Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF TEXAS COUNTY Honorable William E.
Hickle, Circuit Judge
JEFFREY W. BATES, JUDGE.
Brittain (Defendant) was found guilty in a court-tried case
of the class D felony of first-degree property damage and the
unclassified felony of armed criminal action (ACA).
See §§ 569.100, 571.015. Defendant
challenges only his ACA conviction. He contends the trial
court erred in overruling Defendant's motion for judgment
of acquittal on the ACA charge because the State presented
insufficient evidence that he committed first-degree property
damage by means of a "dangerous instrument."
See § 556.061(9). He argues that the metal pipe
he used to damage property was not a dangerous instrument
because, "under the circumstances in which it was [used,
]" it was not "readily capable of causing death or
other serious physical injury." We disagree and affirm.
court-tried criminal case, the judge's findings have the
force and effect of a jury verdict. Rule 27.01(b); State
v. Crawford, 68 S.W.3d 406, 408 (Mo. banc 2002).
Therefore, the standard used to review the sufficiency of the
evidence in a court-tried and a jury-tried criminal case is
the same. State v. Lauer, 955 S.W.2d 23, 24-25 (Mo.
App. 1997). Appellate review is limited to determining
whether there was sufficient evidence from which the
fact-finder could have reasonably found the defendant guilty
beyond a reasonable doubt. Crawford, 68 S.W.3d at
408. In reviewing the evidence, we accept as true all
evidence and inferences favorable to the State; all contrary
evidence and inferences are disregarded. Crawford,
68 S.W.3d at 407-08. So viewed, the following evidence was
adduced at trial.
November 1, 2015, Michael Hoth (Victim) drove his
girlfriend's 2003 Chevrolet truck (the Chevrolet) to the
home of Betty Cooper (Cooper). Victim parked the Chevrolet
and went inside. Defendant and a passenger, Shawn Sharp
(Sharp), were driving in the area when they saw the
Chevrolet, which they knew Victim drove. Defendant parked
next to the Chevrolet, and he and Sharp jumped out of their
could see Defendant and Sharp through an open door and heard
them call for him to come outside. When he did so, Defendant
and Sharp started yelling at Victim, cursing and threatening
him. According to Victim, Defendant "yelled my name and
said he was going to F me up." About that same time,
Defendant and Sharp each picked up a four-foot metal pipe out
of the back of Defendant's truck and came after Victim.
Victim said he was "scared for [his] life" and ran
to the back of Cooper's house, where he continued to
observe the two men from about 12 feet away. Defendant and
Sharp then proceeded to beat the Chevrolet with their pipes.
Victim testified that "[t]hey started beating my truck
because they couldn't come after me." Sharp
similarly testified that he was mad at Victim, "wanting
to fight him and stuff" and "kind of took it out on
his truck." Cooper heard "a lot of screaming and
yelling and threatening to kill somebody" and described
Defendant as "the one that was doing the most - he was
the loudest." She called 9-1-1. When Defendant and Sharp
heard that the police had been called, they quickly left the
second amended information, Defendant was charged with
first-degree property damage (Count 1) and ACA (Count 2).
With respect to the ACA charge, the information alleged that
Defendant committed the felony of first-degree property
damage "by, with and through, the knowing use,
assistance and aid of a club, a dangerous instrument."
The court found Defendant guilty of both
counts. Defendant filed a post-trial motion for
acquittal, challenging the sufficiency of the evidence to
support either conviction. The court overruled the motion.
the sentencing hearing, defense counsel asked the court to
reconsider its finding of guilt on the ACA charge. Counsel
argued that there had never been a single Missouri case in
which a property offense was the predicate felony for an ACA
conviction. The court was unpersuaded and imposed sentences
on both the first-degree property damage and ACA convictions.
This appeal followed.
contends the evidence was insufficient to support his ACA
conviction. We begin our analysis by examining the text of
§ 571.015. It states that "any person who commits
any felony under the laws of this state by, with or
through the use, assistance, or aid of a dangerous
instrument or deadly weapon is also guilty of the crime
of [ACA.]" Id. (emphasis added). The only
exceptions to this broad "any felony" language are
the few enumerated crimes listed in § 571.015.4, none of
which are applicable here. Id.; see State v.
