Opinion
No. ED 79647
October 29, 2002
Appeal from the Circuit Court of St. Louis County, Honorable Philip J. Sweeney.
Kent Denzel, 3402 Buttonwood, Columbia, Missouri, 65201, for Appellant.
John M. Morriss II, Supreme Court Building, Audara Charlton, P.O. Box 899, Jefferson City, Missouri, 65201, for Respondent.
Jerome Montgomery (hereinafter, "Appellant") appeals the trial court's judgment after a jury verdict convicting him of one count first degree burglary, Section 569.160 RSMo (2000), one count first degree robbery, Section 569.020, one count second degree assault, Section 565.050, and three counts of armed criminal action, Section 571.015. Appellant claims the trial court erred when it allowed the State to make an improper comment during closing argument. Appellant also argues there was insufficient evidence to support the conviction for second degree assault and the armed criminal action count related to the second degree assault. We affirm.
All further statutory references are to RSMo (2000) unless otherwise indicated.
The facts, viewed in the light most favorable to the verdict, are as follows: Adam Moore (hereinafter, "Moore") called Appellant after his car broke down. Appellant picked up Moore, and they went to a nightclub so that Moore could relieve some stress over his car breaking down.
Later, in the early morning hours of May 18, 2000, Moore told Appellant that he needed to see a man who owed him money and gave Appellant directions to the house. They left the nightclub and went to Donald Bonner's (hereinafter, "Donald") house. Donald lived in Woodson Terrace with his wife, Vanessa Bonner, (hereinafter, "Vanessa") and Vanessa's three children.
We mean no disrespect to the victims by addressing them by their given names, but do so for clarity.
Upon arrival, Moore kicked in the front door to gain entry to the house, pulled out a gun, and screamed, "F.B.I., we have a search warrant." Appellant followed Moore into the house, and Moore found Donald and Vanessa in their bedroom. Moore showed Donald his gun and demanded to know where the money was. Donald was dragged out of bed and hit with the gun. Vanessa tried to leave the bedroom to check on her children, but Appellant stopped her and told her not to move from the bedroom. Vanessa was told that if she did not give them the money they wanted, they would take Donald outside and kill him. Donald was told that if he did not give them the money, he would be shot in the head.
Moore proceeded to drag Donald outside. In the meantime, Appellant stayed inside with Vanessa and the children. Vanessa's oldest child, Amos (hereinafter, "Amos") heard the commotion, and Moore yell "F.B.I" and left his bedroom. When Appellant saw Amos moving about the house, he told him to get down on the floor and stood over him with a gun. Appellant also went to Vanessa's daughter's room, pulled her out of bed, and unplugged her phone.
Donald escaped from Moore and went to a neighbor's house to have someone call the police. Once Donald escaped, Moore went back into the house and demanded that Vanessa give him something. Vanessa gave him some jewelry, but Moore continued to demand money. Vanessa told him that the money they had belonged to Donald's employer and that it was hidden. Moore left the bedroom, then returned, at which time he told Vanessa to turn around. When she complied, he shot her in the buttocks.
After the police were contacted, Donald ran back to the house, where he saw Moore and Appellant leaving. Upon entering the house, Donald discovered Vanessa bleeding and realized that she had been shot. Donald also noticed that Moore and Appellant had taken his wallet, cellular phone, pager, car keys, and a bank bag containing over $7,000 which belonged to his employer. The police arrived shortly thereafter, and Vanessa was transported to the hospital to be treated for her gunshot wound.
The police spotted Appellant's vehicle near the Bonner residence. In an attempt to detain them, the police asked Appellant to stop and stay put so that they could conduct their investigation. Instead of stopping, Appellant sped off in the car and crashed it into a fence. At this point, Appellant and Moore exited the vehicle and ran in different directions. Appellant climbed a fence, crossed Interstate 70, and ran into Lambert International Airport where airport police apprehended him. Moore climbed another fence and escaped. He was apprehended approximately four hours later with some of Vanessa's jewelry in his possession.
