State v. Lynch ( 1990 )

CRIST, Judge.

Defendant appeals his convictions for first degree assault and armed criminal action claiming there was insufficient evidence the victim sustained a “serious physical injury.” We affirm.

On February 27, 1988, defendant and an accomplice planned to rob Favazza’s Restaurant. Defendant was a former employee of Favazza’s. He and accomplice waited outside the restaurant near closing time. Accomplice possessed a pistol; defendant wore a stocking mask and carried a shotgun.

Several restaurant employees had gathered in a parking lot to talk and drink beer as they left work. They noticed two people skulking around and went to investigate. Much to their chagrin, they were greeted by defendant and his shotgun and told to lay on the ground. They did.

Meanwhile, victim, a Favazza’s employee, returned to the parking lot with more liquor. He was told several employees had gone to investigate two suspicious characters and had not returned. Victim set off to join the investigation. He too was greeted by defendant and his shotgun. Victim recognized defendant’s voice and build. Defendant ordered victim to “lay down or I’ll kill you.” Victim opted to run. Accomplice told defendant to “blow him away.” He did. Victim was shot in the back, fell down, got up, ran and jumped into the back of a friend’s pickup truck. He was then taken to the hospital. Meanwhile, defendant and accomplice fled.

Defendant claims there was insufficient evidence victim sustained a “serious physical injury” as required for a first degree assault conviction under § 565.050.1, RSMo 1986. A “serious physical injury” is defined as a “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.” § 565.002(6), RSMo 1986.

The testimony at trial indicated that hundreds of shotgun pellets were found in victim’s back, buttocks, arm and wrist. He suffered numbness and paresthesia in his hand. He was operated on the day after the shooting. Fifteen pellets were removed. Victim was hospitalized for one week. At the time of trial, victim was scarred and still had pellets in his back.

Viewing the evidence favorably to the State, it was sufficient to support the jury’s finding that a “serious physical injury” occurred. State v. Simmons, 751 S.W.2d 85, 89[1] (Mo.App.1988); State v. Quinn, 717 S.W.2d 262, 264-65[l] (Mo.App.1986).

Judgment affirmed.

GARY M. GAERTNER, P.J., and REINHARD, J., concur.