reversing two of defendant’s three convictions of first-degree assault where three officers approached defendant, defendant fired at first officer, but evidence failed to establish defendant was aware of other officers’ presence such that he purposely engaged in conduct he was aware would cause them serious physical injury
How later courts described this case
- reversing two of defendant’s three convictions of first-degree assault where three officers approached defendant, defendant fired at first officer, but evidence failed to establish defendant was aware of other officers’ presence such that he purposely engaged in conduct he was aware would cause them serious physical injury
- reasoning that Mr. Whalen’s discharge of a firearm in his home “permitted the jury to find that he acted in conscious disregard of a substantial risk of injury to others.”
- this Court may not supply missing evidence or give the State the benefit of unreasonable, speculative or forced inferences
- overruled in part on other grounds by State v. Claycomb, 470 S.W.3d 358, 362 (Mo.banc 2015)
Written by the judges who cited it.
Later courts went against this
Overruled in part, on other grounds by State of Missouri v. Christopher C. Claycomb, 2015 Mo. LEXIS 102 (2015)
49 S.W.3d 181, 186 (Mo. banc 2001), overruled in part on other grounds by Claycomb, 470 S.W.3d at 362
The opinion
PRICE, Judge,
concurring in part and dissenting in part.
I concur in the affirmance of the assault conviction and corresponding armed criminal action conviction with respect to officer Cummines. I dissent as to the reversal of the convictions relating to officers Taylor and Edler.
With respect to officers Taylor and Edler, the jury was required to determine if Whalen acted purposefully in attempting to kill or cause serious physical injury to them. The majority holds that the evidence was insufficient for the jury to find that Whalen was aware of the presence of Taylor and Edler in the home. On a challenge to the sufficiency of the evidence, this Court is bound to review “all evidence and inferences drawn therefrom in the light most favorable to the verdict, and [disregard] all contrary inferences.” State v. Knese, 985 S.W.2d 759, 769 (Mo. banc 1999). In accordance with this standard of review, I believe the judgment based upon the jury’s verdict should be affirmed.
The evidence showed that the officers spent several minutes in the home’s living room, discussing how to handle the situation, prior to approaching the bedroom where Whalen was located. It also showed that the officers in the living room could hear Whalen talking and yelling in the bedroom. If they could hear Whalen, it could be inferred that he could hear them. This inference is reinforced by evidence that Whalen shouted various demands to the officers in the living room. Whalen would not have done this had he not heard the officers.
Also, at the time Whalen shot Cum-mines, Cummines was standing in the center of the doorway. Taylor and Edler were close enough to Cummines to feel a flash of hot air from the discharge of Whalen’s shotgun. Taylor testified that the hallway in which the officers were standing was lit. Edler testified that the bedroom was lit. From this evidence, the jury could reasonably have inferred that Taylor and Edler, standing near Cum-mines in the confined space of a lit hallway, were visible to Whalen when he fired his shotgun.
Finally, the evidence showed that just before Cummines was shot he stopped in the doorway of the bedroom and put his hand up to signal Edler and Taylor to stop. This would have communicated the presence of the other officers to Whalen. Whalen himself did not testify. There was no direct evidence what Whalen saw. Although the majority states that there was “no evidence” that Whalen saw or could see this gesture, this is merely drawing an inference contrary to the jury’s verdict. It was not only permissible, but even more it was reasonable, for the jury to infer that Whalen, who was able to see Cummines standing in the doorway well enough to shoot him, could also have seen Cummines make this gesture to the other officers.
Simply put, viewed in the light most favorable to the verdict, and disregarding all contrary inferences, the evidence presented was sufficient for the jury to reasonably find, as it did, that Whalen was aware of officers Taylor and Edler and that it was his conscious object to attempt to kill or cause serious physical injury to all the victims when he discharged his shotgun into the hallway.
I would affirm the judgment of the trial court.