State v. Palmer

CROW, Judge,

concurring.

I concur.

Perhaps there is a reason the prosecutor elected to charge defendant with leaving the scene of an accident knowing an injury had been earned to a person instead of leaving the scene of an accident knowing damage had been caused to property. However, no such reason is apparent from the record.

I agree with the principal opinion’s analysis that the evidence would have likely supported a guilty verdict had the latter charge been filed. Why the prosecutor chose to undertake the burden of proving defendant knew an injury had been caused to a person — an impossible task on the evidence here — defies explanation. While there are instances where it is possible to carry that burden of proof, State v. Seeger, 725 S.W.2d 39 (Mo.App.1986), the evidence was patently insufficient here.

Even if defendant’s testimony is rejected as incredible (as was the jury’s prerogative), State v. Jackson, 608 S.W.2d 420, 421[1] (Mo.1980), that does not aid the State. Assuming the evidence was sufficient to support a finding that defendant knew his vehicle had collided with Ms. Wilcox’s vehicle instead of a deer, 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 Wilcox vehicle could not escape injury.

On this record, defendant was charged with an unprovable crime. Reversal is mandatory.