 

In the Missouri Court of Appeals
Eastern District

DIVISION FOUR
STATE OF MISSOURI, ) ED104090
)
Respondent, ) Appeal from the Circuit Court
) of the City of St. Louis
v. ) l422-CR026}7-0]
)
WILLIAM EDWARDS, ) Honorable Michael F. Stelzer
)
Appellant. ) Filed: February 7, 2017

Introduction

William Edwards (Defendant) appeals the judgment entered upon his convictions
of two counts of assault in the second degree, two counts of armed criminal action, one
count of resisting arrest, and one count of driving while revoked. He argues that his two
convictions for assault resulting from the same act violate his right to freedom from double

jeopardy. He also contests the sufficiency of the evidence to support his convictions We

affirrn.

Background

Defendant waived ajury trial on the above charges The evidence at his bench trial,

in the light most favorable to thejudgment, Was the followingl On July 5, 2105, Sergeant

 

1 State v. Anderson, 386 S,W.3d 136, 190 (Mo. App. E.D. 2012) (reviewing court views evidence in light

most favorable to verdict).

 

Paul Anderson (Sergeant Anderson) was working at a DWI checkpoint, where it was his
task to locate any vehicles turning around or trying to avoid the checkpoint before reaching
it. He saw a dark~colored Mercury turn around before reaching the checkpoint and then
accelerate away from the checkpoint at a high rate of speed. Sergeant Anderson
immediately pulled into the street behind the Mercury, activated his lights and sir'ens, and
attempted to stop the vehicle. The driver of the Mercury, later identified to be Defendant,
did not stop.

Sergeant Anderson followed the Mercury and observed it go through a red light
without stopping, traveling at speeds up to 70 miles per hour on a street with a speed limit
of 30 miles per hour, After turning onto a different street, the Mercury reached speeds of
90 miles per hour and was crossing over the center lane of the road. Defendant drove the
car through another red light while on the left side of the road. At one point, Defendant
had to stop the Mercui‘y due to traffic backed up at a red light. Sergeant Anderson pulled
up behind the Mei'cury, exited the police vehicle, walked over to the Mercury, and
attempted to take Defendant into custody. The driver’s side door handle of the Mer'cury
was locked, and Defendant continued trying to move the vehicle around tr'affic; The
stoplight turned green and traffic started to flow again, so Sergeant Anderson returned to
his police vehicle and continued following Defendant.

As Sergeant Anderson was following Defeudant eastbound at a speed of
approximately 74 miles per hour, he saw Defendant go through a red light at an intersection
Without attempting to stop. Another vehicle came through the intersection from the south

at the same time and collided with the Mer'cur‘y. Defendant’s vehicle spun to the north, up

 

onto a sidewalk and into a yard, struck a tree, and became tangled with a fence. The other
vehicle spun eastbound, rolled a bit south, and came to rest against the curb.

Sergeant Anderson saw Defendant inside his vehicle trying to get out through the
front passenger door. When Defendant saw Sergeant Anderson he tried to go back into the
vehicle. Sergeant Anderson was able to put one handcuff on Defendant, and backup
officers arrived and helped get Defendant out of the velricle. Sergeant Anderson and some
other officers went to the other vehicle and saw two women, neither of whom were moving.
The driver, Pierra Hathaway (Hathaway), was hanging out of the driver’s side door where
the window was broken. Sergeant Anderson did not have any contact with the passenger,
Shawnte Champ (Champ).

Hathaway’s mother, l\/laria Fonville (Fonville), testified at Defendant’s trial that
she received a call from the hospital that night regarding her daughter. Fonville went to
the hospital and found Hathaway in a coma with a bolt driven into her brain. Hathaway
was in a coma for three weeks, and her condition at the time of trial was that she had
sustained a spinal cord injury and brain darnage, leaving her with the cognitive ability of a
lO-year-old. At the time of trial, Hathaway had to use a walker to get around, and she was
no longer able to take care of her two children or provide any income for her family as she
had previously. At trial, Champ testified that she was not able to remember the moment
of irnpact, but she testified that she suffered a lacerated spleen, a broken wrist, a broken
jaw, and head injuries because of the accidentl

The trial court found Defendant guilty in Counts l and III of second-degree assault,
one related to Hathaway and one related to Champ, for which the court sentenced

Defendant to concurrent terms of 15 years’ imprisonment The trial court also found