At trial, Donald, Vanessa and the children all testified about the incident in their home. Vanessa, Amos and Vanessa's daughter identified Appellant as the second man with Moore at the time of the burglary. Appellant did not testify at trial, but called Moore as his sole witness. Prior to trial, Moore pleaded guilty to the offenses charged and was sentenced to twenty-two years' imprisonment. Moore testified that Appellant did not know what he intended to do when they arrived at the Bonner residence and that Appellant seemed in shock during the incident. Moore also testified that he did not know where Appellant was during the time the burglary, robbery, and shooting took place.
A jury convicted Appellant of one count first degree burglary, one count first degree robbery, one count second degree assault, and three counts of armed criminal action. This appeal follows.
Appellant's first point on appeal claims the trial court erred when it overruled his objection to a comment made by the prosecutor during closing argument. The prosecutor made the following statement during closing argument:
Why did [Appellant] go in? Adam Moore told you at the club he had this plan to do a robbery. Now, the question is how did he aid or encourage. He's standing right there and he goes in the house with him. And they are yelling F.B.I. That's just the stuff based on Adam Moore's testimony. He provides these elements.
Appellant claims the prosecutor misstated the evidence because Moore never testified that they were yelling "F.B.I.". Moore testified that he was the one yelling, not Appellant. Appellant claims that this misstatement caused him to suffer prejudice as a result because it bolstered the testimony of the victims and in effect created a significant accusation by Moore.
Trial courts are vested with considerable discretion in controlling closing arguments, and their rulings are reversible only for an abuse of discretion. State v. Rousan, 961 S.W.2d 831, 850 (Mo.banc 1998). Prosecutors are entitled to argue matters supported by the evidence and reasonable inferences therefrom. State v. Crump, 986 S.W.2d 180, 188 (Mo.App.E.D. 1999). Absent an abuse of discretion resulting in prejudice to the defendant, trial court rulings on such issues should not be overturned on appeal. Id.
In this case, we find the trial court did not abuse its discretion in overruling Appellant's objection to the prosecutor's closing argument. The prosecutor's comments reflected the evidence presented at trial. Even if the prosecutor incorrectly attributed the comment to Moore alone, there was testimony from the victims that Appellant and Moore were both yelling "F.B.I.," such that Appellant did not suffer prejudice from the prosecutor's comment. Point denied.
Appellant's second and third points on appeal allege that there was insufficient evidence to support a conviction for second degree assault because there was insufficient evidence to support a finding of serious physical injury and that Appellant aided Moore in recklessly causing the assault. Appellant claims that Vanessa did not testify that she suffered from an impairment or protracted loss of function of her buttocks as a result of the shooting. Additionally, Appellant argues that he cannot be found to have aided Moore in recklessly causing Vanessa's injury because he was not in the room when she was shot.
In considering whether the evidence is sufficient to support the jury's verdict of second degree assault, we must look to the elements of the crime and consider each in turn to determine whether a reasonable juror could find each of the elements beyond a reasonable doubt. State v. Grim, 854 S.W.2d 403, 405 (Mo.banc 1993). We are required to take all of the evidence in the light most favorable to the verdict, granting the State all reasonable inferences from the evidence, and disregarding contrary inferences unless they are such a natural and logical extension of the evidence that a reasonable juror would be unable to disregard them. Id.
In order to be convicted for second degree assault, a person must recklessly cause serious physical injury to another person. Section 565.060.1(3). "Serious physical injury" is defined as "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." Section 565.002(6). "Protracted" means something short of permanent but more than of short duration. State v. Ross, 939 S.W.2d 15, 18 (Mo.App.S.D. 1997). "Impairment" is defined as damage, injury, or deterioration. Id. Whether an injury constitutes "protracted impairment" depends on the circumstances of each case. State v. Lanier, 985 S.W.2d 377, 379 (Mo.App.E.D. 1999). The mere fact that the victim of an assault recovers without residual damage does not render proof of a serious physical injury insufficient in a prosecution for second-degree assault. State v. Trimmer, 849 S.W.2d 725, 727 (Mo.App.E.D. 1993).
