Court of Appeals of Missouri, Eastern District, Fifth Division
Appeal from the Circuit Court of the City of St. Louis. Honorable John J. Riley.
For Plaintiff/Respondent: Daniel N. McPherson, Jefferson City, MO.
For Defendant/Appellant: John R. Fenley, St. Louis, MO.
Sherri B. Sullivan, J. Angela T. Quigless, C.J., and Mary K. Hoff, J., concur.
Sherri B. Sullivan, J.
Andrew Johnson (Appellant) appeals from the trial court's judgment convicting him of first-degree assault, armed criminal action, and unlawful use of a weapon. We affirm Appellant's conviction and sentence, but remand for correction of judgment nunc pro tunc.
Factual and Procedural Background
On July 27, 2011, Appellant was charged with first-degree assault (Count I), armed criminal action related to the first-degree assault charge (Count II), unlawful use of a weapon (Count III), and leaving the scene of a shooting (Count IV). The evidence in the light most favorable to the verdict is as follows.
On June 15, 2011, Guy Atchison (Atchison), a driver for Countrywide Asset and Auto Recovery (Countrywide), was assigned to repossess a car belonging to Appellant's daughter, Susie Lothridge (Lothridge). Atchison drove his tow truck to Lothridge's home and located the car in the gated parking lot of the building in which Lothridge resided. Atchison was not permitted to enter gated parking lots to repossess vehicles. As Atchison was filing a report indicating that another attempt to retrieve the car should be made later, he saw Lothridge get into the car and drive out of the parking lot. The street was barricaded at one end, leaving only one way for ingress and egress.
Atchison pulled his truck into the street, blocking Lothridge's path. Atchison exited his truck, approached Lothridge's vehicle and told her that he had an order to repossess her vehicle. Lothridge responded, " Well, you're not repossessing my vehicle today." Atchison told Lothridge he was going to call the police. Atchison returned to his truck and called both his supervisor and the police. Lothridge drove back into the parking lot. Atchison backed his truck out of the street and waited for the police to arrive.
Lothridge, a police officer, called her father, Appellant, telling him that a man was blocking her in and preventing her from going to work. Appellant arrived in his vehicle approximately five minutes later, pulled into the parking lot, and instructed Lothridge to follow him out of the lot. Lothridge did not tell Appellant that Atchison was attempting to repossess her vehicle and explained at trial that she called Appellant instead of the police because
" I knew that my dad was the type of dad that would come down and settle any monetary thing that I had going on with this...car."
When Appellant drove out of the parking lot followed by Lothridge, Atchison pulled his truck into the street, blocking both cars from leaving. Lothridge and Appellant exited their vehicles and Appellant approached the tow truck. As Atchison started to roll down his window to talk to Appellant, Appellant grabbed the tow truck's door handle and tried to open the door. The truck was locked and Appellant's hand slipped off. Appellant lifted his shirt, revealing the handle of a gun tucked into his waistband. Atchison put the truck into drive and, as he pushed on the accelerator, he heard a gunshot and felt a burning sensation in his back. Atchison heard more shots as he drove off. Atchison hit a curb and went airborne before hitting a pillar and a parked car and colliding with an ambulance.
Atchison and the ambulance driver both jumped out of their vehicles. Once Atchison explained to the driver that he had been shot, the paramedics placed him in the ambulance and took him to the hospital. Atchison had surgery to extract the bullet and later underwent physical therapy. At the time of trial, Atchison continued to have physical issues from a muscle torn as a result of the shooting.
Appellant returned home after the shooting. When police arrived at the scene, Lothridge gave them Appellant's address. Officers were dispatched to Appellant's apartment, where they recovered a loaded revolver and three shell casings from the kitchen trash. Appellant told police he fired at Atchison because Atchison had pointed a black semi-automatic handgun up in the air. Police searched the ambulance, the scene, and the tow truck, but never located a weapon. No gun was recovered from Atchison by the hospital staff.
The tow truck had three gunshot holes in the driver's side window and door area. The driver's side window was shattered and one bullet went through the metal and into the cab of the truck.
At trial, Appellant testified when he approached Atchison in the tow truck, Atchison's window was down and Atchison was pointing a gun at Appellant. Appellant testified he was afraid and felt he was in danger so he pulled his weapon and shot at Atchison three times while running toward the back of the truck.
The jury found Appellant guilty of first-degree assault (Count I); armed criminal action (Count II); and unlawful use of a weapon for carrying a concealed firearm (Count III), and acquitted Appellant on the charge of leaving the scene of a shooting (Count IV).
On January 31, 2014, the trial court orally pronounced its order, judgment, and sentence, imposing ten years' imprisonment, suspended execution of sentence with five years' probation, for the first-degree assault conviction; three years' imprisonment on the armed criminal action conviction; and suspended imposition of sentence with five years' probation on the unlawful use of a weapon conviction. On the same day, the court entered a written judgment accurately reflecting its oral pronouncement of sentence on the armed criminal action and unlawful use of a weapon convictions but inaccurately indicating Appellant's ...