Court of Appeals of Missouri, Western District, First Division
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Appeal from the Circuit Court of Platte County, Missouri. The Honorable Abe Shafer IV, Judge.
For Respondent: Jennifer Rodewald, Jefferson City, MO.
For Appellant: James Wyrsch, Kansas City, MO.
Before Division One: Thomas H. Newton, P.J., Lisa White Hardwick, Anthony Rex Gabbert, JJ. All concur.
Bradley Ise appeals from a judgment entered upon a jury verdict convicting him of two counts of first-degree property damage, one count of second-degree assault, one count of leaving the scene of a motor vehicle accident, and one count of driving while revoked. He was charged as and found to be a prior and persistent offender. He asserts ten points on appeal. First, he contends that the circuit court erred by overruling his motion for judgment of acquittal because the evidence adduced at trial was legally insufficient to prove guilt beyond a reasonable doubt of any charged offense. Second, Ise contends that the circuit court erred by denying his motion to dismiss because the State suppressed, to his prejudice, the recording of a 911 call to the Missouri State Highway Patrol placed by the State's witness Kenny Searcy. Third, Ise claims that the court erred to his prejudice by denying his motion in limine and admitting in evidence the recordings of telephone calls to the Platte County Dispatcher. Fourth, Ise contends that the court erred in overruling his objection to the photographic lineup procedure used in this case and the identification of him at trial by Jordan Infranca. Fifth, Ise charges that the court plainly erred by failing to instruct the jury on the issue of eyewitness identification. Sixth, Ise alleges that the court erred by admitting into evidence, to his prejudice, the prior testimony of Sergeant Kelley given at a probation revocation proceeding in the State of Kansas. Seventh, Ise alleges that the court erred by improperly bolstering the credibility of the State's witness, Jordan Infranca. Eighth, Ise contends that the court plainly erred by failing to instruct under Count II on the lesser offense of property damage in the second degree and to instruct under Count III on the lesser included offense of assault in the third degree. Ninth, Ise claims that the court plainly erred by failing to instruct the jury with regard to the definitions of " knowingly," " purposely," and " physical injury." Finally, Ise contends that the court erred by sentencing him to consecutive sentences totaling 20 years imprisonment. We affirm.
In the light most favorable to the verdicts, the evidence at trial was that on July 22, 2010, Michael Payne was driving northbound on I-635 in his red Impala when he observed a black Chrysler 300 driving erratically, weaving in and out of traffic and cutting other cars off. He observed the Chrysler 300 and a white car " jockeying positions," and " engaged in a conflict" as evidenced by hand gestures and motions. Payne observed the cars speed up, slow down, and brake check each other. Payne testified that he did not want to stay beside the Chrysler 300 so he got in front and was attempting to make out the driver in his rear view mirror when he was struck from behind by the Chrysler. He described the driver as a white male with a beard and sunglasses. After being struck, Payne pulled over to the side of the road but the Chrysler did not stop. Payne then got back on the road in an attempt to obtain the license plate number of the Chrysler 300. He also called 911 for help. He testified that just before he reached the I-635/I-29 merge, he saw the black Chrysler 300 on the side of the highway. He then observed the Chrysler cut across four lanes of traffic and merge onto I-29. Payne testified: " As soon as we got to where we could merge into the right-hand lanes, the black car darted out and the next thing I'd seen was tire smoke, brake lights, and he'd already struck the other vehicle." Payne observed the white car in
the highway median against a concrete retaining wall.
Payne testified that he received a repair estimate of $8,000 to fix the damage that the black Chrysler 300 caused to his red Impala. In a photographic line-up, Payne accurately identified Ise as the driver of the black Chrysler 300, but at the time of the identification indicated that he was only 10% certain of its accuracy.
