STATE OF MISSOURI,                              )
                                                )
        Plaintiff-Respondent,                   )
                                                )
vs.                                             )               No. SD33556
                                                )
JASON SCOTT WARREN,                             )               Filed: September 11, 2015
                                                )
        Defendant-Appellant.                    )

           APPEAL FROM THE CIRCUIT COURT OF BUTLER COUNTY

                       Honorable Michael M. Pritchett, Circuit Judge

AFFIRMED

        A jury convicted Jason Scott Warren (“Defendant”) of assault in the second

degree in breaking the foot of James Blackwell (“Victim”) with a motor vehicle, and of

speeding. The trial court sentenced Defendant as a prior offender to concurrent terms of

five years in the Department of Corrections for assault in the second degree and 120 days

in county jail for speeding. Defendant appeals only the trial court’s judgment for assault

in the second degree, and, in a single point, asserts that “[t]he trial court erred in entering

judgment and sentence for . . . assault in the second degree . . . in that there was not

sufficient evidence to show that [Defendant] ‘recklessly’ caused serious physical injury

to [Victim].” We disagree, and affirm the trial court’s judgment.



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                                   Standard of Review

       Our Supreme Court has described our standard of review as follows:

                In reviewing the sufficiency of evidence, this Court limits its
       determination to whether a reasonable juror could have found guilt beyond
       a reasonable doubt. State v. Belton, 153 S.W.3d 307, 309 (Mo. banc
       2005). In so doing, the evidence and all reasonable inferences therefrom
       are viewed in the light most favorable to the verdict, disregarding any
       evidence and inferences contrary to the verdict. Id. As such, this Court
       will not weigh the evidence anew since “the fact-finder may believe all,
       some, or none of the testimony of a witness when considered with the
       facts, circumstances and other testimony in the case.” State v. Crawford,
       68 S.W.3d 406, 408 (Mo. banc 2002).

State v. Freeman, 269 S.W.3d 422, 425 (Mo. banc 2008). In addition:

       Evidence is sufficient to support guilt if any reasonable inference supports
       guilt, even if other equally valid inferences do not. State v. Breedlove, 348
       S.W.3d 810, 814 (Mo.App. S.D.2011). . . . “The credibility and the effects
       of conflicts or inconsistencies in testimony are questions for the jury, and
       the appellate court will not interfere with the jury’s role of weighing the
       credibility of witnesses.” State v. Coleman, 263 S.W.3d 680, 683
       (Mo.App. S.D.2008).

State v. Simrin, 384 S.W.3d 713, 718 (Mo.App. S.D. 2012). Finally, a claim the

evidence was insufficient to support a verdict of guilty in a criminal case is reviewed on

the merits and not as plain error even when the defendant failed to raise the claim before

the trial court as in this appeal. State v. Claycomb, No. SC94526, 2015 WL 3979728, *2-

3 (Mo. banc June 30, 2015).

                              Facts and Procedural History

       Defendant was charged by amended information with assault in the second degree

in that Defendant “recklessly caused serious physical injury to [Victim] by means of a

dangerous instrument by trying to run over [Victim] with a vehicle, running over

[Victim’s] foot, breaking it.” The amended information also alleged that Defendant was




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a prior offender. The assault charge was consolidated with a separate charge of driving in

excess of the posted speed limit.

       Defendant waived his right to counsel, and represented himself at trial. The trial

was to a jury.

       At trial, Victim testified that he was the general manager of the Pony, a strip club,

and was working Saturday into Sunday, April 20 and 21, 2013. In the early morning

hours of Sunday, April 21, 2013, Victim was approached by a customer who stated that

Defendant was “harass[ing]” the customer and the customer’s girlfriend, and asked

Victim “to keep an eye on [Defendant] because [the customer] didn’t want any trouble

started.” Victim had never “met” Defendant before, and did not “recall” ever seeing him

at the Pony before. When the customer returned to his table, Defendant “g[o]t up from

where he was sitting at . . . the stage and approach[ed the customer and his girlfriend’s]

table and start[ed] arguing with” them.

