State v. Nevels

804 S.W.2d 380, 1991 Mo. App. LEXIS 109, 1991 WL 1970
CourtMissouri Court of Appeals
DecidedJanuary 15, 1991
DocketNo. WD 43088
StatusPublished
Cited by1 cases

This text of 804 S.W.2d 380 (State v. Nevels) 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. Nevels, 804 S.W.2d 380, 1991 Mo. App. LEXIS 109, 1991 WL 1970 (Mo. Ct. App. 1991).

Opinion

BERREY, Presiding Judge.

The above cause was consolidated for jury trial before Judge Donald Barnes. The defendants below, appellants herein, were charged by second amended information with committing the class B felony of assault in the first degree, in that, “they attempted to kill or cause serious physical injury to Kurtis Cox1 by striking Kurtis Cox with a beer bottle and by repeatedly striking Kurtis Cox with defendant Robert Nevels’ and defendant Charles Graves’ fists and feet.”

The jury deliberated about an hour before returning a guilty verdict against each defendant. The jury “assess[ed] and declare[d] punishment for assault in the first degree at 6 (six) years” for each defendant and the court ordered the defendants confined in the custody of MDC.

In State v. Wiley, 522 S.W.2d 281, 292 (Mo.1975), the court held, “In reviewing the evidence we must view the evidence in the light most favorable to the state and give the state the benefit of all reasonable inferences.”

[381]*381The facts are as simple as they are brutal and are set forth herein in some detail. In January, 1989, Caroline Riske was in her senior year at Missouri University, Columbia. When not in school she resided in Carrollton, Missouri. On January 20, 1989, she was enroute to her home in Carrollton. Traveling with her was her fiance, Keith Flick, from Stet, Missouri.2 Her route of travel was from Columbia to Marshall Junction on 1-70. She exited 1-70 onto north bound U.S. Highway 65, which would take her to Carrollton. She continued on this route through Marshall toward Malta Bend, Waverly and Carrollton.

Caroline Riske stated that between Marshall and Malta Bend she came up behind a grey Ranchero traveling at about 45 miles per hour. She attempted to pass the Ranchero and it pulled into her passing lane and sped up. Riske then dropped back and slowed, staying behind the Ranchero for a few minutes.

She then stated:

Pretty soon out the passenger window came a series of beer cans out the passenger windows. I swerved to miss the first one, one proceeded to hit my hood and one proceeded to hit my windshield. At that point I decided to get around this car was trying real hard to drive swerving beer cans.
I started around the car. Again as I started around them they speeded up again. Just as I started to get around them. In the meantime there’s an oncoming car. I was doing my best to get around them. I was getting real scared so I went around them, tried the best I could. Just as I almost hit the oncoming car they slowed down just enough to let me in. At that point I was—
[[Image here]]
Q. (By Mr. Stouffer Continuing:) Miss Riske, after you got in front of the gray Ranchero, and the car went by, that is the oncoming vehicle, what happened then?
A. As I got in front of the car they pulled out from behind me and proceeded to drive right next to me, you know, exactly even with my car. They threw— somebody in the passenger side leaned out, threw a beer can slammed it against my door.

At Malta Bend, Caroline stopped near the city limits and the Ranchero was “up the road” a short distance. A vehicle driven by Kurtis Cox pulled up beside her. He said, “I saw what happened [sic] you, you guys all right. Can I ... help you?” He then parked his car, exited it and walked toward the Ranchero. Caroline observed “that defendants both started shoving him and pushing him hard enough he was almost knocked off his feet ...” Appellants had him down and were hitting and kicking him. Keith tried to intercede but was restrained by Caroline. Caroline then drove to a nearby house to get help.

Caroline next saw Kurtis in Waverly. She described his condition: “[H]is face was bloody, and he was beat up and one eye was swollen shut. His shirt was tom to shreds. He was just in pretty bad shape.”

The victim made a statement to deputy sheriff Jim Brown while being prepped for the doctor. He told Brown that he’d been hit over the head with a beer bottle. Kurtis Cox also testified that he’d been hit on the “top of the head” with a beer bottle.

The defendants that night were apprehended and given their Miranda Rights by Jim Brown, a Saline County deputy sheriff, who read them from a booklet Brown carried in his pocket. The defendants were both identified in court as being the perpetrators of this heinous crime.

Defendant Nevels first told Brown that the blood on his person was hog blood, from his job at Wilson food. He recanted this story and stated he’d had “a fight with a man at Malta Bend and that was the victim’s blood.”

Both defendants testified in their own behalf. Defendant Graves claimed Cox started the fight and that he and Nevels hit and kicked him while he was down. Graves testified that he weighed 235 [382]*382pounds on the night in question and that Nevels threw the beer cans.3 The victim got up and was knocked down a second time by the defendants and again he was brutalized by being kicked and beaten. Nevels testified he kicked and struck the defendant. Nevels stated that he weighed 250 or 235 pounds.4

The defendants were characterized as “naughty boys” by their learned counsel, a characterization obviously not shared by the jury.

Appellant raises two points of error: (1) that the trial court erred in denying post trial motions because the information did not contain sufficient facts to constitute a lawful charge and that the amended information does not specifiy any serious physical injury that the victim sustained, if any; and (2) the trial court erred in instructing the jury because Instructions No. 7 and No. 9, the verdict directors, were incorrect in that MAI-CR3rd for instruction 304.04 notes that the instruction should be modified and these were not.

In Point I appellants claim that the trial court erred in its denial of their post trial motion for a new trial based on the claim that the information charging them did not set out sufficient facts to constitute a lawful charge. Rule 23.01(b)(2) mandates that the information must “state plainly, concisely, and definitively the essential facts constituting the offense charged.”

The information reads as follows:

The Prosecuting Attorney of the County of Saline, State of Missouri, charges that the defendants Robert Nevels and Charles Graves, acting in concert, in violation of Section 565.050, RSMo, committed the class B felony of assault in the first degree, punishable upon conviction under Section 558.011(2), RSMo, in that on or about January 20, 1989, in the County of Saline, State of Missouri, the defendants Robert Nevels and Charles Graves, acting in concert, attempted to kill or cause serious physical injury to Kurtis Cox by striking Kurtis Cox with a beer bottle and by repeatedly striking Kurtis Cox with defendant Robert Nev-els’ and defendant Charles Graves’ fists and feet.

Section 565.050, RSMo 1986, states that, “A person commits the crime of assault in the first degree if he attempts to kill or knowingly causes physical injury to another person.” (Emphasis added). A comparison of this information to § 565.050 shows that the language of the information tracks that of what is required by the statute.

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

Related

State v. Sanders
871 S.W.2d 454 (Missouri Court of Appeals, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
804 S.W.2d 380, 1991 Mo. App. LEXIS 109, 1991 WL 1970, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-nevels-moctapp-1991.