STATE OF MISSOURI, Plaintiff-Respondent vs. JOSHUA ROLAND GILLEY, Defendant-Appellant

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STATE OF MISSOURI, ) ) Plaintiff-Respondent, ) ) vs. ) No. SD36589 ) JOSHUA ROLAND GILLEY, ) Filed: December 18, 2020 ) Defendant-Appellant. )

APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

Honorable Calvin R. Holden, Circuit Judge

AFFIRMED

This is an appeal from a conviction of the class B felony of assault in the second degree. Section 565.052. 1 Joshua Roland Gilley ("Appellant") was convicted of striking a booking officer after he had been arrested and was being returned to a holdover cell at the jail. He claims that there was insufficient evidence to support a finding of a "reckless" mental state. We disagree. We review a challenge to the sufficiency of the evidence by accepting all evidence and inferences in the light most favorable to the verdict; we reject all contrary evidence

1 All references to statutes are to RSMo Cum.Supp. 2017, unless otherwise stated.

2 and inferences. State v. Goddard, 34 S.W.3d 436, 438 (Mo.App. W.D. 2000). After accepting the evidence in the light most favorable to the verdict and rejecting all contrary evidence, we then review a challenge to the sufficiency of the evidence to determine whether the State has introduced "'sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt.'" State v. Smith, 944 S.W.2d 901, 916 (Mo. banc 1997) (quoting State v. Purlee, 839 S.W.2d 584, 587 (Mo. banc 1992)). With this standard of review in mind we analyze the following evidence. Appellant, a 260-pound, semi-professional, mixed martial arts fighter, was arrested for assault after a disturbance. At the scene, a person involved in the disturbance was bleeding from the nose and mouth area and Appellant had a wound on his right knuckle. While en route to the jail, Appellant became hysterical; he began slamming his head against the glass in the back of the patrol car and explained that he wanted to hurt the arresting officer. He clenched his teeth and started wrenching the back of his hands as if to break free from his handcuffs. Upon arrival at the jail, the arresting officer asked for assistance in removing Appellant from the patrol car and placing him in a holdover cell. Two officers, officer A and the victim, were responsible for booking at the jail that morning. Officer A was one of the officers who assisted the arresting officer in bringing Appellant in and putting him in a holdover cell. While in the holdover cell, Appellant banged on the door and window several times and continued yelling. At some point, after he had calmed down and the booking process was complete, Appellant began growing agitated again when he could not find his probation officer's phone number. At this time, Appellant was outside of the holdover cell and in the booking area. The same two booking officers, officer A and the victim,

3 were told by a superior to return Appellant to the holdover cell since he was getting worked up. As they attempted to do so, Appellant broke free of officer A and punched the victim in the face with his left fist. The victim fell to the ground and received severe injuries, which caused permanent and serious damage. 2 The assault on the victim precipitated the charge of assault in the second degree. 3

A person commits the offense of assault in the second degree if he "[r]ecklessly causes serious physical injury to another person[.]" Section 565.052.1(3). 4 Further, a person acts "recklessly" when he " consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation." Section 562.016.4. Contrary to Appellant's assertion that this was simply "a one-punch situation," there is no "one free punch" rule of law. Each situation is analyzed in light of the evidence at trial. Given the evidence at this trial indicated that Appellant was a large man with a martial arts fighting background and that he struck the victim with such force that the victim was knocked to the ground, we find substantial evidence supporting a finding that Appellant was reckless in his actions. Appellant consciously disregarded a substantial and unjustifiable risk that the victim would suffer a serious physical injury. A

2 The victim had both protracted impairment and serious disfigurement. He had an orbital fracture and nasal fracture, and blood vessel damage. He required surgery, a steel plate had to be inserted into his face that he will have for the rest of his life. He can feel the plate and screws in his face and he continues to have vision issues and dizziness, as well as permanent scarring and a crooked nose.

3 Appellant was charged with two counts of assault; however, the court found Appellant guilty of the charge of assault in the second degree (against the victim) and not guilty of the charge of assault in the fourth degree (against officer A).

4 Assault in the second degree is typically a class D felony, but because the victim of the assault in this case was a "special victim," a law enforcement officer assaulted in the performance of his official duties, Appellant was charged and convicted of a class B felony. Sections 565.002.14(a) and 565.052.3.

4 blow to the face of another person involves an unjustifiable risk that one might strike the person's eye, causing serious injury. State v. Brown, 937 S.W.2d 233, 235-36 (Mo.App. W.D. 1996). The point is denied. The judgment is affirmed.

Nancy Steffen Rahmeyer, P.J. – Opinion Author

Daniel E. Scott, J. – Concurs

William W. Francis, Jr., J. – Concurs