               In the Missouri Court of Appeals
                                   Western District

MICHAEL W. SCHLAX,                        )
                               Appellant, )
v.                                        )             WD75874
                                          )             FILED: February 4, 2014
STATE OF MISSOURI,                        )
                             Respondent. )

       APPEAL FROM THE CIRCUIT COURT OF PLATTE COUNTY
            THE HONORABLE JAMES W. VAN AMBURG, JUDGE

            BEFORE DIVISION TWO: GARY D. WITT, PRESIDING JUDGE,
               LISA WHITE HARDWICK AND ALOK AHUJA, JUDGES
       Michael Schlax appeals the judgment denying his Rule 29.15 motion, after he

was convicted of leaving the scene of a motor vehicle accident. Schlax contends the

motion court clearly erred in denying post-conviction relief because his appellate

counsel was ineffective in failing to raise a sufficiency of the evidence claim on appeal.

For reasons explained herein, we find no error and affirm the motion court's judgment.

                           FACTUAL AND PROCEDURAL HISTORY

       During the evening rush hour on September 26, 2007, a deputy sheriff from

Wyandotte County, Kansas began pursuing a pickup truck, driven by Schlax, in Kansas

City, Kansas. Schlax drove to the Fairfax Bridge. As he crossed the bridge into Platte

County, Missouri, he started driving north in the southbound lanes of traffic on Interstate

635. Because Schlax was traveling the wrong way on the highway during busy rush
hour traffic, the deputy sheriff decided that it was too dangerous to keep chasing

Schlax, so he terminated his pursuit.

           Meanwhile, Euriel Viveros had just exited southbound onto Interstate 635 when

he noticed that the traffic was clearing in front of him, and he heard tires squealing and

car horns honking. Viveros then saw Schlax's truck driving the wrong way on the

highway, heading toward him. Viveros, who was traveling at fifty-five miles per hour,

had no time to react. Schlax's truck hit Viveros's car head-on. The collision caused

very heavy front-end damage to Viveros's car, including major damage to the front

windshield and both front quarter panels.1 The collision also caused the driver's side

airbag to deploy in Viveros's car.

           When the airbag deployed, Viveros blacked out for about five seconds. Viveros

came to and saw smoke coming from his car, so he immediately exited the car by

opening the passenger's side door and jumping out. After he got out of the car, he

walked around to the trunk to try to find a safe spot. Viveros saw Schlax jump out of the

driver's side of the truck and walk toward him. Viveros thought that Schlax was coming

to help him, but Schlax jumped over a fence and started running through a field.

Shaken by the accident, Viveros sat down on the pavement and waited for the

ambulance to arrive. When the ambulance arrived, the paramedics examined Viveros.

Viveros suffered injuries to his right shoulder and right knee.

           Manuel Garcia, who was ahead of Viveros on Interstate 635 South and was

almost hit by Schlax, heard the collision and stopped his car. Garcia ran over to the

accident scene, saw that Viveros's car was totally damaged in front, and checked on

Viveros to make sure that he was okay and to help him. When Garcia saw Schlax take

1
    The car was totaled as a result of the collision.
                                                        2
off running, he and one of his passengers began chasing Schlax. Garcia and his

passenger pursued Schlax through the field but stopped after Schlax crossed some

railroad tracks. Law enforcement officers also pursued Schlax through the field but

were unable to catch him.

       Later that evening, officers apprehended Schlax in a wooded area near the

accident scene. When officers arrested and searched Schlax, they found a checkbook

that belonged to someone named Ricky Howell. Schlax told the officers that he was

Ricky Howell. The next day, Viveros identified Schlax from a photographic line-up as

the driver of the truck that hit him.

       The State charged Schlax as a prior and persistent felony offender with leaving

the scene of a motor vehicle accident, first-degree property damage, resisting a lawful

stop, careless and imprudent driving, and third-degree assault. In the subsequent jury

trial, Schlax did not testify and did not present any evidence. During closing argument,

Schlax's defense counsel argued that Schlax was mistakenly identified as the driver of

the truck. Defense counsel also argued that the State failed to prove that Schlax knew

that Viveros was injured in the accident, which is an element of the crime of leaving the

scene of a motor vehicle accident.

       The jury found Schlax guilty on all counts. The court sentenced him to seven

years of imprisonment on each of the counts of leaving the scene of a motor vehicle

accident and first-degree property damage, and to one year in jail on each of the

remaining counts. The court ordered the seven-year sentences to run consecutively to

each other and the one-year sentences to run concurrently to each other and

consecutively to the rest of the sentences, for a total of fifteen years. Schlax filed a

direct appeal, in which he alleged that the court had abused its discretion in denying his
                                              3
motion for a mistrial after a witness volunteered that the pickup truck he was driving was

stolen. This court affirmed Schlax's convictions and sentences in a memorandum and

per curiam order. State v. Schlax, 342 S.W.3d 901 (Mo. App. 2011).

