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State v. Gilbert

Court of Appeals of Missouri, Western District, Fourth Division

October 24, 2017

STATE OF MISSOURI, Respondent,
v.
SCOTT A. GILBERT, Appellant.

         APPEAL FROM THE CIRCUIT COURT OF PLATTE COUNTY, MISSOURI THE HONORABLE W. ANN HANSBROUGH, JUDGE

          Before: Mark D. Pfeiffer, Chief Judge, Gary D. Witt, Judge and Edward R. Ardini, Jr., Judge.

          EDWMD R. ARDINI, JR., JUDGE.

         Scott A. Gilbert ("Gilbert") appeals his convictions following a jury trial in the Circuit Court of Platte County. On appeal, he alleges that there was insufficient evidence to support his convictions for two counts for first-degree assault of a law enforcement officer and the associated armed criminal action counts (Points I through IV); that the jury's verdicts relating to two counts of first-degree assault of a law enforcement officer lacked unanimity (Points V and VI); and that the trial court abused its discretion in admitting certain testimony (Point VII). We affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         On May 10, 2013, Gilbert and two other inmates escaped from the Lansing Correctional Facility in Lansing, Kansas. Gilbert and one of the other escaped inmates stole a truck and drove to Platte City, Missouri. The truck had been reported stolen and was recognized by an officer at a stoplight in Platte City. The officer activated his emergency lights and attempted to pull the stolen truck over, but the escapees did not stop and instead fled on I-29. Other officers quickly joined the pursuit. Gilbert located a shotgun in the truck, leaned out of the passenger window, and pointed it at the pursuing officers. The truck exited I-29, driving through two counties on three different highways. Gilbert fired toward the four pursuing officers at five different locations along I-29 and Highways E and B, and the officers each testified that their vehicles had small chips or damage after the chase that they believed resulted from the gunshots. Gilbert and his accomplice eventually crossed into Clinton County, where they barricaded themselves into a house for more than six hours before surrendering to police.

         The jury found Gilbert guilty of four counts of first-degree assault of a law enforcement officer, four counts of armed criminal action, one count of first-degree tampering, and one count of resisting a lawful stop. The jury acquitted Gilbert of attempted kidnapping and an associated count of armed criminal action. Gilbert was sentenced to twenty-five years' imprisonment for each of the assault counts and seven years for the accompanying armed criminal action counts with all sentences to run consecutive to each other. Gilbert was also sentenced to six years on the tampering count and seven years for resisting arrest to run concurrent to each other and to the other sentences. Gilbert timely appealed. Additional facts are set forth throughout this opinion as necessary.

         DISCUSSION

         I. SUFFICIENCY OF THE EVIDENCE

         Gilbert first alleges that there was not sufficient evidence to support two of his convictions for assault of a law enforcement officer (Points I and III) and the associated armed criminal action charges (Points II and IV). Specifically, he argues that the evidence did not support a conclusion that he purposely shot at Deputy Mears (Point I) and purposely shot at Deputy Smith (Point III) because they were at different times second and third in the line of police vehicles pursuing Gilbert. He claims the lone reasonable inference from the evidence is that he purposely shot at Sergeant Tharp and Deputy Macey, who were in the lead vehicle position at different times during the pursuit.

         Our review is limited to determining "whether sufficient evidence was presented at trial from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt of all the essential elements of the crime." State v. McAllister, 399 S.W.3d 518 (Mo. App. E.D. 2013) (citation omitted). All evidence and favorable inferences therefrom that support the jury's verdict are accepted as true, and contrary evidence and negative inferences are disregarded. Id. (citation omitted).