 

Defendant guilty in Counts ll and IV of the accompanying charges of armed criminal
action. The trial court sentenced Defendant to 15 years’ imprisonment for each, Count iV
to be served concurrently with all of the other counts, and Count IlI to be served
consecutively Finally, the trial court found Defendant guilty in Count V of resisting arrest
and in Count VI of driving while revoked, for which the trial court sentenced Defendant to
concurrent terms of seven years and one year', respectively, for a total sentence of 30 years.
This appeal follows.
Discussion

Defendant raises four points on appeal. First, he argues the trial court erred in
finding him guilty oftwo counts of second-degree assault because the charges arose out of
one act, and thus his conviction of more than one charge of assault and the accompanying
charge of armed criminal action violates his right to freedom from double jeopardy In
Point Il, Defendant argues that the trial court erred in convicting him of all counts of
second-degree assault and armed criminal action because the evidence at trial did not
support the charging dooument’s language describing the collision. ln Points III and IV,
Defendant argues that there was insufficient evidence to convict him of each count of
assault, and thereby each accompanying count of armed criminal action, regarding the issue
of whether the collision caused the injuries to each victim. We discuss each in turn.

M

Defendant argues that the trial court erred in convicting him of two counts of

second-degree assault arising from one criminal act, thus violating double jeopardy We

disagree

 

Defendant raises this claim for the first time on appeal. The protection against
doublejeopardy is a constitutional right addressing the power of the State to bring a charge
against an accused. State v. Neher, 213 S.W.?)d 44, 48 (l\/lo. banc 2007). ln order to
preserve a constitutional claim for review, it must be raised at the earliest opportunity
State v. Horton, 325 S.W.3d 474, 477 (l\/lo. App. E.D. 2010). However, if a claim of double
jeopardy can be determined from the face of the record, it is entitled to plain error review
upon appeal. Ne_her, 213 S.W.3d at 48. Here, the record does not facially reveal any such
error.

One of the protections afforded by the double jeopardy clause in the Fifth
Arnendrnent to the United States Constitution is a protection from “multiple punishments
for the Same offense.” State v. Hardin, 429 S.W.Sd 417, 421 (Mo. banc 2014). ln this
respect, “the Double Jeopardy Clause does no more than prevent the sentencing court from
prescribing greater punishment than the legisiature intended.” Li (quoting Missouri v.

Hunter, 459 U.S. 359, 366 (1983)); see also State v. Walker, 352 S.W.3d 385, 387 (Mo.

 

App. E.D. 201l) (Missouri follows separate offense rule). Thus, the first step is to look to
the statute under which Defendant was charged and convicted. State v. Porter, 464 S.W.3d
250, 255 (Mo. App. E.D. 2015).

Here, Defendant was convicted of second-degree assault under Section 565.060,
RSMo. (Supp. 2006), which states the following:

1. A person commits the crime of assault in the second degree
if he:

(3) Recklessly causes serious physical injury to another
person[.]

 

The statute defines assault as causing injury to another person, in the singular. Thus, the
plain language indicates that an assault on several persons would support separate charges
of assault against each victim

The Missouri Supreme Court considered a similar issue in State v. Smith, 456
S.W.Bd 849 (Mo. banc 2015). There, the defendant had fired a gun three or four times at
a person who was running away from him, missing that person but hitting and killing
another person nearby. § at 851. The defendant was convicted of first-degree murder for
the victim he had killed and first-degree assault for the person the defendant had shot at
but had not injured. id. ln concluding that the defendant’s freedom from double jeopardy
was not violated by the two convictions, the Missouri Supreme Court reasoned, “[w]hen
the same conduct results in harm to two or more victims, doublejeopardy is not violated if
a defendant is convicted for the harm to each victim.” li at 853.

The SLith Court relied on a previous l\/lissour'i Supreme Court case finding no
double jeopardy violation in a defendant’s convictions of three separate counts of
manslaughter where the defendant had killed three persons in an automobile accident. §
(citing State v. Whitley, 382 S.W.2d 665, 667 (Mo. 1964)). The My Court had stated
that “[t]he gravamen of the offense is killing a human being, and the statute by its terms
contemplates that there shall be as many offenses as there are human beings killed, whether
by one or several acts.” 382 S.W.Zd at 667, guoted in with 456 S.W.3d at 853;§§§_&1_1_8_9
State v. Bowles, 754 S.W.2d 902, 908 (“The double jeopardy doctrine is directed to the
identity of the offense, and not to the act”).