       Schlax filed a pro se Rule 29.15 motion for post-conviction relief, which was later

amended by appointed counsel. In his amended motion, Schlax alleged that his

appellate counsel was ineffective for failing to challenge the sufficiency of the evidence

to support his conviction for leaving the scene of a motor vehicle accident. He claimed

that the State did not prove that he left the scene knowing that personal injury had

resulted from the accident.

       The court held an evidentiary hearing on Schlax's motion. Schlax's appellate

counsel testified that, in determining which issues to raise on appeal, she had a "vague

recollection" of reviewing the sufficiency of the evidence on this count, but she did not

specifically recall examining or researching the element that Schlax knew that a

physical injury had occurred. She further testified that a sufficiency of the evidence

claim with respect to the leaving the scene of the accident charge would not have

undermined or been detrimental to the claim that she did raise.

       Following the hearing, the court denied Schlax's motion. Schlax appeals.

                                  STANDARD OF REVIEW

       We review the denial of a post-conviction relief motion for clear error. Williams v.

State, 386 S.W.3d 750, 752 (Mo. banc 2012). We presume the motion court's findings

of fact and conclusions of law are correct. Edwards v. State, 200 S.W.3d 500, 509 (Mo.

banc 2006). We will not disturb the motion court's judgment unless, after a full review of

the record, we are "left with a definite and firm impression that the motion court made a

mistake." Williams, 386 S.W.3d at 752.
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                                                  ANALYSIS

          In his sole point on appeal, Schlax contends his appellate counsel was ineffective

for failing to challenge the sufficiency of the evidence supporting his conviction for

leaving the scene of a motor vehicle accident. Schlax argues the State failed to prove

that he knew that anyone had been injured in the accident.

          For an ineffective assistance of appellate counsel claim to succeed, the movant

"must establish that counsel failed to raise a claim of error that was so obvious that a

competent and effective lawyer would have recognized and asserted it." Id. at 753

(internal quotation marks and citation omitted). The movant is entitled to relief only if he

can demonstrate "a reasonable probability the appeal's outcome would have been

different." Id. (internal quotation marks and citation omitted).

          Appellate review of a challenge to the sufficiency of the evidence is limited to

determining "'whether there was sufficient evidence from which a reasonable juror might

have found the defendant guilty beyond a reasonable doubt.'" Id. at 753-54 (citation

omitted). In making this determination, "'[t]he 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. at 754 (citation omitted). We do

not decide whether we believe that the evidence at trial established guilt beyond a

reasonable doubt; instead, we are to decide whether, based upon the evidence

favorable to the State, "'any rational fact-finder could have found the essential elements

of the crime beyond a reasonable doubt.'" Id. (citation omitted).

          Section 577.060.12 defines the crime of leaving the scene of an accident:



2
    All statutory references are to the Revised Statutes of Missouri 2000.
                                                       5
        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 to a police officer, or if no police officer is in the vicinity, then to
        the nearest police station or judicial officer.

(Emphasis added.) Pursuant to this statute, the State must show that the defendant left

the accident scene knowing that his culpability or accident caused either personal injury

or property damage. In the verdict director, the State asked the jury to find that Schlax

left the scene knowing that he had caused physical injury to another person.3

        In State v. Dougherty, 216 S.W.2d 467, 472 (Mo. 1949), the Supreme Court

interpreted the term "knowing" in the predecessor statute to Section 577.060 as

meaning "actual knowledge rather than mere constructive knowledge, or such notice as

would put one on inquiry, and more than mere negligence in failing to know, or the mere

presence of facts which might have induced the belief in the mind of a reasonable

person."

        Almost thirty years after Dougherty was decided, the legislature enacted Section

562.016, which specifically defines the culpable mental states for criminal liability. The

definition of "knowing" in Section 562.016.3(1) provides, in pertinent part, that "[a]

person 'acts knowingly', or with knowledge . . . [w]ith respect to his conduct or to

attendant circumstances when he is aware of the nature of his conduct or that those

circumstances exist." As in Dougherty, the statutory definition of "knowing" requires

actual knowledge. Applied to Section 577.060.1, Section 562.016.3(1) requires the

3
  The record does not explain the State's decision to submit the charge based on personal injury rather
than (or in addition to) property damage, as permitted by Section 577.060.1.
                                                    6
State to prove that the defendant was aware that the accident caused personal injury,

which is an attendant circumstance to the crime of leaving the scene of a motor vehicle

accident.

