STATE OF MISSOURI, Plaintiff-Respondent v. JASON SCOTT WARREN

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.”
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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
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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.
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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
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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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