Jones, 479 S.W.3d 100, 108 (Mo. banc 2016) (in addition
to "'use' … the words
'assistance' and 'aid' broaden the reach of
the armed criminal action statute to any crime committed with
the help of a weapon"); State v. Smith, 242
S.W.3d 735, 742 (Mo. App. 2007) ("[b]ecause virtually
any felony can serve as the predicate offense, there are
innumerable alternative methods by which ACA can be
appeal, Defendant concedes that: (1) the "any
felony" language used in § 571.015 is broad enough
to include first-degree property damage as a predicate felony
for ACA; and (2) he committed that felony. Defendant argues,
however, that the evidence was insufficient to support the
finding that he used a "dangerous instrument" as
defined by statute. A "dangerous instrument" means
"any instrument, article or substance, which, under
the circumstances in which it is used, is readily
capable of causing death or other serious physical
injury[.]" § 556.061(9) (emphasis added); see
also State v. Williams, 126 S.W.3d 377, 384-85 (Mo. banc
2004) (§ 556.061(9) "does not require that the
defendant have the subjective intent to use the object with
an intent to cause death or serious physical injury";
the statute "requires only that the defendant knows he
is using the instrument under circumstances that are
'readily capable of causing death or serious physical
injury'"). The key consideration is whether the
metal pipe in this case was readily capable of causing death
or serious physical injury "under the circumstances in
which it was used." State v. Rousselo, 386
S.W.3d 919, 924 (Mo. App. 2012); see also State v.
Johnson, 182 S.W.3d 667, 672 (Mo. App. 2005).
argues that under the circumstances in which the metal pipe
was used, it was not a dangerous instrument because: (1)
Defendant used the pipe to damage only the Chevrolet; and (2)
Victim was at least 12 feet away. Based on this premise,
Defendant claims the evidence that Victim "was scared
and felt threatened" and that Defendant "was
yelling and cursing while hitting the [Chevrolet, ]" did
not establish beyond a reasonable doubt that Defendant used
the pipe "under circumstances in which it was readily
capable of causing death or other serious physical
injury." To support this argument, Defendant relies upon
State v. Baumann, 217 S.W.3d 914 (Mo. App. 2007).
Baumann, a post office employee was sitting in her
vehicle at 1:00 a.m. when she observed the defendant, a
former employee who had been fired, enter the parking lot
wearing gloves and a mask. Id. at 916. The witness
saw the defendant squat down next to another employee's
parked van and appear to puncture its tires with a knife.
Id. The defendant was convicted of first-degree
tampering with a motor vehicle and ACA. Id. at 915.
This Court reversed the defendant's conviction of ACA
because: "[t]he record reveals [the defendant] was alone
in an empty parking lot in the middle of the night. There was
no one else present against whom the knife could be
'capable of causing death or other serious physical
injury ….'" Id. at 919. The only
person who observed the event was the witness, who did so
from "the safety of her vehicle some distance away"
and there was "no evidence that [the defendant] was
aware of her presence until after she phoned 911[.]"
Id. at 919 n.6. The reversal of the ACA conviction
was based upon the very unusual circumstances of how the
predicate felony was committed:
The present situation is particularly fact specific.
Tampering with a motor vehicle is a property crime which can
be committed without the presence or involvement of another
person. As already related, the key consideration in
determining whether an object is a dangerous instrument is
whether it can kill or seriously injure under the
circumstances in which it is used[.] Given the particular
facts at issue there was but a remote possibility that any
other individual could have been injured by [the
defendant's] use of the dangerous instrument. As such,
there was insufficient evidence from which a reasonable juror
might have found the defendant guilty beyond a reasonable
doubt … of the crime of armed criminal action.
Id. at 919 (internal quotation marks, brackets and
citations omitted). For the following reasons,
Defendant's reliance on ...