State v. Trimmer

849 S.W.2d 725, 1993 Mo. App. LEXIS 401, 1993 WL 79310
CourtMissouri Court of Appeals
DecidedMarch 23, 1993
Docket61202
StatusPublished
Cited by11 cases

This text of 849 S.W.2d 725 (State v. Trimmer) 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. Trimmer, 849 S.W.2d 725, 1993 Mo. App. LEXIS 401, 1993 WL 79310 (Mo. Ct. App. 1993).

Opinion

AHRENS, Presiding Judge.

In this jury-tried case, defendant, Burl Trimmer, appeals from his conviction of second-degree assault in violation of § 565.-060.1(3) RSMo 1986. Defendant was sentenced as a prior and persistent offender to seven years’ imprisonment, to run consecutively to a sentence previously imposed in the state of Kansas. We affirm.

The evidence adduced at trial established the following facts. At approximately 10:30 p.m. on July 20, 1991, Darrell Talle-vast, Jason Shaffer, and Tim Jordan met defendant at a pool hall in Perryville, Missouri. The group purchased a case of beer, stopped to drink, and returned to defendant’s apartment at approximately 12:30 a.m. Defendant’s girlfriend joined the group at the apartment. Bobby Cooper arrived at approximately 1:00 a.m.

The group continued to drink beer and began drinking Schnapps. At approximately 2:30 a.m., Tallevast removed his shirt and shoes and lay down on a bed to sleep. Cooper suggested the group play a “prank” on Tallevast by pouring rubbing alcohol onto his “crotch” so Tallevast would experience a burning sensation when he awoke. Cooper and defendant approached Tallevast’s bed, and Cooper splashed alcohol onto the groin area of Tallevast's jeans. Defendant took the bottle from Cooper and poured the remaining alcohol down Tallevast’s waist. Defendant said, “Watch this,” and set Tallevast on fire.

Tallevast jumped from the bed with his midsection and legs in flames. He ran around the room screaming and continued outside, where he “patted out” the flames with his hands. Tallevast was on fire for thirty to forty-five seconds.

Jordan and Shaffer helped Tallevast across the street to a friend’s house; he was in pain and could barely walk. Talle-vast rested at the house for approximately forty-five minutes before his friend took him to the hospital. The burns were treated with cold wraps, and Tallevast was giv *727 en salve and medication for pain. After his release from the hospital, Tallevast returned to defendant’s apartment to retrieve his shoes. Defendant’s girlfriend asked Tallevast about the condition of his legs, and he stated the burns there were not “too bad”; he did not mention the burns on his waist. Tallevast returned home and reported the incident to police shortly after midnight the next day.

At trial, defendant’s girlfriend testified defendant was outside at the time Tallevast jumped from the bed in flames. Further, two of Tallevast’s schoolmates testified they saw Tallevast walking normally at a picnic approximately two weeks after the incident. One of the schoolmates further testified Tallevast told her his injuries were “no big deal.”

In his sole point on appeal, defendant contends the evidence was insufficient to support his conviction of second-degree assault. In reviewing this argument, we view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. State v. Williams, 784 S.W.2d 309, 311 (Mo.App.1990) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979)). Further, we accept the state’s evidence as true, resolving reasonable inferences in its favor and disregarding contrary evidence and inferences. Id.

Defendant was convicted of assault in the second degree for recklessly causing serious physical injury to Tallevast by dousing him with rubbing alcohol and lighting him on fire. § 565.060.1(3) RSMo 1986. 1 “Serious physical injury” is “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.” § 556.-061(28) RSMo (Supp.1990). “Physical injury” means “physical pain, illness, or any impairment of physical condition.” § 556.-061(20) RSMo (Supp.1990). 2

Defendant argues the state failed to present sufficient evidence that Tallevast suffered a “serious physical injury” as that term is defined in § 556.061(28) RSMo (Supp.1990). The state contends there was sufficient evidence that Tallevast suffered “serious disfigurement” and a “protracted impairment of the function” of the area affected by the burns. We agree.

The evidence reveals Tallevast sustained burns from his waist to his upper thighs. He was “laid up” for at least a month and “homebound” for approximately two weeks. Tallevast testified the burns were “very painful” and he was unable to sleep for a month after the incident. He took cold showers several times a day for at least a month in order to alleviate the burning in the affected areas. At the time of trial approximately four months after the incident, the burned areas still itched. There was visible scarring on Tallevast’s waist area and some discoloration on his legs; neither condition had improved in the thirty days before trial, although Tallevast expected the leg discoloration to fade completely.

Defendant reminds us the state presented no expert medical testimony and cites Tallevast’s testimony that at the time of trial, he was not disabled and had suffered no permanent loss of the use of any part or function of his body. However, “[t]he mere fact that a victim of an assault recovers without residual damage does not render proof of serious physical injury insufficient.” State v. Johnson, 770 S.W.2d 263, 266 (Mo.App.1989). Further, a victim can testify with respect to the extent of his or her injuries to prove the elements of the *728 state’s case. State v. Carlson, 792 S.W.2d 434, 436 (Mo.App.1990). We find sufficient evidence that Tallevast suffered a “serious physical injury” as defined in § 556.061(28) RSMo (Supp.1990).

First, the evidence supported a finding that Tallevast suffered a “protracted” impairment of the function of the area affected by the burns. “Protracted” means something short of permanent but more than of short duration, and what is considered protracted depends upon the circumstances of the case. State v. Briggs, 740 S.W.2d 399, 401 (Mo.App.1987). Here, Tal-levast suffered pain and loss of sleep for at least one month and continued to suffer itching at the time of trial nearly four months after the assault. We find sufficient evidence the impairment was of more than short duration. See id. (suffering from cracked rib for twenty working days sufficient to constitute aj protracted impairment); State v. Mentola, 691 S.W.2d 420, 422 (Mo.App.1985) (six weeks’ impairment of the jaw sufficient for the jury to find serious physical injury).

Further, we find sufficient evidence that Tallevast suffered a “serious disfigurement” from the burns inflicted by defendant.

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

Related

State v. Oliver
291 S.W.3d 324 (Missouri Court of Appeals, 2009)
State v. Barraza
238 S.W.3d 187 (Missouri Court of Appeals, 2007)
State v. Dowdy
60 S.W.3d 639 (Missouri Court of Appeals, 2001)
State v. Westerman
971 S.W.2d 932 (Missouri Court of Appeals, 1998)
State v. Bowens
964 S.W.2d 232 (Missouri Court of Appeals, 1998)
State v. Cammon
959 S.W.2d 469 (Missouri Court of Appeals, 1997)
State v. Goodson
943 S.W.2d 239 (Missouri Court of Appeals, 1997)
State v. Ross
939 S.W.2d 15 (Missouri Court of Appeals, 1997)
Kierst v. N.A.G.
903 S.W.2d 664 (Missouri Court of Appeals, 1995)
In Interest of NAG
903 S.W.2d 664 (Missouri Court of Appeals, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
849 S.W.2d 725, 1993 Mo. App. LEXIS 401, 1993 WL 79310, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-trimmer-moctapp-1993.