STATE OF MISSOURI,                         )
                                           )
       Plaintiff-Respondent,               )
                                           )
vs.                                        )      No. SD33973
                                           )
MICHELE LYNN MONTIEL,                      )      Filed: October 25, 2016
                                           )
       Defendant-Appellant.                )

        APPEAL FROM THE CIRCUIT COURT OF CHRISTIAN COUNTY

                            Honorable Laura J. Johnson

AFFIRMED

       Michele Lynn Montiel ("Defendant") appeals from her convictions for one

count of second-degree assault and one count of leaving the scene of a motor

vehicle accident. Defendant claims (1) the evidence was insufficient to support

her conviction for second-degree assault because there was no evidence her

actions were reckless; (2) the trial court erred in failing to sua sponte instruct the

jury to disregard the prosecutor's comment that Defendant's attorney committed

an ethical violation; and (3) the evidence was insufficient to support her

conviction for leaving the scene of a motor vehicle accident because there was no
evidence she knew injury or property damage had occurred. Defendant's

arguments are without merit, and the trial court's judgment is affirmed.

                    Factual and Procedural Background

       This Court views the evidence in the light most favorable to the trial

court's judgment. State v. Wilson, 333 S.W.3d 526, 527 (Mo. App. S.D. 2011).

So viewed, the following facts were proven at trial.

       Charles Rickard ("Victim") was horseback riding along Blue Springs Road

with his friend Brad Rozell ("Mr. Rozell") around sunset on October 21, 2011.

Victim and his horse, Poco, were about 4 feet off the roadway when they were hit

from behind by a minivan. Mr. Rozell, who was riding another horse ahead of

Victim, heard an explosive sound. He saw the minivan and established eye

contact with the female driver who slowed initially before speeding away. Mr.

Rozell then found Victim injured and unconscious lying half on and half off the

road. Poco was also unconscious and clearly injured.

       Dustin Lawson arrived on the scene and parked his car to provide

protection for Victim from oncoming cars. Mark Moore arrived next on the

scene, finding there was enough light that he could see the entire road, the

surrounding area, and observe the injured man and horse.

       Emergency personnel then arrived. Victim had a crushed skull, shattered

wrist, and five or six broken ribs. Poco's numerous injuries included a broken

leg, and he had to be euthanized. Mr. Rozell gave law enforcement officers a

description of the minivan and the female driver.

       The 911 call was received at 7:07 p.m. Highway Patrol Trooper Amanda

Kahler ("Trooper Kahler") arrived, just after sunset, at 7:23 p.m. Headlights were

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still not necessary to see. She found a 21-foot skid mark, streaks of horse manure

where it appeared the horse had been dragged by the vehicle, some scraps of

silver or gray paint, and the passenger-side rearview mirror from a vehicle. The

debris trail was approximately 104 feet long.

       Shortly after ten that evening, Defendant contacted the police. Trooper

Kahler was dispatched to Defendant's home. Defendant told Trooper Kahler she

had hit an animal in the area but until she saw a story on the ten o'clock news

about a horse and rider being hit, she did not realize she might have been the

driver in that accident. There was a silver Dodge Caravan parked in the driveway.

The minivan had suffered extensive damage. The passenger-side rear view

mirror was missing. The passenger side of the front windshield was shattered

and protruded into the vehicle. There was horse hair, blood, flesh, and manure

all over the minivan, including a chunk of flesh stuck in the luggage rack on the

top of the vehicle. The headlight assembly was broken, and the fender had been

torn away. A portion of the horse's tail was stuck in the headlight assembly.

There was broken glass and manure inside the passenger compartment of the

vehicle as well.

       Trooper Kahler found a dish cloth in the headlight assembly. When she

inquired of Defendant, Defendant said she had tried to wipe off the vehicle when

she got home. Defendant said there was "horse hair and tissue and blood all

over" and that "it was disgusting." At that point, Trooper Kahler asked Defendant

if she had been drinking, and Defendant stated she had two beers at around 2:30

in the afternoon. Defendant showed one indicator of intoxication on the

horizontal gaze nystagmus test and smelled faintly of alcohol. Defendant began

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to cry and said she had hit a horse. Defendant said "she never did see a rider"

and gave no explanation for why she did not stop.

       Defendant was charged with second-degree assault and leaving the scene

of a motor vehicle accident. Defendant had a jury trial on April 13 through 15,

2015. The State adduced the evidence summarized above.

       Defendant adduced evidence that deer-vehicle collisions were common

and that "colliding with a deer can cause serious property damage to a vehicle."

Then Defendant testified that at the time of the collision it was dark and she had

her headlights on. She heard a "loud thump" and looked back to see what she

had hit, but did not see anything. She assumed she had hit a deer and continued

driving. She testified she did not realize she had hit a horse and rider until she

saw the story on the ten o'clock news.

