SHERRI B. SULLIVAN, P.J.
Mark Lee Kilgore (Appellant) appeals from the trial court's judgment entered upon a jury verdict finding him guilty of one count of third-degree assault. We affirm.
Factual and Procedural Background
Appellant, 43, was charged with one count of third-degree assault, based on his conduct in striking his tenant Dennis Vogt (Vogt), 63, who rented a basement room in Appellant's house. Appellant's brother, Jason Kilgore (Jason), also rented from Appellant and lived in the basement, but his room did not have a door; rather, his area
On the afternoon of February 16, 2014, Vogt was in his rented basement room on his computer and Jason was sleeping in his bed at the foot of the basement stairs. Before leaving for work, Appellant noticed two moldy, rotten food items in Ziploc and Tupperware containers which he believed belonged to Vogt. Appellant became angry and proceeded to the basement to confront Vogt. Jason awoke when Appellant turned on the basement lights and stomped down the basement stairs. Appellant was angry and calling for Vogt. He pounded on Vogt's door and Vogt opened it. Appellant asked him if the moldy food in the refrigerator was his. Appellant followed Vogt who proceeded up the stairs to look at the food. On their way up, Vogt decided he did not have to assent to Appellant's demands and turned around to head back down to his room. As Vogt approached the bottom of the stairs, Appellant turned off the basement lights, set his cell phone on a table, and assumed a fight pose. Appellant punched Vogt in the head, stunning him, then grabbed him around the neck and repeatedly hit him in the head. When Vogt was finally able to collect himself, he grabbed Appellant in the crotch, ending the altercation. Appellant went upstairs and Jason checked Vogt's head for injuries. Jason called the police. Officer Joshua Taylor (Officer Taylor) responded to the call and arrested Appellant, who was subsequently charged.
The case proceeded to jury trial. Defense counsel submitted an affidavit that on the evening before trial, assistant prosecuting attorney Brittney Smith (APA Smith) contacted him and informed him she had researched criminal background on the State witnesses and none had any criminal history to disclose. On the morning of trial, the State filed a Motion to Endorse Additional Witnesses signed by assistant prosecuting attorney Daniel J. Kertz (APA Kertz) naming Officer Davis, Jason, Officer Mark Luttrell, and Robert Swarts (Swarts), a third tenant who did not actually witness the assault. Defense counsel's affidavit also stated that as Swarts entered the courtroom that afternoon to testify, APA Smith whispered to defense counsel that Swarts had a DWI.
The State called Swarts to testify regarding Appellant's alleged character for violence and being confrontational. Swarts testified Appellant's house was like a cult with Appellant as the leader victimizing the tenants who seemed to tremble in fear when Appellant entered the room. Swarts testified he learned Appellant had a lengthy history of abusing his brother Jason. Swarts described Appellant as constantly aggressive and berating, and the tenants were terrified of him.
Swarts testified Vogt, on the other hand, was peaceful and "one of the most meek [sic] men for his size I've ever met." Swarts maintained Vogt was not aggressive, violent, or threatening, and would not even defend himself. After the incident at issue, Swarts took Vogt to the courthouse to obtain an order of protection against Appellant. Swarts also moved out of Appellant's house.
Defense counsel did not impeach Swarts with his DWI conviction because Appellant also had a DWI and would be testifying.
At the close of the State's evidence, Appellant moved for a Judgment of Acquittal, which the trial court denied. Appellant testified in his defense. At the close of
Following the submission of the case to the jury, defense counsel discovered through his own background research Swarts had three convictions: second-degree assault by operating a vehicle while intoxicated resulting in injury, a class C felony; leaving the scene of an accident, a class D felony; and stealing over $500, a class C felony.
The jury found Appellant guilty of third-degree assault as charged. Prior to sentencing, the trial court heard Appellant's third Motion for Judgment of Acquittal and his Motion for New Trial, which it denied. The trial court sentenced Appellant to sixty days in the St. Charles County Jail and suspended execution of sentence, placing him on supervised probation for a period of two years and ordering him to serve five days' shock time, to stay away from Vogt, and to attend anger management classes. This appeal follows. Additional facts pertinent to the points on appeal will be adduced as necessary.
Points on Appeal
In his first point, Appellant claims the trial court erred in denying his Motion for a New Trial because the State violated Rule 25.03
In his second point, Appellant asserts the trial court erred in denying his Motion for Judgment of Acquittal because the uncontradicted and undisputed evidence established his claim of self-defense entitling him to an acquittal as a matter of law.