At the time of trial, almost a year after the shooting, Vanessa testified the area where she was shot remained swollen and continued to ache and there was no evidence presented to show that the condition would not continue to cause her pain in the future. This was sufficient to prove that she suffered a serious physical injury as a result of her gunshot wound because she had swelling and aching for a protracted period of time. See State v. Zahn, 823 S.W.2d 18 (Mo.App.E.D. 1991) (holding that even though assault victim who suffered bullet wound in leg did not complain of present pain or disability resulting from wound, this did not indicate that the injury was not serious when it was inflicted for purposes of assault physical injury requirement). Point denied.
Additionally, Appellant claims there was insufficient evidence to sustain his conviction for aiding Moore in recklessly causing Vanessa's injury because he was not in the room when she was shot. Appellant argues that even if he aided Moore in the burglary and the robbery, there was insufficient evidence to find that he purposefully aided Moore in committing a reckless assault. We disagree.
Missouri law is clear that anyone who in any way aids, abets, or encourages another in the commission of a crime by any form of affirmative participation with a common intent and purpose is guilty to the same extent as the principal offender even though the accomplice did not personally commit every element of the principal offense. State v. Kobel, 927 S.W.2d 455, 459 (Mo.App.W.D. 1996). Proof of any form of participation by the defendant in the crime is sufficient to support a conviction. State v. Forister, 823 S.W.2d 504, 508 (Mo.App.E.D. 1992). In Kobel, the Western District held that evidence of the defendant's presence at the scene of the assault, his participation and show of force, his association with others during the attack, and his flight after the attack, supported his conviction of second degree assault as an accomplice despite his claim that he was a mere bystander. Id. at 459.
Similarly, the evidence in this case supports the same conclusion reached in Kobel. Appellant was present at the scene of the assault even though he was in a different room of the house. Appellant participated with Moore in the commission of the burglary and robbery, and their breaking into the house constituted a show of force in that they grabbed the children and isolated them from their parents in an attempt to facilitate the robbery. Moreover, Appellant associated with Moore before, during, and after the commission of the assault. Finally, Appellant fled with Moore after the shooting and attempted to elude police. There was sufficient evidence to convict Appellant of purposefully aiding Moore in committing a reckless assault. Point denied.
Appellant's final point claims the trial court erred in overruling his motion for judgment of acquittal in that there was insufficient evidence to support a conviction for armed criminal action in connection with the second degree assault charge. Appellant argues that since the jury found Moore acted recklessly, as opposed to knowingly, in shooting Vanessa, recklessness will not support a conviction for armed criminal action based on Section 562.021.
Appellant was convicted of second degree assault and armed criminal action. "[A]ny person who commits a felony under the laws of this state by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon is also guilty of armed criminal action." Section 571.015.1. Thus, in order to convict Appellant for armed criminal action, the State was required to prove beyond a reasonable doubt: (1) he committed the underlying offense of second degree assault, and (2) he did so by, with, or through the use, aid, or assistance of a deadly weapon. State v. Danikas, 11 S.W.3d 782, 789 (Mo.App.W.D. 1999). "By definition, armed criminal action incorporates all the elements of the underlying felony [b]y such incorporation, armed criminal action adopts the level of mental culpability required of the underlying offense." Id. ( quoting State v. Hernandez, 815 S.W.2d 67, 72 (Mo.App.S.D. 1991)).
Section 571.015.1 does not expressly prescribe a culpable mental state. As such, we look to Section 562.021, which governs the application of a certain culpable mental state. Appellant believes the offense of armed criminal action does not prescribe a culpable mental state for any of its elements and claims Section 562.021.3 applies. Section 562.021.3 states:
Except as provided in subsection 2 of this section and section 562.026, if the definition of any offense does not expressly prescribe a culpable mental state for any elements of the offense, a culpable mental state is nonetheless required and is established if a person acts purposely or knowingly; but reckless or criminally negligent acts do not establish such culpable mental state. (emphasis added).
Alternatively, the State believes the first element of armed criminal action prescribes a culpable mental state because it requires the State to prove the commission of any felony. As such, Section 571.015.1 requires the State to prove the culpable mental state of the underlying offense. The State also argues that Section 571.015 does not prescribe a culpable mental state for the second element of armed criminal action, and no mental state is required for the second element of this offense. Hence, the State argues that Section 562.021.2 governs the applicable culpable mental state. Section 562.021.2 states:
If the definition of an offense prescribes a culpable mental state with regard to a particular element or elements of that offense, the prescribed culpable mental state shall be required only as to specified element or elements, and a culpable mental state shall not be required as to any other element of the offense.