       The jury found Defendant guilty, and the trial court sentenced her as a

prior offender to five years' imprisonment for second-degree assault and four

years' imprisonment for leaving the scene of a motor vehicle accident. This

appeal followed.

                                    Discussion

   Point One: Sufficiency of the Evidence of Second-Degree Assault

       In her first point, Defendant argues there was insufficient evidence to

support the verdict for second-degree assault because the prosecution failed to

prove she acted recklessly. Defendant's argument ignores the standard of review

by focusing entirely on evidence favorable to Defendant's position.

       When reviewing a claim that the evidence was insufficient to support a

conviction, Missouri appellate courts "view the evidence and inferences most

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favorably to the verdicts, disregard all contrary evidence and inferences, and give

the trier of fact great deference." Wilson, 333 S.W.3d at 527. The question then

"is limited to a determination of whether there was sufficient evidence from

which a reasonable trier of fact could have found [the defendant] guilty beyond a

reasonable doubt." State v. Morrison, 174 S.W.3d 646, 648 (Mo. App. W.D.

2005). "The appellate court's function does not include acting as a 'super juror'

with veto powers." State v. Clark, 110 S.W.3d 396, 400 (Mo. App. W.D. 2003).

Rather, "[t]he determination of a witness'[s] credibility is a function of the jury,

and it is within the jury's province to believe all, some or none of a witness'[s]

testimony." State v. Brown, 996 S.W.2d 719, 728 (Mo. App. W.D. 1999).

       As charged in the present case, "[a] person commits the crime of assault in

the second degree if he . . . [r]ecklessly causes serious physical injury to another

person[.]" § 565.060, RSMo Cum. Supp. (2013). Moreover, "[a] person 'acts

recklessly' or is reckless when he consciously disregards a substantial and

unjustifiable risk that circumstances exist or that a result will follow, and such

disregard constitutes a gross deviation from the standard of care which a

reasonable person would exercise in the situation." § 562.016.4, RSMo (2000).

       "Mental state is rarely capable of direct proof." Brown, 996 S.W.2d at

729 (quoting State v. Rowe, 838 S.W.2d 103, 111 (Mo. App. E.D. 1992)). "Proof

of a requisite mental state is usually established by circumstantial evidence and

permissible inferences." Id. "In determining whether the defendant possessed

the requisite mental state, the jury may look at evidence of and draw inferences

from the defendant's conduct before the act, during the act and after the act." Id.

Missouri courts have found recklessness sufficient to support a conviction for

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second-degree assault when a driver directs his or her vehicle off the roadway and

hits a clearly visible object. See Wilson, 333 S.W.3d at 527-28. Furthermore,

the jury is entitled to consider a defendant's attempts to flee or conceal evidence

as providing further evidence of guilt. State v. Chapman, 876 S.W.2d 15, 18

(Mo. App. E.D. 1994); State v. Lockett, 639 S.W.2d 132, 135 (Mo. App. W.D.

1982). And, "[w]hen proven false, exculpatory statements evidence a

consciousness of guilt." State v. Hibbert, 14 S.W.3d 249, 253 (Mo. App. S.D.

2000).

          In the present case, Victim testified he was at least four feet off the

roadway when he was struck. Even after the accident, witnesses explained that

when they first arrived at the scene it was light enough to see the entire road

without headlights. From this evidence, the jury was permitted to infer that

Defendant drove her car off the roadway and that she could see Victim and his

horse when she did so. Such conduct was sufficient to support a finding of

recklessness. See Wilson, 333 S.W.3d at 527-28. Here, however, the jury also

had evidence that Defendant left the scene precipitously and attempted to clean

the vehicle. These attempts to conceal her involvement demonstrate

consciousness of guilt. See Chapman, 876 S.W.2d at 18; Lockett, 639 S.W.2d

at 135.

          In support of her argument to the contrary, Defendant relies on facts

favorable to Defendant's position and contrary to the jury's verdict. Under our

standard of review, they must be disregarded. See Wilson, 333 S.W.3d at 527.




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       There was sufficient evidence from which the jury could infer Defendant

acted recklessly when she struck Victim and his horse with her vehicle.

Defendant's first point is denied.

                    Point Two: Prosecutor's Statements

       In her second point, Defendant argues the trial court erred in failing to

instruct the jury to disregard the prosecutor's comment "that [D]efendant's trial

counsel had committed an ethical violation by failing to provide phone records to

the [S]tate[.]" We disagree.

       The following additional facts are relevant to the disposition of this claim.