Jordan Infranca testified that on July 22, 2010, he was driving northbound on I-635 when he observed a red Impala and a black Chrysler 300 pass him going at a high rate of speed. He testified that the Chrysler 300 appeared to be pursuing the red Impala and that the cars were driving recklessly and erratically. Infranca testified that when the Chrysler passed him, the driver looked over at him and Infranca looked at the driver. He testified that the driver was well-groomed and professional looking, with his hair slicked back and he wore a mustache and goatee. Infranca testified that he then observed the Chrysler get behind the red Impala and " ram" the rear driver's side of the red Impala. Infranca called 911. He testified that he followed the black Chrysler in an attempt to obtain details for the police because the black car appeared to be the " aggressor." Infranca testified that " when the red Impala went northbound on I-29, the black Chrysler crossed all three lanes of traffic, getting into the far left-hand lane and went after the red Impala again over the I-29 northbound overpass." Infranca testified that he then lost sight of the two cars when Infranca got onto I-29 northbound. Soon thereafter, Infranca observed a white Ford Fusion on the highway railing. Infranca provided his contact information to officers who arrived at the scene.
On or about August 5, 2010, Sergeant Kelley of the Missouri Highway Patrol met with Infranca. Infranca testified that Kelley presented a photographic line-up that included six photographs and advised Infranca that the line-up may or may not contain the person involved in the incident Infranca had observed. Kelley left the room. Infranca then identified photo number four as the person he believed to be the driver of the black Chrysler 300. Infranca circled photograph number four and signed his name. When Kelley returned, he observed that Infranca had circled photograph number four and asked Infranca if he would like to see a current photograph of the individual in photograph number four. Infranca indicated that he did and testified that when he saw the current photograph he was 100% sure that that was the person he observed driving the black Chrysler 300 on July 22, 2010. Infranca also identified Ise in the courtroom, on the day of Ise's trial, as the individual he had observed driving the Chrysler 300. Infranca testified that he was unable to identify Ise in a previous hearing, held in July of 2011, because the person that he observed at that hearing was more overweight in the facial area and had more facial hair than he recalled seeing the previous year at the time of the incident.
Skylar Braun, the driver of the white Ford Fusion, testified at Ise's trial. He testified that on July 22, 2010, he was on his way home from work when he " noticed a black car driving crazily, like he was in a hurry to get somewhere." Braun testified that the black car was swerving in and out of traffic. Braun stated that he and the driver of the black car " got into a little road rage. I mouthed off something to him and flipped him off." Braun testified that the driver of the black car did the same back. Braun testified that he observed the black car hit, or rear-end, a " purplish Impala." Braun testified that he observed the black car cut across traffic to
chase Braun. He testified that the black car then hit the passenger rear quarter panel of Braun's car causing Braun to spin into the median. Braun testified that the impact caused his car to slide down the median and his bumper and fender fell off and his two rear wheels popped. Braun testified that his vehicle was a 2009 Ford Fusion that he had purchased new for $25,000. He testified that it was worth approximately $24,000 at the time of the collision and had approximately 23,000 miles on it. Braun testified that, after the collision, his car was worth at least $1,000 less than prior to the collision.
Julie Williams also testified at Ise's trial. She testified that in July of 2010 she owned a 2006 black Chrysler 300. She testified that shortly before July 22, 2010, she asked Ise if she could borrow Ise's Cadillac Escalade because she was in the process of moving and she needed a larger vehicle than her own to move her belongings. She testified that they agreed to " swap cars" until she completed her move. Sometime after the swap, she received a telephone call from Sergeant Kelley. She testified that Kelley asked her if she was aware that her car had been involved in two hit and run accidents. She advised Kelley that Bradley Ise had her vehicle.
Greg Hester, President of Performance Auto Body in Armourdale, also testified at Ise's trial. He testified that Ise appeared at Performance Auto Body in July or August of 2010. He testified that Ise brought in a Chrysler 300 that needed grille, header panel, hood, and fender repair. Ise's mother paid a $400 deposit to fix the damage that totaled $1,122.
The jury found Ise guilty under counts one and two of property damage in the first degree, guilty under count three of assault in the second degree, guilty under count four of the class D felony of leaving the scene of a motor vehicle accident, and guilty under count five of driving while revoked. As to count four, the court sustained Ise's post-trial motion by reducing the charge from a felony to a misdemeanor. Ise was sentenced to a total of 20 years with each sentence to run consecutive to one another and to a sentence he had received in Kansas, but concurrent to two other Platte County sentences. Ise appeals.
Point I: Evidentiary Sufficiency
In his first point on appeal, Ise contends that the circuit court erred by overruling his motion for judgment of acquittal because the evidence adduced at trial was legally insufficient to prove guilt beyond a reasonable doubt of any charged offense. Ise contends that there was no proof that he knowingly caused property damage exceeding $750.00 on counts one and two, acted with the purpose of causing injury to Skyler Braun on count three, or that he was aware that his privilege to drive a motor vehicle had been revoked on count five.