This analysis applies equally in the present case, and in fact this Court has found it

applies irl the context of multiple assaults arising from one act by the defendant In State

 

v. Bowles, this Court explained that “[t]he overwhelming weight of authority holds that a
single act of assault by the defendant which affects two or more persons constitutes
multiple offenses.” 754 S.W.Zd at 911 (citing authority).2 Here, while Defendant
committed one act, it resulted in harm to two different persons. His convictions for second-
degree assault for each victim do not offend either the applicable statute or Defendant’s
constitutional protection from double jeopardy.3 Point denied.

M

in Point II, Defendant argues that there Was insufficient evidence supporting his
convictions in Counts l and III, and therefore in the accompanying Counts ll and IV for
armed criminal action, because the evidence at trial did not support the crimes as charged
in the indictment in that there was no evidence he “struck” the victims’ vehicle with his
vehicle. We disagree.

As a threshold matter, Defendant’s argument that there was insufficient evidence
to convict him of the crime as charged in the indictment is not the same as arguing there
was insufficient evidence at trial that he committed the crime of second-degree assault.
w State v. Nelson, 334 S.W.$d 189, 197 (Mo. App. W.D. 2011). This is essentially a
claim of variance between the evidence at trial and the charging docurnent, to which

Defendant failed to object at trial or include in his motion for new trial. §§ iLl.

 

 

2 'l`lre statute at issue in Bowles was for third-degree assault, committed when a person “recl<less|y engages
in conduct which creates a grave risk of death or serious physical injury to another person.” 754 S.W.2d at
909 (quoting Section 565.070.1(4), RSMo. (l986)). While Defendant argues for a different double jeopardy
analysis where the mental state is recklessness, as for second-degree assault here, Bowles contradicts this
argument, and we find no legal authority in support of Defendant’s argument

3 Defendant had also contested his convictions in Counts ll and IV of armed criminal action in this point, as
one count of armed criminal action accompanied each count of second-degree assault Because we find no
error in Defendant’s two convictions of second-degree assault, there is similarly no error present in his
accompanying convictions for armed criminal action.

7

 

 

While we may review unpreserved errors for plain error, such review is
discretionary and involves a two-step process. First, we determine whether Defendant’s
claim of error facially establishes substantial grounds to believe that manifest injustice or
a miscarriage of justice has resulted, and if no facial grounds exists, we will decline to
review the claim. § (quOtiug State v. Barnes, 312 S.W.3d 442, 443 (l\/Io. App. S.D.
2010)). If we do find such an error, then we proceed to the second step to determine
whether manifest injustice or a miscarriage of justice actually occurred I_cL

flere, the indictment in Counts l and ill stated that Defendant “recklessly caused
serious physical injury . . . by running a red light and striking [the] car [containing victirns]
with his car at a high rate of speed.” However, Defendant argues, the evidence at trial
showed not that Defendant struck the victims’ car with his car, but rather as Defendant
proceeded through the intersection, the victims’ car actually struck his car.

“The purpose of an indictment is to enable the accused to make his defense and to

enable him to assert double jeopardy in bar of a further prosecution.” Nelson, 334 S.W.3d

 

at 197. So long as the indictment fulfilled this purpose, “any description that does appear
in the indictment is . . . surplusage and cannot affect the outcome of the trial.” I_cL (quoting
State v. Dayton, 535 S.W.2d 469, 479 (l\/lo. App. 1976)). “The State is not required to

prove surplus language in the [indictment].” Nelson, 334 S.W.3d at 197 (citing State v.

 

Q)_Ilis, 849 S.W.2d 660, 663 (Mo. App. W.D. 1993)).

Here, Section 565.060 required evidence that Defendant recklessly caused serious
physical injury to another person, and these elements were present in the language of the
indictment in order to show Defendant was prejudiced by any variance between the

indictment and the evidence as to which vehicle struck the otlrer, he had to show some

 

impairment to his defense. E Me_lson, 334 S.W.3d at 197 (citing State v. Barnes, 312
S.W.3d 442, 443 (Mo. App. S.D. 2010)).