       Victim approached the table and attempted to “separate” Defendant and the

customer and his girlfriend. Defendant continued to argue, and Victim told Defendant “it

was time to go.” Victim then forcibly removed Defendant from the Pony by “push[ing]”

him toward the door. During the time Victim was removing Defendant, Defendant “kept

turning around trying to go back to the table. [Defendant] was yelling about how he had

just bought three beers and that he wanted those beers.” Defendant also told Victim that

Defendant was “an undercover FBI agent.” Once Victim got Defendant to the door,

Defendant “started getting a little more violent as far as agitated, more in my face” and

refused to leave “until he got his beers.”




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       Victim called the police. While Victim was on the phone with the police,

Defendant shouted that he “was with the Mafia and then he said well, you [f--ed] up now,

I’m going to kill you. I'm going to get a gun and I’m going to shoot you.” Defendant

then began “walking towards his vehicle,” and Victim followed “to make sure that

[Defendant] didn’t have a gun.” As Defendant was getting into his vehicle, Victim told

Defendant “the cops are on their way, you know, you can’t go anywhere. The cops will

be here and everything else. [Defendant] continue[d] to say I’m going to go -- I’m

getting my gun, I’m going to kill you.” Victim also took a picture of Defendant and

Defendant’s license plate.

       Once Defendant got into his vehicle, his window was down and he continued to

yell “that he is getting his gun, he is coming back, he’s killing [Victim].” Defendant

began to “pull[] back slowly” from his parking space while Victim walked beside “the

driver’s side” of Defendant’s vehicle and told Defendant “the Police were coming, [you

don’t] need to leave.” Victim testified Defendant “knew [Victim] was there.” “[A]ll of

the [sic] sudden [Defendant] gunned it” and ran “over [Victim’s] [right] foot when

[Defendant] pulled backwards and hit [Victim] hard enough that [his] shoe came off.”

       Defendant then drove out of the parking lot onto the road, made a U-turn at a

nearby intersection, and reentered the parking lot “at a great rate of speed.” While doing

so, Defendant yelled “you want me to run over you, you want me to kill you, I’ll kill

you.” Victim believed Defendant was going to hit him and moved “back towards [a]

couple of parked cars.” Defendant “squealed through the parking lot and out another exit

heading towards Poplar Bluff.”




                                             4
       Victim could barely walk on his foot, but was unable to leave work at the Pony

until his shift was over. When his shift was over, Victim went to the hospital and learned

his foot was broken “in three spots.” A “boot” was placed on Victim’s foot. The toenail

on Victim’s “pinkie” toe “fac[es] outward from [Victim’s] toe.”

       Edwin Edwards, a regular patron of the Pony who had become “friends” with

Victim, observed Defendant “in his car hit [Victim] so hard that his foot came out of his

shoe.” Edwards testified that Defendant hit Victim “[w]hen [Defendant] put [the vehicle]

in gear to go forward,” but then acknowledged he did not actually see the vehicle run

over Victim’s foot because Edwards was on the opposite side of the vehicle from Victim.

Edwards had “[n]ever seen [Defendant] before.” On cross examination, Edwards

testified “[Victim] was in the front of [Defendant’s vehicle], yes. But, when [Defendant]

gave it the gas to leave [Victim] had got to the driver’s side and that’s when [Defendant]

hit [Victim’s] foot because like I said I was on the opposite side of the car so I couldn’t

see [Defendant] actually hit -- I didn’t see [Defendant] hit the foot.”

       Trooper Brian Arnold with the Missouri State Highway Patrol testified that he

stopped Defendant at “[a]pproximately one forty-five in the morning” on April 21, 2013,

at a Break Time convenience store “on the north end of Poplar Bluff.” According to

Trooper Arnold’s radar unit, Defendant was traveling 101 miles per hour in a 65 miles

per hour speed zone shortly before he was stopped. Defendant was “erratic” and “almost

combative,” and “threatened to kill me and come to my house and kill my family.”

Defendant also “seemed agitated.” Defendant denied that he was speeding.