Our review is " 'is limited to a determination of whether there was sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt.'" State v. Jones, 427 S.W.3d 191, 197 (Mo. banc 2014) (quoting State v. Moore, 303 S.W.3d 515, 519 (Mo. banc 2010)). We accept as true all evidence and reasonable inferences that support the convictions, ignore all evidence and inferences to the contrary, and do not reweigh the evidence. Id. We view the evidence in the light most favorable to the guilty verdict. Id. at 199. We afford great deference to the jury's verdict and will not act as a " super juror." Id. at 198.
First, Ise contends that the evidence was insufficient to prove that he was the driver of the black Chrysler 300 that
was involved in the July 22, 2010, crimes. This claim has no merit. Two separate witnesses identified Ise in photographic line-ups as the driver of the black Chrysler 300, and identified Ise in the courtroom as well. Further, the evidence reflects that shortly before July 22, 2010, Julie Williams loaned her black Chrysler 300 to Ise in exchange for using his vehicle to move with. Williams's car had no damage at the time she loaned the vehicle to Ise. Ise appeared at Performance Auto Body in Armourdale in July or August of 2010 with a damaged black Chrysler 300. Ise's mother placed a $400 deposit toward the repair bill. We find sufficient evidence from which a reasonable juror might have found, beyond a reasonable doubt, that Ise was the driver of the Chrysler 300 that was involved in the charged crimes.
Second, Ise contends that there was insufficient evidence to support in Counts I and II that Ise knowingly caused property damage or that he knowingly caused damage more than $750.00. In Count I, Ise was charged with knowingly damaging Michael Payne's vehicle, the red Impala, by striking the vehicle in the rear while both vehicles were driving on the interstate and causing damage in excess of $750.00. Jordan Infranca, an eyewitness to the collision who described Ise as the " aggressor" who was pursuing the red Impala, testified that he observed Ise " ram" the rear driver's side of the red Impala. Payne testified that he received a repair estimate of $8,000 to fix the damage to his red Impala caused by the black Chrysler 300 striking it.
Pursuant to Section 562.016.3(2), RSMo 2000, a person acts knowingly " [w]ith respect to a result of his conduct when he is aware that his conduct is practically certain to cause that result." Knowledge " is rarely susceptible to direct proof" and " may be proved by indirect evidence and inferences reasonably drawn from circumstances surrounding the incident." Schlax v. State, 419 S.W.3d 906, 910 (Mo. App. 2014) (internal quotations and citations omitted).
We find that any reasonable person would be aware that " ramming" another vehicle while traveling on an interstate highway is practically certain to cause damage to the opposing vehicle. Consequently, we find more than sufficient evidence in the record from which a reasonable juror might have concluded, beyond a reasonable doubt, that Ise knowingly caused damage to Payne's property and that the damage exceeded $750.00.
In Count II, Ise was charged with knowingly damaging the vehicle driven by Skyler Braun by driving into Braun's vehicle while traveling on the interstate and causing damage in excess of $750.00. Braun testified that, while Braun was driving on the interstate he was chased by a black car, the driver of which was later identified as Ise, and Braun's car was stuck in the passenger rear quarter panel by the black car which caused Braun's car to spin into the median. Braun testified that his car slid down the median and his bumper and fender fell off and his two rear wheels popped. Braun testified that his vehicle was a 2009 Ford Fusion that he had purchased new for $25,000. He testified that it was worth approximately $24,000 at the time of the collision and had approximately 23,000 miles on it. Braun testified that, after the collision, his car was worth at least $1,000 less than prior to the collision. Upon review of the record, we find more than sufficient evidence from which a reasonable juror might have concluded, beyond
a reasonable doubt, that Ise knowingly caused damage to Braun's property and that the damage exceeded $750.00.
Third, Ise contends that there was insufficient evidence to prove in Count III that he acted with the purpose of causing physical injury to Skyler Braun to warrant conviction for second degree assault. We disagree. Ise was charged in Count III, pursuant to Section 565.060, RSMo Cum. Supp. 2014, with attempting to cause physical injury to Skyler Braun by means of a dangerous instrument by driving his ...