Thursday, November 9, 2017

Missouri case law shows our "clown commenter" is laughably off base in his efforts to re-write the statute governing contact that can amount to an assault

Carol Tovich Shuler
A review of Missouri case law shows that a "clown commenter's" efforts to twist statutory language governing Carol's "assault" case are wildly off target.

The commenter claims: (1) "Causing physical contact," as cited in RSMo 565.083, is not the same as "initiating contact"; (2) One who grabs another is not necessarily causing physical contact; and (3) Pushing on an inanimate object, such as a door, can be the same as pushing on a person.

These comments are particularly compelling now, in the wake of public defender Patty Poe's efforts to withdraw from Carol's case and prosecutor Nicholas Jain's notice that he will not seek jail time in the matter.

As we noted in a previous post, the commenter made no citations to law that might support such contentions. Our research indicates that's because there is no such law. We did, however, find plenty of law to show the "clowns" are way off target. Let's take a look at each of their contentions:

(1) Who grabbed whom, and who grabbed first?

A case styled State v. Raymond, (Mo: Court of Appeals, Eastern Dist., 2004) shines light on this issue? The Raymond case involved a Missouri prosecuting attorney (Steven E. Raymond), who conducted a meeting with a corporal for the Missouri State Highway Patrol (Donnie Schmitz) and a trooper (Corey Craig).

Raymond expressed his displeasure with the way Schmitz and Craig had handled money seized in a pending case. Both Raymond and Schmitz sat for the discussion, and when Raymond instructed Craig to sit, the trooper stated that he would prefer to stand. The two officers denied they had mishandled evidence, saying they had followed Patrol procedures. Here's what happened next:

At one point, Defendant walked over to the door of the office and shut it. He then pointed to Craig and requested that he sit down. Craig again stated that he preferred to stand. With a raised voice, Defendant directed Craig to sit down. Craig, startled, stated that he preferred to stand. Defendant demanded, "Sit your a—down in that chair." Craig did not sit.

Defendant became enraged, opened the door to the office, and told Craig to "get his a—out of my office." Defendant, standing between the door and Craig, advanced towards Craig, a few steps away, yelling at him to get out of the office. Defendant then thumped Craig on the chest with the palms of his hands, knocking Craig off balance, grabbed Craig by his coat lapels, and threw Craig out the door a few feet away. Craig fell to the floor, bumping the secretary's desk in the process, and then he jumped up. The incident happened quickly, within two to three seconds.

Schmitz intervened and told Craig to leave. Craig told Defendant that he had assaulted a law enforcement officer and Defendant responded that Craig was trespassing. Schmitz again told Craig to leave, and he did.

The opinion then provides this piece of important information:

Craig admitted that as [Raymond] was throwing him out the door and he was off balance, he momentarily, for about a second, put Defendant in a "headlock," but he then realized that would worsen the situation so he immediately released the headlock.

Raymond was charged by information with assault of a law enforcement officer in the third degree, a Class A misdemeanor in violation of Section 565.083. That's the same charge Carol faces. Specifically, the information charged that Raymond "knowingly caused physical contact with C.W. Craig, a law enforcement officer, without the consent of C.W. Craig, by pushing and grabbing him." The case proceeded to a jury trial, where Raymond was found guilty.

On appeal, justices had to sort out the following: Raymond "thumped" Craig on the chest and grabbed his coat lapels. Craig subsequently put Raymond in a brief headlock. So who "caused physical contact"? The appellate court didn't seem to struggle much with that question.

The record indicates the jury found that Raymond caused contact with Craig, and Craig's momentary headlock had no impact on the reasonableness of Raymond's actions. The appeals court upheld the jury's findings. Both parties made contact with the other, but the one who "initiated contact" was charged with a crime and convicted. The party who applied a headlock after being touched was not charged.

(2) "Causing physical contact" and "initiating contact" are different in some mystical way?

A case styled State v. Armstrong, 968 SW 2d 154 (Mo. Court of Appeals, 1998) puts the kibosh on this load of crap. Armstrong involved a man who was convicted of third-degree assault on a law enforcement officer, the same charge facing Carol, and was sentenced to 30 days in the county jail.

The defendant (Armstrong) asserted on appeal that evidence was insufficient to convict because two witnesses gave varying accounts of how the contact occurred. The appellate court upheld the conviction, stating:

There was evidence indicating that the victim of the assault had arrested or was attempting to arrest Appellant when Appellant launched himself backwards into the deputy, knocking him off his feet and into a ditch. It is certainly reasonable to infer that the officer did not give his consent to being knocked down, as well as consent to other physical contact upon himself.

