In the Missouri Court of Appeals
Eastern District
DIVISION FOUR
STATE OF MISSOURI, ) ED104090
)
Respondent, ) Appeal from the Circuit Court
) of the City of St. Louis
v. ) l422-CR026}7-0]
)
WILLIAM EDWARDS, ) Honorable Michael F. Stelzer
)
Appellant. ) Filed: February 7, 2017
Introduction
William Edwards (Defendant) appeals the judgment entered upon his convictions
of two counts of assault in the second degree, two counts of armed criminal action, one
count of resisting arrest, and one count of driving while revoked. He argues that his two
convictions for assault resulting from the same act violate his right to freedom from double
jeopardy. He also contests the sufficiency of the evidence to support his convictions We
affirrn.
Background
Defendant waived ajury trial on the above charges The evidence at his bench trial,
in the light most favorable to thejudgment, Was the followingl On July 5, 2105, Sergeant
1 State v. Anderson, 386 S,W.3d 136, 190 (Mo. App. E.D. 2012) (reviewing court views evidence in light
most favorable to verdict).
Paul Anderson (Sergeant Anderson) was working at a DWI checkpoint, where it was his
task to locate any vehicles turning around or trying to avoid the checkpoint before reaching
it. He saw a dark~colored Mercury turn around before reaching the checkpoint and then
accelerate away from the checkpoint at a high rate of speed. Sergeant Anderson
immediately pulled into the street behind the Mercury, activated his lights and sir'ens, and
attempted to stop the vehicle. The driver of the Mercury, later identified to be Defendant,
did not stop.
Sergeant Anderson followed the Mercury and observed it go through a red light
without stopping, traveling at speeds up to 70 miles per hour on a street with a speed limit
of 30 miles per hour, After turning onto a different street, the Mercury reached speeds of
90 miles per hour and was crossing over the center lane of the road. Defendant drove the
car through another red light while on the left side of the road. At one point, Defendant
had to stop the Mercui‘y due to traffic backed up at a red light. Sergeant Anderson pulled
up behind the Mei'cury, exited the police vehicle, walked over to the Mercury, and
attempted to take Defendant into custody. The driver’s side door handle of the Mer'cury
was locked, and Defendant continued trying to move the vehicle around tr'affic; The
stoplight turned green and traffic started to flow again, so Sergeant Anderson returned to
his police vehicle and continued following Defendant.
As Sergeant Anderson was following Defeudant eastbound at a speed of
approximately 74 miles per hour, he saw Defendant go through a red light at an intersection
Without attempting to stop. Another vehicle came through the intersection from the south
at the same time and collided with the Mer'cur‘y. Defendant’s vehicle spun to the north, up
onto a sidewalk and into a yard, struck a tree, and became tangled with a fence. The other
vehicle spun eastbound, rolled a bit south, and came to rest against the curb.
Sergeant Anderson saw Defendant inside his vehicle trying to get out through the
front passenger door. When Defendant saw Sergeant Anderson he tried to go back into the
vehicle. Sergeant Anderson was able to put one handcuff on Defendant, and backup
officers arrived and helped get Defendant out of the velricle. Sergeant Anderson and some
other officers went to the other vehicle and saw two women, neither of whom were moving.
The driver, Pierra Hathaway (Hathaway), was hanging out of the driver’s side door where
the window was broken. Sergeant Anderson did not have any contact with the passenger,
Shawnte Champ (Champ).
Hathaway’s mother, l\/laria Fonville (Fonville), testified at Defendant’s trial that
she received a call from the hospital that night regarding her daughter. Fonville went to
the hospital and found Hathaway in a coma with a bolt driven into her brain. Hathaway
was in a coma for three weeks, and her condition at the time of trial was that she had
sustained a spinal cord injury and brain darnage, leaving her with the cognitive ability of a
lO-year-old. At the time of trial, Hathaway had to use a walker to get around, and she was
no longer able to take care of her two children or provide any income for her family as she
had previously. At trial, Champ testified that she was not able to remember the moment
of irnpact, but she testified that she suffered a lacerated spleen, a broken wrist, a broken
jaw, and head injuries because of the accidentl
The trial court found Defendant guilty in Counts l and III of second-degree assault,
one related to Hathaway and one related to Champ, for which the court sentenced
Defendant to concurrent terms of 15 years’ imprisonment The trial court also found
Defendant guilty in Counts ll and IV of the accompanying charges of armed criminal
action. The trial court sentenced Defendant to 15 years’ imprisonment for each, Count iV
to be served concurrently with all of the other counts, and Count IlI to be served
consecutively Finally, the trial court found Defendant guilty in Count V of resisting arrest
and in Count VI of driving while revoked, for which the trial court sentenced Defendant to
concurrent terms of seven years and one year', respectively, for a total sentence of 30 years.
This appeal follows.
