendant’s driveway. Defendant took out his gun, pointed it towards the two approaching men, and fired. His shot did not hit anyone, and he claimed at trial that he had just aimed the gun in the air and fired in an unsuccessful attempt to scare off the men.

Defendant’s neighbor, Mr. Hill, was on his front porch when he heard the gunshot. Mr. Hill walked over to Defendant and took his gun away from him and told Bryant and Anthony to leave. As the men nonetheless continued to approach, Defendant grabbed the gun back from Mr. Hill. Defendant states he did so because he was fearful for his life because both Bryant and Anthony were larger than he. Mr. Hill went back to his home and called the police. Although Defendant admitted at trial that he could have gone into his house, he claimed that he did not do so because his son was inside and he was afraid his son’s safety would be jeopardized if the men followed him inside the home. In any event, as Bryant and Anthony got close to Defendant, he lowered the gun. A struggle ensued, and by the time the police arrived Defendant was unconscious with the gun lying on the ground next to him. Defendant was taken to the hospital by ambulance. After he was released from the hospital, he was charged with assault and armed criminal action based on his action in shooting his gun in the direction of Bryant Gresham when Bryant and Anthony first approached his house.

After hearing the above evidence, the court found Defendant guilty on all counts, stating:

Every time any initial aggression came about it was the result of Mr. Dulaney’s actions and not these two other men who ended up beating him up ... If Mr. Dula-ney were truly afraid for his welfare, or that of his son, he had plenty of time, once they were in Diane Schmitt’s house to walk to his telephone and call the police and tell them there was an emergency. Instead, he made the choice to stand out and protect his turf, as he would like to put it, and become the aggressor while firing the shot.
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Regardless of what happened to you [defendant] after you fired that shot, and regardless of what happened before you got your gun and fired that shot, as far as I’m concerned you’re not justified in having done that, and that’s why I found you guilty. There was no self-defense as far as I was concerned, and there was no justification as far as I was concerned.

Defendant now appeals his convictions for second-degree assault and armed criminal action.

II. STANDARD OF REVIEW

Our review of the sufficiency of evidence supporting a criminal conviction is limited to the determination whether there is sufficient evidence from which a reasonable trier of fact might have found the defendant guilty beyond a reasonable doubt. 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).

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Cite This Page — Counsel Stack

Bluebook (online)
989 S.W.2d 648, 1999 Mo. App. LEXIS 438, 1999 WL 173968, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dulaney-moctapp-1999.