We do not view the State's two witnesses as being in direct contradiction, as one was not sure how the contact was initiated, but the other witness was.

The court found that one witness was certain that Armstrong had "initiated" contact, and that was sufficient to uphold the conviction. The statute uses the term "caused contact," and the appellate court used the term "initiated contact," indicating the two mean the same thing and are interchangeable.

(3) You can cause contact with a person by touching an inanimate object?

A case styled JDB v. Juvenile Officer, 2 SW 3d 150 (Mo. Court of Appeals, 1999) shows this is a pile of excrement, too. JDB involved a juvenile who decided it would be fun to circle and then chase after the car of a woman (Ms. Hord) who lived nearby. In a roundabout chain of events, the juvenile was charged with third-degree assault. From the opinion:

At trial, witness Hord testified as to events that occurred on October 20, 1997, outside her apartment complex in Lee's Summit, Missouri. Ms. Hord testified that, at some time during the late afternoon or evening hours on that day, J.D.B. and two of his friends, wearing Halloween masks, surrounded her car and "gyrat[ed] their hips in a sexual manner." Ms. Hord became "upset" and left to run errands. Later that evening, at approximately 8:20, Ms. Hord again encountered the three teens while she was outside near her mailbox. When she saw them approaching, Ms. Hord got in her car and locked the doors. She testified that the boys again surrounded her car, this time holding the masks in their hands and also one of the boys "[n]ot J.D.B., [a]nother one" was carrying a plastic "machete." Ms. Hord testified the boys were again gyrating their hips and that J.D.B. was right next to her driver's side window "pumping his hips right into the car, so the car was moving."

At this time, Ms. Hord left, drove to Wal-Mart and called the police. When asked by the juvenile's attorney if the incident had frightened her, Ms. Hord replied, "Not frightened. Alarmed. I didn't know what they were doing." When asked if she thought the boys were going to rob her, Ms. Hord responded, "My car door was locked. What could they do?" Ms. Hord also stated that she knew the "machete" was plastic just by looking at it and that she "thought they were starting Halloween early."

Did this actually amount to an assault? The opinion provides more details:

At trial, J.D.B. took the stand to testify on his own behalf. The juvenile testified that while Ms. Hord was at the mailbox he remarked to his friends, "Hand me a mask. I'm about to scare this woman." J.D.B. claimed he stood by her driver's side window, walked around to the passenger side window and then chased after her car as Ms. Hord left the scene. Contrary to Ms. Hord's testimony, J.D.B. said he was wearing a Halloween mask and was carrying the "machete" when the incident occurred. When asked about the events of that evening, J.D.B. remarked, "I was just trying to scare her. It was just going to be a joke." When asked what he would like to say to Ms. Hord, the juvenile replied, "I would like to apologize for scaring her. . . . And also, I would like to apologize for scratching her car. I didn't do it, but one of my friends did." After being questioned why he would apologize for scaring Ms. Hord, J.D.B. responded, "Because I do admit to that."

Ms. Hord never said J.D.B. touched her. J.D.B. admitted he touched her car -- and apologized for that -- but said he did not touch Ms. Hord. From the court:

This court has previously defined physical contact sufficient to constitute an assault as "the touching of the person of another or something so intimately associated with, or attached to his person to be regarded as a part thereof." State v. Greathouse, 789 S.W.2d 50, 52 (Mo.App., 1990).

Viewing the record in the light most favorable to the judgment, the only possible evidence of contact between Ms. Hord and J.D.B. was Ms. Hord's testimony that the juvenile was pushing against her car in such a manner that the car was moving. There is also J.D.B.'s testimony that he would apologize for scratching Ms. Hord's vehicle, which he then claimed was done not by him but by another of the juveniles. There is no evidence in the record of any contact that J.D.B. had with Ms. Hord's actual person. In order to support a conviction under this theory of assault, it must be found that the juvenile's contact with Ms. Hord's car was with something so intimately associated with or attached to her as to be considered a part of her person. The juvenile officer cites to no authority that would support such a finding, and this court can find no such Missouri authority.

How does this apply to Carol's case? Our "clown commenter" claims Carol caused contact with Officer Lynn by pushing against a door as he was trying to enter. (Never that no person with a name presents evidence in the Probable Cause Statement that Carol did any such thing.) But the court held in JBD that such an action, even if it occurred, could only be assault if the contact "was with something so intimately associated with or attached to her as to be considered a part of her person."

Is the "clown commenter" claiming Officer Lynn had such an intimate association with our door that it was a part of his person? Perhaps Officer Lynn and our door need to check into a hotel room so they can engage in future intimacies?

Obviously, this notion is laughable. At least the person making these assertions earned the name "clown commenter."

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