During the prosecution's cross-examination of Defendant, the prosecutor asked

Defendant to identify the time she made certain phone calls on the night of the

collision. The following exchange ensued:

       A.     I'd have to look at my phone records, which I have gladly
              submitted to you guys, as you know. Um—but—

       Q.     I—actually you did not, so—

       A.     Oh, well.

       Q.     And if you gave them to your attorney that would actually be
              an ethical violation on his part not to disclose them, so—

       A.     I may have given them in the civil suit, [s]o I apologize.

       Q.     Okay. All right.

       A.     That could be my fault for—um, anyway, so your question
              exactly is?

       Q.     My question to you—

       [DEFENSE COUNSEL]: Well, Your Honor, I'm going to object to
            the suggestion that I'm guilty of an ethical violation here. If
            she wants to pro- --prove I have done something unethical in
            this case, she's welcome to try it. But I don't want the
            insinuation to this jury.

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       THE COURT: I'll sustain the objection.

       [DEFENSE COUNSEL]: I've been doing this for almost 50 years
            without that kind of complaint.

No request was made of the trial court for any further relief. The prosecutor said

nothing further about this issue, although defense counsel raised this issue in his

closing statement.

       This claim is not preserved for appellate review because Defendant

received all the relief she requested below. "Missouri courts have been reluctant

to criticize a trial court when it has declined to take action on its own motion on

behalf of a party during the examination of a witness." State v. Roper, 136

S.W.3d 891, 902 (Mo. App. W.D. 2004). "Where an accused's objections to

questions are sustained and there is no further objection or motion requesting

additional relief, nothing is preserved for appellate review, as the accused has

been granted all the relief requested." State v. Sand, 731 S.W.2d 488, 492 (Mo.

App. S.D. 1987). Here, Defendant objected, and the trial court sustained the

objection. Defendant requested no further relief. Defendant's claim is not

preserved for appellate review. See id.

       Defendant's second point is denied.

  Point Three: Sufficiency of the Evidence of Leaving the Scene of a

                            Motor Vehicle Accident

       In her final point, Defendant claims the evidence was insufficient to

support her conviction for leaving the scene of a motor vehicle accident. She

claims the evidence showed instead that she "was not aware that she had struck

an individual or damaged property, and that upon realizing she had done so, she


                                          8
had immediately contacted law enforcement[.]" Again, Defendant's argument

ignores the standard of review by focusing on evidence favorable to her position

at trial.

        As laid out above, when reviewing a claim that the evidence was

insufficient to support a conviction, Missouri appellate courts "view the evidence

and inferences most favorably to the verdicts, disregard all contrary evidence and

inferences, and give the trier of fact great deference." Wilson, 333 S.W.3d at

527. The question then "is limited to a determination of whether there was

sufficient evidence from which a reasonable trier of fact could have found [the

defendant] guilty beyond a reasonable doubt." Morrison, 174 S.W.3d at 648.

"The appellate court's function does not include acting as a 'super juror' with veto

powers." Clark, 110 S.W.3d at 400. Rather, "[t]he determination of a

witness'[s] credibility is a function of the jury, and it is within the jury's province

to believe all, some or none of a witness'[s] testimony." Brown, 996 S.W.2d at

728.

        Under Missouri law,

        A person commits the crime of leaving the scene of a motor vehicle
        accident when being the operator or driver of a vehicle on the
        highway or on any publicly or privately owned parking lot or
        parking facility generally open for use by the public and knowing
        that an injury has been caused to a person or damage has been
        caused to property, due to his culpability or to accident, he leaves
        the place of the injury, damage or accident without stopping and
        giving his name, residence, including city and street number, motor
        vehicle number and driver's license number, if any, to the injured
        party or a police officer, or if no police officer is in the vicinity, then
        to the nearest police station or judicial officer.

§ 577.060.1, RSMo (2000). As relevant to the present case, "[a] person 'acts

knowingly' . . . when he is aware of the nature of his conduct or that those

                                             9
circumstances exist[.]" § 562.016.3, RSMo (2000). "Mental state is rarely

capable of direct proof." Brown, 996 S.W.2d at 729 (quoting Rowe, 838

S.W.2d at 111). "Proof of a requisite mental state is usually established by

circumstantial evidence and permissible inferences." Id. "In determining

whether the defendant possessed the requisite mental state, the jury may look at

evidence of and draw inferences from the defendant's conduct before the act,

during the act and after the act." Id.

       Here, there was substantial damage to Defendant's vehicle with physical

evidence of horse hair and manure found after the collision. Furthermore, there

were several witnesses who testified it was light enough to see the roadway clearly

even after the accident occurred. Victim's body was found half on and half off the

roadway. Mr. Rozell testified he established eye contact after the accident with

Defendant before she drove away. Under these circumstances, the jury could

reasonably infer Defendant saw what she hit and knew she had caused damage

and injury.

       There was sufficient evidence to support an inference that Defendant had

the requisite mental state and knew the collision had caused injury and property

damage. Defendant's third point is denied.

                                     Decision

       The trial court's judgment is affirmed.

MARY W. SHEFFIELD, C.J. – OPINION AUTHOR

JEFFREY W. BATES, P.J. – CONCURS

DON E. BURRELL, J. – CONCURS



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