Discussion
Defendant raises four points on appeal. First, he argues the trial court erred in
finding him guilty oftwo counts of second-degree assault because the charges arose out of
one act, and thus his conviction of more than one charge of assault and the accompanying
charge of armed criminal action violates his right to freedom from double jeopardy In
Point Il, Defendant argues that the trial court erred in convicting him of all counts of
second-degree assault and armed criminal action because the evidence at trial did not
support the charging dooument’s language describing the collision. ln Points III and IV,
Defendant argues that there was insufficient evidence to convict him of each count of
assault, and thereby each accompanying count of armed criminal action, regarding the issue
of whether the collision caused the injuries to each victim. We discuss each in turn.
M
Defendant argues that the trial court erred in convicting him of two counts of
second-degree assault arising from one criminal act, thus violating double jeopardy We
disagree
Defendant raises this claim for the first time on appeal. The protection against
doublejeopardy is a constitutional right addressing the power of the State to bring a charge
against an accused. State v. Neher, 213 S.W.?)d 44, 48 (l\/lo. banc 2007). ln order to
preserve a constitutional claim for review, it must be raised at the earliest opportunity
State v. Horton, 325 S.W.3d 474, 477 (l\/lo. App. E.D. 2010). However, if a claim of double
jeopardy can be determined from the face of the record, it is entitled to plain error review
upon appeal. Ne_her, 213 S.W.3d at 48. Here, the record does not facially reveal any such
error.
One of the protections afforded by the double jeopardy clause in the Fifth
Arnendrnent to the United States Constitution is a protection from “multiple punishments
for the Same offense.” State v. Hardin, 429 S.W.Sd 417, 421 (Mo. banc 2014). ln this
respect, “the Double Jeopardy Clause does no more than prevent the sentencing court from
prescribing greater punishment than the legisiature intended.” Li (quoting Missouri v.
Hunter, 459 U.S. 359, 366 (1983)); see also State v. Walker, 352 S.W.3d 385, 387 (Mo.
App. E.D. 201l) (Missouri follows separate offense rule). Thus, the first step is to look to
the statute under which Defendant was charged and convicted. State v. Porter, 464 S.W.3d
250, 255 (Mo. App. E.D. 2015).
Here, Defendant was convicted of second-degree assault under Section 565.060,
RSMo. (Supp. 2006), which states the following:
1. A person commits the crime of assault in the second degree
if he:
(3) Recklessly causes serious physical injury to another
person[.]
The statute defines assault as causing injury to another person, in the singular. Thus, the
plain language indicates that an assault on several persons would support separate charges
of assault against each victim
The Missouri Supreme Court considered a similar issue in State v. Smith, 456
S.W.Bd 849 (Mo. banc 2015). There, the defendant had fired a gun three or four times at
a person who was running away from him, missing that person but hitting and killing
another person nearby. § at 851. The defendant was convicted of first-degree murder for
the victim he had killed and first-degree assault for the person the defendant had shot at
but had not injured. id. ln concluding that the defendant’s freedom from double jeopardy
was not violated by the two convictions, the Missouri Supreme Court reasoned, “[w]hen
the same conduct results in harm to two or more victims, doublejeopardy is not violated if
a defendant is convicted for the harm to each victim.” li at 853.
The SLith Court relied on a previous l\/lissour'i Supreme Court case finding no
double jeopardy violation in a defendant’s convictions of three separate counts of
manslaughter where the defendant had killed three persons in an automobile accident. §
(citing State v. Whitley, 382 S.W.2d 665, 667 (Mo. 1964)). The My Court had stated
that “[t]he gravamen of the offense is killing a human being, and the statute by its terms
contemplates that there shall be as many offenses as there are human beings killed, whether
by one or several acts.” 382 S.W.Zd at 667, guoted in with 456 S.W.3d at 853;§§§_&1_1_8_9
State v. Bowles, 754 S.W.2d 902, 908 (“The double jeopardy doctrine is directed to the
identity of the offense, and not to the act”).
This analysis applies equally in the present case, and in fact this Court has found it
applies irl the context of multiple assaults arising from one act by the defendant In State
v. Bowles, this Court explained that “[t]he overwhelming weight of authority holds that a
single act of assault by the defendant which affects two or more persons constitutes
multiple offenses.” 754 S.W.Zd at 911 (citing authority).2 Here, while Defendant
committed one act, it resulted in harm to two different persons. His convictions for second-
degree assault for each victim do not offend either the applicable statute or Defendant’s
constitutional protection from double jeopardy.3 Point denied.
M
in Point II, Defendant argues that there Was insufficient evidence supporting his
convictions in Counts l and III, and therefore in the accompanying Counts ll and IV for
armed criminal action, because the evidence at trial did not support the crimes as charged
in the indictment in that there was no evidence he “struck” the victims’ vehicle with his
vehicle. We disagree.
As a threshold matter, Defendant’s argument that there was insufficient evidence
to convict him of the crime as charged in the indictment is not the same as arguing there
was insufficient evidence at trial that he committed the crime of second-degree assault.
w State v. Nelson, 334 S.W.$d 189, 197 (Mo. App. W.D. 2011). This is essentially a
claim of variance between the evidence at trial and the charging docurnent, to which
Defendant failed to object at trial or include in his motion for new trial. §§ iLl.
2 'l`lre statute at issue in Bowles was for third-degree assault, committed when a person “recl