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September 20, 1993



Crow, Flanigan, Prewitt

The opinion of the court was delivered by: Crow

About 7:29 p.m., May 14, 1991, Defendant, Ray Lee Coates, was driving a 1985 Pontiac Sunbird station wagon north on County Road 222 in Benton County. Debra *fn1 Jean Turner, age 35, the only other occupant, was seated on the passenger side in front. Approximately a mile north of Warsaw, the vehicle crossed into the southbound (west) lane, left the road and overturned, killing Ms. Turner.

Defendant was charged with the class C felony of assault in the second degree, in violation of § 565.060, RSMo 1986. That section reads, in pertinent part:

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

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

A jury found Defendant guilty and assessed punishment at one year's imprisonment in jail. The trial court entered judgment per the verdict. Defendant appeals, presenting two claims of error: (1) the State failed to make a submissible case on the element of recklessness, and (2) the information stated no offense.

In addressing Defendant's first point, we view the evidence, together with all reasonable inferences to be drawn therefrom, in the light most favorable to the verdict, and disregard contrary evidence and inferences. State v. Feltrop, 803 S.W.2d 1, 11 (Mo. banc 1991), cert. denied, U.S. , 111 S.Ct. 2918, 115 L.Ed.2d 1081 (1991). Our function is not to weigh the evidence, but to determine whether there was sufficient evidence from which reasonable persons could have found Defendant guilty as charged. Feltrop, 803 S.W.2d at 11.

So viewed, the evidence shows there is a "four-way stop" at the intersection of Van Buren and Jackson Streets in Warsaw. Shortly before the fatal occurrence, Sharon Hoff, a friend of Ms. Turner, saw Defendant driving on Jackson Street, accompanied by Ms. Turner. Defendant drove through the Van Buren intersection without slowing down at the stop sign. Two or three minutes later, Ms. Hoff saw Defendant's vehicle going the opposite direction on Jackson. It turned right on Benton Street without slowing down or signaling, "threw gravel everywhere," and nearly hit a parked car.

At the intersection of Polk Street and Highway 7 in Warsaw there are stop signs for traffic each way on Polk. Constance Baker, who resides on Polk Street about a mile from the crash site, saw Defendant driving on Polk near her home. She testified: "The brakes slammed on. It skidded for a few feet and then it lunged forward." The speed limit on Polk is 25 miles per hour. According to Ms. Baker, Defendant was going "much faster" than 35. Defendant's vehicle went through the intersection at Highway 7 -- a "very busy highway" -- without slowing down at the stop sign. A few minutes later, Ms. Baker saw an ambulance go past her home. She followed it to the crash site and saw Defendant's vehicle there.

Jolene Grobe and her husband, Lynn, also reside on Polk Street in Warsaw. Ms. Turner lived nearby on Polk. Jolene heard an automobile "making a lot of noise" coming down Polk. The vehicle "came to a screeching halt." Jolene went to her front door and saw an automobile in Ms. Turner's driveway. Defendant was the driver. Jolene heard "a lot of loud talking, children crying."

Jolene testified, " zipped down the driveway and into the street." According to Jolene, Defendant's vehicle was swerving "all over the road." Jolene called to Defendant, "Slow that thing down or you're gonna have a wreck." Defendant replied with "a few choice words." Defendant "sped on up the street," across Highway 7 and out of sight. Jolene telephoned the sheriff's office.

Lynn Grobe overheard the verbal exchange between his wife and Defendant. Lynn got into his automobile and pursued Defendant north out of Warsaw. Arriving at the crash site, Lynn saw Defendant's automobile "upside down in the ditch." Shortly afterward, an ambulance and Trooper Leland Burnett of the Missouri State Highway Patrol arrived.

An emergency medical technician with the ambulance determined Ms. Turner was dead at the scene.

Trooper Burnett saw Defendant on the ground near the overturned automobile. Burnett noted Defendant "smelled of intoxicants like he'd been drinking." Defendant's eyes were "watery, blood-shot, appeared to be dilated." Asked about Defendant's speech, Burnett testified: "He was very excited. He was using profanity, yelling and then he'd get quieter and mumble to himself. . . . His speech was slurred." A "blood test" performed on a specimen drawn from Defendant at a hospital at 8:55 p.m., some 86 minutes after the crash, showed an "alcohol content" of .08 percent.

Burnett described the road where the crash occurred as a "rural, blacktop road." The surface was dry. The speed limit was 55 miles per hour. Burnett observed sand and gravel on the road "along the edge." ...

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