Standards of Review
This Court reviews a trial court's denial of a motion for new trial for an abuse of discretion.
This Court reviews the denial of a motion for acquittal to determine if the State adduced sufficient evidence to make a submissible case.
Appellant maintains the issue at trial was not whether the physical altercation occurred, but whether Appellant acted in self-defense. Once Appellant injected the issue of self-defense, his character was put into question. The State's key character
Appellant maintains this background information is significant, particularly to Appellant's claim of self-defense, because it casts doubt on the character and credibility of Swarts, the State's main character witness who attacked the character of Appellant, portraying him as an angry, volatile, and violent man, and described Vogt, the victim, as peaceful and meek, thereby significantly undercutting Appellant's self-defense theory.
Rule 25.03 outlines the disclosure requirements in a criminal proceeding as follows:
Rule 25.03 imposes an affirmative requirement of diligence and good faith on the State to locate records not only in its own possession or control but also in the control of other governmental personnel.
Here, the evidence at issue is of an impeachment nature in relation to Swarts, the State's character witness. Swarts testified as to aspects of Appellant's and Vogt's characters detrimental to Appellant's theory of self-defense. Knowledge
The State did not have knowledge of the three felonies, as it had not availed itself of that information by conducting a background search of Swarts. Inadvertence and good faith do not excuse a failure to comply with Rule 25.03.
However, the evidence was not material and Appellant was not prejudiced because even if the State had conducted the background check and produced the felony background information to defense counsel, we cannot say with certainty it would have made a difference in the trial's outcome, unlike in
On appeal by the State, the Missouri Supreme Court affirmed the motion court's action, stating "credibility was pivotal" because the entire outcome of the trial rested on the credibility of the victim T.B.
In the instant case, the evidence did not come from a single source. In addition to Swarts, the victim Vogt testified, and Jason, Appellant's brother, an eyewitness to the entire event, testified about the confrontation from beginning to end, from Appellant's stomping down the basement stairs angrily yelling for Vogt, to Appellant's repeatedly punching Vogt in the head at the base of the basement steps. Moreover, Jason, who had lived with Appellant for three years prior to the assault, also testified to his brother's volatile and explosive character. As such, we do not believe Appellant was prejudiced by the failure to impeach Swarts's credibility with information about his three prior felony convictions. Such evidence would not have within a reasonable probability made a difference in the outcome of this case.
For the foregoing reasons, Point I is denied.
Appellant claims the undisputed evidence at trial established his claim of self-defense entitling him to acquittal of assault as a matter of law.
The right of self-defense is a person's privilege to defend himself or herself against attack.
To sustain Appellant's claim he is entitled to acquittal as a matter of law, undisputed and uncontradicted evidence must clearly establish he acted in self-defense.
Furthermore, these conflicting accounts are for the jury to decide. The jury is responsible for weighing the reliability and credibility of the witnesses.
The jury heard evidence Appellant struck Vogt and Vogt ended up in the hospital with various significant injuries inflicted upon him by Appellant, leaving him with long-lasting aftereffects. Vogt and Jason both testified Vogt was minding his own business when Appellant stomped down the stairs, pounded on Vogt's door, yelled at and berated him, pursued him across the basement up the stairs, then proceeded to hit him in the head 16 or 17 times. Appellant continued to attack Vogt even when Vogt was stunned and down, until Vogt finally was able to summon the ability to grab Appellant's crotch to get Appellant to stop beating him. Appellant was unharmed. Vogt, on the other hand, was taken to the hospital by ambulance, where he was treated for multiple bruises to his face and head; a separated biceps muscle; a pulled hamstring; and a strained back. Vogt stated Appellant's punches left him stunned and seeing flashes of light. Vogt testified he had effects from the beating inflicted upon him by Appellant for months afterward. These are the facts of this case as we must view them, in the light most favorable to the jury's verdict.
Based on the foregoing, Appellant was not entitled to an acquittal on the assault charge "due to undisputed evidence in his favor on his claim of self-defense."
This Court will affirm the trial court's denial of a motion for judgment of acquittal if, at the close of evidence, there was sufficient evidence from which reasonable persons could have found the defendant guilty of the charged offense.
The trial court's judgment is affirmed.
Roy L. Richter, J., and Colleen Dolan, J., concur.