State v. Williams

728 S.W.2d 690, 1987 Mo. App. LEXIS 4017
CourtMissouri Court of Appeals
DecidedApril 28, 1987
DocketNo. WD 38677
StatusPublished
Cited by10 cases

This text of 728 S.W.2d 690 (State v. Williams) 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. Williams, 728 S.W.2d 690, 1987 Mo. App. LEXIS 4017 (Mo. Ct. App. 1987).

Opinion

CLARK, Chief Judge.

Randall Williams was convicted by a jury of the offenses of first degree assault and possession of a weapon about the premises of a correctional institution. He was found by the court to be a prior and persistent offender and was sentenced to concurrent terms of ten years and five years.

The evidence presented at trial, recounted and recast by accepting as true that which was favorable to the verdict and rejecting evidence and inferences to the contrary, State v. Fletcher, 709 S.W.2d 924, 925 (Mo.App.1986), disclosed the following facts. On the afternoon of August 5, 1985, appellant and one Bolden became involved in an argument with the victim, Torrance, about an item of clothing. All were then inmates at the Missouri State Penitentiary. Bolden drew a knife and Torrance ran, with appellant and Bolden in pursuit. According to guards who witnessed the attack when appellant and Bol-den caught Torrance, appellant inflicted a superficial laceration on Torrance’s right [692]*692leg using an ice pick like object. Bolden cut Torrance with the knife on Torrance’s left leg and left chest. The guards took the ice pick from appellant’s hand and found a bloody substance on the tip.

In his first point of error, Williams contends the court erred in giving the jury the verdict directing instruction for assault in the first degree and in failing to order acquittal on that charge because the unchallenged evidence showed Torrance did not sustain serious physical injury. The thesis adopted rests on the assumption that the offense of first degree assault and the instruction both postulate a crime in which the victim is caused to sustain serious physical injury. Under this reasoning, appellant argues that superficial and non-life threatening knife wounds do not cause serious physical injury and therefore made no case of first degree assault.

The applicable statute, § 565.050, RSMo. 1986 provides:

“1. A person commits the crime of assault in the first degree if he attempts to kill or knowingly causes or attempts to cause serious physical injury to another person.
2. Assault in the first degree is a class B felony unless in the course thereof the actor inflicts serious physical injury on the victim in which case it is a class A felony.”-

It is apparent from the above that the proven occurrence of actual serious physical injury sustained by the victim is only material in the determination of whether the offense is a class A or class B felony. A conviction for first degree assault may be had on proof of the attempt to cause serious physical injury or on proof that serious physical injury was inflicted. If the former, then the offense is a class B felony. If the latter, the crime is a class A felony. The only difference in practical consequence is the range of punishment.

In this case, the verdict directing instruction for assault used the language, “attempted to kill or cause serious physical injury,” thereby allowing a guilty verdict to be returned based on proof of an attempted assault with purpose to kill or cause serious bodily injury. The jury was also instructed that if serious physical injury was in fact inflicted, then it should return its verdict so stating. The verdict as returned did not include the last mentioned finding with the consequence that the conviction was for assault in the first degree, a class B felony. This was consistent with appellant’s claim that serious physical injury to Torrance was not proved.

Appellant appears to rely on the information which charged the class A felony and on the caption of the judgment entry for his claim that he was convicted and sentenced for the class A felony, despite absence of proof of any serious injury inflicted. Notwithstanding any error in the judgment caption, which is at best unclear, the body of the judgment refers only to assault in the first degree and the punishment imposed was within the range of that provided for a class B felony. Williams was convicted and sentenced for the lower grade felony and therefore cannot base a claim for reversal on the lack of proof that the victim sustained serious physical injury. To the extent the caption on the judgment, which is not a part of the judgment, may indicate otherwise, it may and should be corrected by the trial court by entry nunc pro tunc. Jolly v. State, 616 S.W.2d 569, 571 (Mo.App.1981).

In a second point, Williams contends the court erred when it denied his motion for mistrial following the comment by the prosecutor in closing argument, referring to defendant, “ * * * he is the one that has done exactly the same thing before.” Williams argues that the statement was improper because it suggested to the jury that Williams was more likely to be guilty because he had previously committed another assault.

The record indicates the trial court sustained defense counsel’s objection to the argument. The jury was not instructed to disregard the statement because counsel did not ask that relief, only a mistrial. The declaration of a mistrial is a drastic remedy that should be employed only in those extraordinary circumstances [693]*693in which prejudice to the defendant can be removed in no other way. Whether a mistrial should be declared rests largely within the discretion of the trial court and its ruling will not be disturbed in the absence of an abuse of discretion. State v. Davis, 653 S.W.2d 167, 176 (Mo. banc 1983). There was no abuse of discretion in this instance.

Although a prosecutor may not in closing argument refer to the accused’s participation in prior unrelated crimes as a basis to convict for a current offense, prior convictions of the accused may be used in argument as a reflection upon the credibility of the accused if he has testified. State v. Scott, 716 S.W.2d 413, 416 (Mo.App.1986). The excerpt from the state’s argument quoted above was preceded by the words, “as to whether he is telling the truth.” Both there and in other portions of the argument, the prosecutor indicated that Williams’ previous convictions were mentioned .as bearing on the credibility of Williams’ testimony. The argument was therefore legitimate and the defense objection should have been overruled. It follows, of necessity, that the court did not err in denying a mistrial.

In a final point, appellant relies on plain error to argue that the court erred in failing to make findings of fact supporting the conclusion that appellant was a prior and persistent offender. Associated with this point is the claim that the punishment imposed was that appropriate to a class A felony involving infliction of serious bodily injury, as discussed above.

The range of punishment for a class B felony is a term of years not less than five nor more than fifteen. Section 558.011.-1(2), RSMo.1986. In the case of a persistent offender, the range of punishment is a term of years not to exceed thirty. Section 558.016.6(2), RSMo.1986. The sentence of ten years imposed on Williams was well within the range of punishment to be assessed for a class B felony, even without considering his status as a persistent offender.

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Cite This Page — Counsel Stack

Bluebook (online)
728 S.W.2d 690, 1987 Mo. App. LEXIS 4017, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-williams-moctapp-1987.