In State v. Cruz, 71 S.W.3d 612 (Mo.App.W.D. 2001), the Western District was the first appellate court to address the application of Section 562.021, as amended in 1997, to the offense of armed criminal action. Cruz was convicted of second degree assault and armed criminal action. Id. at 615. In his sole point on appeal, Cruz argued that the trial court plainly erred in submitting the State's verdict-director for armed criminal action without hypothesizing a culpable mental state of "knowingly," because it violated due process, MAI-CR 3d 332.02, and its Notes on Use. Id. Cruz claimed that in order to convict him of armed criminal action under Section 571.015.1, the jury was required to find he knowingly committed the underlying offense of second degree assault. By failing to instruct the jury in such a manner, the jury was allowed to convict him on the lesser culpable mental state of recklessly, the mental state which the jury was required to find in order to convict him of second degree assault. Id.
Before addressing the instructional error that Cruz raised, the Western District first examined "to what extent, if any, the culpable mental state of knowingly is to be applied to the proof elements of [armed criminal action] in accordance with the substantive law, found in Section 571.015.1 and Section 562.021, and MAI-CR 3d 332.02 and its Notes on Use." Id. at 618. After discussing the elements of armed criminal action and Section 562.021.3, the court recognized that the parties disagreed as to whether the supplied mental state is to be read as applying to both the first and second element of armed criminal action, or only as to the second element. The court determined that "the resolution of this issue turns on the interpretation of Section 562.021.3 as applied to Section 571.015.1" Id. The court set forth the following interpretation:
Reading subsections 2 and 3 [of Section 562.021] together and giving the language used its plain and ordinary meaning, we interpret them as providing that if the definition of the offense provides a culpable mental state as to one or more elements of the offense, subsection 3 would not apply so as to require a supplied culpable mental state. In that regard, as discussed, supra, to convict on [armed criminal action] under Section 571.015.1, the State is required to first prove that the defendant committed the underlying offense. Proof of this element would necessarily require proof of each and every element of the underlying offense, including any prescribed mens rea of that offense, State v. Hyman, 37 S.W.3d 384, 391 (Mo.App. 2001); Danikas, 11 S.W.3d at 789, in this case, recklessly, the culpable mental state prescribed for second degree assault, Section 565.060.1(5). State v. Jennings, 887 S.W.2d 752, 755 (Mo.App. 1994). Thus, in this case, Section 571.015.1, by definition, implicitly prescribes a culpable mental state as to the first element of proof of [armed criminal action], proof of the elements of the underlying offense such that pursuant to Section 562.021.2, Section 562.021.3 would have no application. Jennings, 887 S.W.2d at 755. The upshot of our interpretation, of course, is that the prescribed culpable mental state for [armed criminal action], under Section 571.015.1, would be the same as for the underlying felony, as expressly prescribed for that offense or as supplied pursuant to Section 562.021.3.
Id. at 619. The court went on to recognize that this interpretation conflicted with MAI-CR 332.02 and its Notes on Use. However, having declared the substantive law at issue and finding it to be in conflict with MAI-CR 332.02, the court stated that substantive law controls.Id., (citing State v. Carson, 941 S.W.2d 518, 520 (Mo.banc 1997)). The court concluded there was no instructional error.
We follow the analysis in Cruz and find that the trial court did not err in denying Appellant's motion for judgment of acquittal at the close of the evidence. As we stated earlier, there was sufficient evidence to convict Appellant of second degree assault and the corresponding culpable mental state of recklessness. Following Cruz, we hold that Section 571.015.1 implicitly prescribes a culpable mental state as to the first element of proof of armed criminal action, proof of the elements of the underlying offense such that pursuant to Section 562.021.2, Section 562.021.3 would have no application. Therefore, in applying Section 562.021.2, the prescribed culpable mental state for armed criminal action in this instance would be recklessness, and as a result, it supports Appellant's conviction for armed criminal action. Point denied.
The judgment is affirmed.
Mary R. Russell, J., and Mary K. Hoff, J., concur.