       Deputy Wade Dare with the Butler County Sheriff’s Office testified that he

transported Defendant from the Break Time on the north end of Poplar Bluff to the Butler




                                              5
County Justice Center. After arriving at the Justice Center, Defendant asked Deputy

Ware “if [he] had any children and if [he] ever wanted to see them again.”

        Defendant testified that he “never [saw Victim beside his vehicle]. I never -- the

last I seen him he was in the door of the Pony,” and when he left the parking lot at the

Pony, he “did not come back to the parking lot. I proceeded straight.” After Defendant

left the Pony, he “was running over the speed limit, but [he] didn’t meet no cops.”

Defendant did not “think it was my car that [Trooper Arnold] clocked.” Defendant

denied making threats.

        The trial court instructed the jury in Instruction No. 5 that Defendant was guilty of

assault in the second degree if the jury found beyond a reasonable doubt that Defendant

“recklessly caused serious physical injury to [Victim] by means of a dangerous

instrument by running over his foot with a motor vehicle.” Instruction No. 5 further told

the jury that:

                A person acts “recklessly” as to causing serious physical injury if
        he consciously disregards a substantial and unjustifiable risk that his
        conduct will result in serious physical injury and such disregard
        constitutes a gross deviation from the standard of care which a reasonable
        person would exercise in the situation.

                 ....

               As used in this instruction, the term “serious physical injury”
        means 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.

The trial court also instructed the jury on the lesser included offense of assault in the third

degree (i.e., Defendant “recklessly created a grave risk of serious physical injury to

[Victim]”). Defendant did not object to the trial court’s instructions to the jury.




                                              6
       Defendant appeals only the trial court’s judgment for assault in the second degree.

As noted, Defendant claims that there was insufficient evidence that he “recklessly”

caused the injuries to Victim.

       Thus, Defendant’s mental state is at issue in this appeal. From Victim’s

testimony, a reasonable juror could have found beyond a reasonable doubt that: (1)

Victim had just removed Defendant from the Pony against Defendant’s will, (2)

Defendant knew Victim had reported Defendant’s conduct to law enforcement and

requested that law enforcement respond to the Pony, (3) Defendant was extremely angry

with Victim and threatened to kill Victim, (4) while Defendant was backing out of his

parking space, Victim was walking beside the driver’s side of Defendant’s vehicle,

Defendant’s driver’s side window was down, Defendant was shouting threats at Victim

and Victim was talking to Defendant attempting to persuade Defendant not to leave the

Pony before law enforcement arrived, (5) Defendant knew Victim was present beside the

driver’s side of Defendant’s vehicle, and (6) Defendant, while initially backing out

slowly, unexpectedly accelerated his vehicle and quickly increased the vehicle’s speed

and in the process ran over Victim’s right foot breaking it. From these facts, a reasonable

juror could have inferred beyond a reasonable doubt that Defendant in fact knew Victim

was walking beside the driver’s side of Defendant’s vehicle while he was backing up, and

that the unexpected increase in the speed of Defendant’s vehicle prevented Victim from

being able to avoid the tire of Defendant’s vehicle.

       From this evidence, a reasonable juror could have found beyond a reasonable

doubt that Defendant’s sudden acceleration while slowly backing out of a parking space

with an individual walking beside the vehicle attempting to persuade Defendant not to




                                             7
leave was a “conscious[] disregard[] [of] a substantial and unjustifiable risk” that the

sudden acceleration would result in serious physical injury to the individual walking

beside the vehicle. Similarly, a reasonable juror could have found beyond a reasonable

doubt that Defendant’s conscious disregard was “a gross deviation from the standard of

care which a reasonable person would exercise in the situation” with the result that

Defendant acted recklessly in causing Victim’s right foot to be broken. Therefore,

sufficient evidence supports the conviction.

       Defendant’s point is denied, and the trial court’s judgment is affirmed.



Nancy Steffen Rahmeyer, J. - Opinion Author

Gary W. Lynch, J. - Concurs

William W. Francis, Jr., J. - Concurs




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