dissenting.
I must respectfully dissent. The evidence presented at trial was insufficient to support Appellant’s conviction for domestic assault in the third degree, as the evidence does not establish beyond a reasonable doubt that Appellant caused physical injury to the victim.
“ ‘In order to convict a defendant of a criminal offense, the State is required, as a matter of due process, to prove beyond a reasonable doubt each and every element of the offense.’ ” State v. Sellmeyer, 108 S.W.3d 780, 782 (Mo.App. W.D.2003) (quoting State v. White, 92 S.W.3d 183, 192 (Mo.App. W.D.2002)). Accordingly, in reviewing a criminal defendant’s claim that his or her conviction is not supported by the evidence, “[t]his court must decide whether all the evidence, direct and circumstantial, is sufficient to provide a rational factfinder with proof beyond a reasonable doubt as to the elements of the crime.” State v. Kimberley, 103 S.W.3d 850, 857 (Mo.App. W.D.2003). In making that determination, this court must view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the State and disregard evidence and inferences to the contrary. State v. Deadmon, 118 S.W.3d 625, 627 (Mo.App. S.D.2003). The Court may not, however, “ ‘supply missing evidence, or give the [State] the benefit of unreasonable, speculative or forced inferences.’ ” State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001) (quoting Bauby v. Lake, 995 S.W.2d 10, 13 n. 1 (Mo.App. E.D.1999)).
In the information filed by the State, Appellant was charged with recklessly causing physical injury to the victim by “grabbing her by shirt around her neck, jerking her up off the couch, holding her in front of his face, yelling something into her face, throwing her back down on the couch and reaching down a second time and grabbing her again.” Thus, as part of its case, the State was required to prove, beyond a reasonable doubt, that Appellant’s reckless actions caused physical injury to the victim. “Physical injury” is defined as “physical pain, illness, or any impairment of physical condition.” § 556.061(20). The State failed to meet its burden of establishing that any action on the part of Appellant caused physical injury to the victim.
At trial, Officer Brashear, who was the only witness to testify, stated on cross-examination that, although he noticed that the victim had a freshly split lip with fresh blood and red marks on her neck, he could not conclude how the victim had sustained the split lip or exactly how Appellant had grabbed the victim. Officer Brashear testified, in relevant part:
Q: There was nothing about what you observed that would explain a split lip, was there?
A: No, sir.
[[Image here]]
Q: And you’re saying that the Defendant pulled her up by her shirt collar?
A: It appeared to be. His hands were approximately in this area (indicating). Now, whether he was grabbing the neck and the shirt got mixed in with it, or if he grabbed her neck, twisted it, and jerked her up by her shirt, I cannot exactly say because I seen it [sic] from the back side. But his hands was up around the neck area.
Q: So, if he had, as you say, grabbed by the shirt, that would put tension on the back of the shirt, wouldn’t it, to pull somebody up?
A: It would put tension on the back, as well as the front, if he grabbed and twisted. It would pull the entire shirt *755around the neck, kind of in a choking restraint.
Q: But your testimony is that you didn’t see exactly how he grabbed her.
A: Not exactly. Not from my point of view.
Q: So from your testimony, you can’t say that this little bit of redness there is from him grabbing her shirt, hauling her up?
A: I cannot say one hundred percent.
No direct evidence was presented by the State at trial to prove that Appellant’s actions caused the victim’s injuries. Officer Brashear’s testimony reflects that he never observed Appellant striking the victim in any way during the incident. The photographs of the victim, while showing the victim’s lip with what may be described as a moderate injury, by themselves do not demonstrate conclusively that she had been struck. Absent additional evidence, it cannot reasonably be inferred from the evidence, beyond a reasonable doubt, that any action on the part of Appellant caused the victim’s split lip. While the trier of fact may have suspected that Appellant had struck the victim in the face causing her split lip, a reasonable person could not conclude from the evidence, without resorting to speculation and conjecture, that Appellant had caused the injury to the victim’s lip.
With regard to the redness on the victim’s neck depicted in one of the photographs taken by Officer Brashear, the redness is barely visible in the photograph and is, by itself, insufficient to establish that the victim sustained physical injury within the meaning of the statute. Likewise a statement that the victim’s neck or neck area was red, without additional evidence related to the nature of the redness establishing that it resulted from injury, is insufficient to prove beyond a reasonable doubt that the redness was the result of an injury or that Appellant was the cause of that injury. In short, the mere fact that the victim had redness around her neck does not sufficiently establish that Appellant’s actions caused her physical injury.
Furthermore, Officer Brashear’s testimony reflects that he was not certain that the actions he observed, from his position of limited visibility, caused the redness on the victim’s neck. Indeed, in his testimony, the officer is even unclear as to what actions he actually observed on the part of Appellant. Both Officer Brashear and the Majority rely entirely upon speculation and conjecture in concluding that the redness around the victim’s neck resulted from the actions of Appellant.
The evidence presented at trial was insufficient to prove Appellant’s guilt of domestic assault in the third degree, as charged by the State. The evidence simply does not establish, beyond a reasonable doubt, that the actions of Appellant physically injured the victim. In reaching its conclusion to the contrary, the Majority relies upon Officer Brashear’s and its own speculation that the injuries were likely caused by the actions of Appellant. It is the duty of this court, however, to “seek to make sure that the finding of guilt is not based on speculation.” State v. Kimberley, 103 S.W.3d at 857.
I would, therefore, reverse Appellant’s conviction.