         "A person commits the crime of assault of a law enforcement officer . . . in the first degree if such person attempts to kill or knowingly causes or attempts to cause serious physical injury to a law enforcement officer . . ." § 565.081.1.[1] "It is well settled that a person attempts to commit an offense when, with the purpose of committing the offense, he does any act which is a substantial step towards commission of the offense." Bryant v. State, 316 S.W.3d 503, 509 (Mo. App. E.D. 2010) (citations omitted). Although the "defendant [must] act purposefully as to the person defendant is charged with assaulting[, ]"[2] it is not required that the defendant "specifically decide[] to injure each particular person who was in fact threatened with injury." State v. Whalen, 49 S.W.3d 181, 186-87 (Mo. banc 2001), overruled in part on other grounds by State v. Claycomb, 470 S.W.3d 358, 362 (Mo. banc 2015);[3] cf. McAllister, 399 S.W.3d at 522 (holding that evidence was sufficient to support two counts of assault of a law enforcement officer where defendant alleged it was only reasonable to infer that he shot at the driver and not the passenger). Rather, "a person will be guilty of purposely causing or attempting to cause serious physical injury to another if the person consciously engages in conduct that causes such injury or it is his conscious object to cause such injury." Id. at 187; see also McAllister, 399 S.W.3d at 521.

         "Specific intent is generally shown through circumstantial evidence" and "may be inferred from surrounding facts, such as the type of weapon used, the manner and circumstances under which it was used, and other relevant factors[, ]" including the defendant's conduct before, during, and after the act. McAllister, 399 S.W.3d at 522 (citations omitted); State v. Reed, 402 S.W.3d 146, 151 (Mo. App. W.D. 2013). "Intentionally discharging a weapon in the proximity of a police officer is illustrative of a decision to take a substantial step toward injuring the law enforcement officer." McAllister, 399 S.W.3d at 522; cf. State v. Curtis, 497 S.W.3d 381, 384 (Mo. App. E.D. 2016) (holding that evidence was sufficient to find that defendant acted with purpose to kill or cause victims serious bodily injury where victims were in defendant's line of sight and line of fire). Fleeing also supports a "showing of intent to assault an officer under section 565.081." Reed, 402 S.W.3d at 151.

         Here, Gilbert shot at Deputy Smith at two different locations along Highway E. Deputy Smith's vehicle was struck by gunfire near Dick's Creek Road after Deputy Macey, the lead vehicle, swerved out of the line of fire. Similarly, Deputy Mears's vehicle was struck by gunfire near Malcolm Lake Road on B Highway after he had moved from fourth to third position and the two vehicles in front of him swerved out of the way. It is reasonable to infer from the evidence presented at trial, including the testimony of the officers and the dashcam videos, that Gilbert was aware of the pursuing officers' vehicles, that he consciously engaged in the conduct of shooting the weapon, and that his purpose was to cause serious physical injury to the officers pursuing him. See Whalen, 49 S.W.3d at 187. Even if Gilbert was aiming for the officer in the lead vehicle as he alleges, he was aware that he was firing toward the line of vehicles pursuing him. Cf. McAllister, 399 S.W.3d at 522 ("Even if . . . [the defendant] fired only one shot, he was aware he was firing at the driver of a vehicle carrying two people."). By intentionally firing a shotgun in the direction of these officers, Gilbert took a substantial step toward injuring them. See id. These shots "create[d] a high likelihood" that any of the pursuing officers would be injured or killed, and it was not required that he "specifically decided to injure each particular person who was . . . threatened with injury." Whalen, 49 S.W.3d at 186-87; cf. McAllister, 399 S.W.3d at 522 ("Common sense dictates that firing a bullet at the driver of a vehicle on a highway creates a high likelihood that both people inside the vehicle will be injured or killed."). Moreover, the jury could reasonably infer that Gilbert had a motive to shoot at all of the pursuing officers in order to avoid capture and being returned to the correctional facility. See State v. Depriest, 822 S.W.2d 488, 491 (Mo. App. S.D. 1991), overruled on other grounds by State v. Carson, 941 S.W.2d 518 (Mo. banc 1997) (noting that "[t]he jury could reasonably infer [the d]efendant ran to avoid arrest, and his motive to shoot [the officer] was to avoid a return to prison").

         The evidence was sufficient to support both convictions of assault of a law enforcement officer and the associated armed criminal action charges[4] relating to Deputies Smith and Mears, and the trial court did not err in entering ...


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