State v. Heitman
613 S.W.2d 902, 1981 Mo. App. LEXIS 3327 (1981)
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Rule of Law:
Intent to kill and malice aforethought for an assault charge can be inferred from circumstantial evidence, even if the deadly weapon is not fired, especially when a loaded, cocked, and operable firearm is pointed directly at a victim at close range. External intervention or a change of mind that thwarts the act does not negate the previously formed intent or the character of the assault.
Facts:
- In the early morning hours, an automatic alarm notified Kansas City police of an unauthorized entry into Bill and Gerry’s Bar.
- Officer New and his canine unit, along with other officers, responded; New entered the bar with his dog and observed Heitman behind the bar counter ransacking drawers.
- After New shouted a warning without response, he released his dog, and Heitman crouched behind the bar, protected by debris and open cabinet doors.
- As Officer New walked toward the opposite end of the bar, Heitman pointed a pistol at New from his squatting position.
- Officer Koetting, observing from the street through the front window, fired two shots, striking Heitman, believing New to be in immediate danger.
- Heitman fell, and the pistol flew from his hand; it was later found to be loaded, cocked, and in operating condition.
- Investigation revealed Heitman had gained entry to the bar by coming through the roof and a false ceiling in an office area, with a sledgehammer found on the roof.
Procedural Posture:
- Heitman was charged in state trial court with assault with intent to kill with malice aforethought, burglary second degree, and stealing.
- A jury found Heitman guilty of all charges.
- The trial court sentenced Heitman to concurrent terms of eight and three years for burglary and stealing and a consecutive sentence of thirteen years for assault.
- Heitman, as the appellant, appealed his conviction to the Missouri Court of Appeals, arguing (1) insufficient evidence for the assault charge, (2) erroneous failure to submit a lesser included offense of common assault, and (3) a defective jury instruction on assault without malice.
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Issue:
Does evidence that a defendant, while committing a burglary, pointed a loaded, cocked, and operable pistol at a police officer from close proximity, but did not fire it because another officer intervened by shooting the defendant, constitute sufficient proof of intent to kill and malice aforethought to sustain a conviction for assault with intent to kill?
Opinions:
Majority - Clark, Judge
Yes, the evidence was sufficient to prove intent to kill and malice aforethought. The court reasoned that intent, an element of assault, is not typically proven by direct evidence but can be inferred from circumstantial evidence, such as Heitman's actions and the circumstances presented. Heitman's act of drawing a loaded, cocked, and operable revolver and pointing it at Officer New from six to eight feet away while in the midst of committing a burglary provided sufficient grounds for the jury to infer intent to kill. The fact that the weapon was not fired was due to external intervention (Officer Koetting's shots) or a potential change of purpose, neither of which negates the intent that existed when Heitman aimed the weapon. The court cited precedent that 'a change of mind, premature discovery, resistance of an intended victim or intervention of outside forces which thwart the act of violence do not change the character of the assault or purge the defendant of the offense.' Furthermore, malice is presumed in an assault involving a deadly weapon, absent countervailing circumstances, which were not present in this case. The court also affirmed the trial court's decision not to submit a lesser included offense of common assault because the use of a deadly weapon, whose natural consequence is great bodily harm, generally precludes such an instruction without evidence suggesting a lack of an essential element of the higher offense, and no such evidence (e.g., self-defense, justification, mitigation) was presented by Heitman. The jury instructions were found to be adequate.
Analysis:
This case significantly clarifies that a defendant's intent to kill and malice can be established through circumstantial evidence, even if the intended violent act is thwarted by external forces or a change of mind. It underscores the principle that the act of brandishing and aiming a loaded, operable deadly weapon at an individual, especially a law enforcement officer, is a powerful indicator of such intent. The ruling reinforces that the use of a deadly weapon inherently creates a presumption of malice, placing a high burden on defendants to present countervailing evidence if they wish to argue for a lesser charge. This precedent guides future courts in assessing intent and the appropriateness of lesser included offense instructions in deadly weapon assault cases.