Defendant fails to point out any way his defense was impaired by the variance here.
The indictment charged in Counts l and 111 that he recklessly caused serious physical injury
to another person. The trial court was not required to find the specific fact that Defendant’s
vehicle struck the victims’ vehicle; only that the Defendant recklessly caused serious
physical injury. There is no error, plain or otherwise, in the trial court’s judgment despite
the variance here. Point denied

Points IIl and IV

ln Point lll, Defendant argues that the trial court erred in convicting Defendant of
second-degree assault and the accompanying charge of armed criminal action in Counts l
and ll because there was insufficient evidence from which the court could find that the car
accident was the cause of Hatliaway’s injuries. In Point lV, Defendant makes a similar
claim, arguing that the trial court erred in convicting him of Counts lll and lV because
there was insufficient evidence showing the car accident caused injuries to Clramp. Given
the similarity ofthese arguments, we discuss them together.

ln reviewing a challenge to the sufficiency of the evidence supporting a conviction,
we do not re-weigh the evidence, but rather we “accept as true all evidence tending to prove
guilt together with all reasonable inferences that support the verdict, and ignore all contrary
evidence and inferences.” State v. Latall, 271 S.W.3d 561, 566 (Mo. banc 2008) (quoting
State v. Reed, 181 S.W.3d 567, 569 (Mo. banc 2006)). We ask “only whether there was
sufficient evidence from which the trier of fact reasonably could have found the defendant

guilty.” Latall, 271 S.W.3d at 566.

 

Here, Defendant disputes the element of causation with respect to both Hathaway
and Champ. To prove this eiernerrt of second-degree assault, the State had to prove that
Defendant’s unlawful act proximately caused the victims’ injuries. State v. Burton, 370
S.W.3d 926, 931 (Mo. App. E.D. 2012) (citing State v. Toran, 878 S.W.2d 9l3, 914 (l\/io.
App. E.D. 1994)). Defendant argues that though there was evidence of injury to each
victim, the State failed to produce sufficient substantial evidence proving that the car
accident was the proximate cause of these injuries. We disagree

The entire car chase and resulting collision were recorded by a dashboard camera
attached to Sergeant Anderson’s police vehicle. The trial court viewed the video of the
collision and also received into evidence photographs showing that the driver’s side of the
victims’ vehicle was demolished Regarding Hathaway, Sergeant Anderson testified that
he observed her hanging out of the broken driver’s side window of the car. Hathaway’s
mother testified that she went to the hospital within a few hours of the accident and saw
her daughter in a coma, “fighting for her life with a bolt driven into her br'ain.” Fonville
further testified that prior to the accident, Hathaway had been able to care for her children
and work to provide an income for her family, but she is no longer able to do either since
the accident, l

We find this sufficient evidence from which the trier of fact could have found the
element of causation beyond a reasonable doubt. Defendant argues that the lack of any
expert testimony on the issue of causation of Hathaway’s injuries or any testimony
regarding the precise timing of Hathaway’s injuries made the State’s case insufficient, but
we disagree Ther'e is no requirement that the State produce expert testirnony; rather, the

State must produce sufficient substantial evidence from which the trier of fact can find the

10

 

elements beyond a reasonable doubt. Here, the trial court could reasonably infer from the
evidence that Hathaway’s injuries were caused by the collision.

Regarding Champ, she testified directly about her injuries and that they resulted
from the collision. She also identified photographs of her injuries, which the trial court
received into evidence, and she stated, “These are my injuries due to the accident.” As the
trier of fact in this case, the trial court was free to believe or disbelieve this testimony w
State v. Williams, 277 S.W.3d 848, 853 (Mo. App. E.D. 2009). “[T]his Court should not
act as a ‘super juror’ with veto powers but should give great deference to the trier of fact.”
l_d. at 852. Our task is to determine only whether this testimony was sufficient evidence
from which the trial court could find that Defendant proximately caused Champ’s injuries,
and we find that it was. Points lll and IV denied.

Conclusion

The trial court did not violate Movant’s freedom from double jeopardy by
convicting Movant of two counts of second-degree assault where Movant caused injury to
two separate victims by one act. Additionally, there was sufficient evidence on the record
from which the trial court could find Movant guilty beyond a reasonable doubt of each

count of second-degree assault. We affirm.

 
   

Gar'y M.`Gadrtner, Jr,, Judge

 

James l\/l. Dowd, P. J., concurs.
Kur't S. Odenwald, J., concurs.

ll

 

