Court of Appeals of Missouri, Western District, Fourth Division
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.
R. ARDINI, JR., JUDGE.
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.
AND PROCEDURAL BACKGROUND
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.
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
SUFFICIENCY OF THE EVIDENCE
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.
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).
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. "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[, ]" 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); 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.
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.
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
evidence was sufficient to support both convictions of
assault of a law enforcement officer and the associated armed
criminal action charges relating to Deputies Smith and Mears,
and the trial court did not err in entering ...