       Knowledge, like intent, "'is rarely susceptible to direct proof.'" State v. Allen, 800

S.W.2d 82, 85 (Mo. App. 1990) (citation omitted). Hence, knowledge "'may be proved

by indirect evidence and inferences reasonably drawn from circumstances surrounding

the incident.'" Id. (citation omitted).

       The circumstances surrounding the incident in this case were that Schlax was

driving his truck the wrong way on an interstate highway during busy rush hour traffic.

He was fleeing from the police at the time, so the jury could reasonably infer that he was

not driving slowly. While traveling the wrong way on the highway at a presumably

higher rate of speed, Schlax drove his truck head-on into Viveros's car, which was

traveling at fifty-five miles per hour. The collision totaled Viveros's car, as it caused very

heavy damage to the car's front end and windshield. Smoke was emanating from the

car after the collision. The collision also caused the driver's side airbag to deploy, which

rendered Viveros unconscious for several seconds. A reasonable inference from

Viveros's exiting the car through the passenger door was that he did so because the

driver's side door was too damaged to open. Schlax could see that his hitting Viveros's

car head-on had caused extensive damage to the car, as he got out of his truck and

walked toward Viveros's car before fleeing. Viveros thought that Schlax was coming to

assist him. Another driver on the road, Garcia, stopped his car after hearing the

collision, saw the severity of the damage to Viveros's car, and offered to help Viveros.

       Schlax argues that these circumstances demonstrate only his knowledge that he

had caused property damage to Viveros's car and not his knowledge that he had
                                              7
caused personal injury to Viveros. He relies on State v. Palmer, 822 S.W.2d 536 (Mo.

App. 1992), to support his argument. In Palmer, the defendant failed to stop after he

sideswiped the driver's side of the victim's car, damaging the car and injuring the victim

and her passenger. Id. 537-38. After he was found guilty of leaving the scene of an

accident, knowing that personal injury had resulted from it, he appealed. Id. at 537. On

appeal, the Southern District of this court noted that "[t]he transcript contains no

testimony of any witness regarding knowledge by defendant about any injuries

sustained by [the victim and her passenger]." Id. at 541. Instead, the State had argued

that the "defendant knew 'by the force of the accident that somebody had been injured.'"

Id. The court held that, while evidence of the force of the accident would have likely

supported a finding that the defendant knew that he had damaged the victim's car, it

was insufficient to establish that the defendant knew that anyone was injured as a result

of the accident. Id.

       Palmer is factually distinguishable from this case. The evidence in Palmer

established that, after hitting the victim's car, the defendant drove on for fifty to seventy-

five feet before stopping momentarily, looking in his rearview mirror, and driving away.

Id. at 538-39. There was no evidence that the defendant ever saw the extent of the

damage to the victim's car. In contrast, the record in this case shows that Schlax was

fully aware that he had caused extensive damage to Viveros's car. After the accident,

Schlax got out of his truck and began walking toward Viveros's car before he fled. The

heavy damage to the front end of the car, the deployed driver's side air bag, and the

smoke emanating from the car were visible to him. Moreover, the concurring opinion in

Palmer noted that "the record does not demonstrate the impact was severe enough to

support an inference that defendant would have had to realize an occupant of the
                                              8
[victim's] vehicle could not escape injury." Id. at 541 (Crow, J., concurring). Here,

however, the impact of Schlax's slamming his truck head-on into Viveros's car while

both vehicles were traveling at a higher rate of speed was severe enough to support an

inference that Schlax must have realized that Viveros could not escape injury. Indeed,

the force of the impact prompted another driver on the road, Garcia, to stop and, after

seeing the severity of the damage to Viveros's car, to check on Viveros's condition.

Viveros was also examined by paramedics at the scene. Unlike in Palmer, the

circumstances in this case were sufficient to support an inference that Schlax was

aware that the accident had caused personal injury to Viveros.

       Any challenge to the sufficiency of the evidence to support Schlax's conviction for

leaving the scene of a motor vehicle accident would not have led to a different outcome

on appeal. Therefore, his appellate counsel was not ineffective for failing to raise such

a claim, and the motion court's findings and conclusions are not clearly erroneous.

                                       CONCLUSION

       We affirm the motion court's judgment.


                                             ___________________________________
                                             _
                                             LISA W HITE HARDWICK, JUDGE
ALL CONCUR.




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