Judge Gayle Crane on Thursday in Jasper County Circuit Court in Joplin granted a defense motion for acquittal of a Webb City man on a felony domestic assault charge after the state had rested its case but before the matter could be submitted to the jury.
Assistant Prosecutor Taylor Haas had finished presenting the state’s case by the end of the first day of the trial of Kevin A. Maggard, 32, on Wednesday, and the judge sent jurors home for the night while she conferred with the attorneys involved to discuss related matters of law.
As it turned out, the judge was concerned that the testimony and evidence presented by the state did not meet statutory requirements for the charge of first-degree domestic assault that Maggard was facing from an alleged attack on his wife, Bobbie Friend, on Jan. 30, 2019.
Maggard, according to court records, became upset when he discovered text messages from another man on his wife’s cellphone and hit her in the head with the phone before head-butting her.
Testimony the first day of the trial established that she had pulled a gun on him twice during the altercation — after he first hit her with the phone and again after he head-butted her.
The law states that someone commits first-degree domestic assault if they attempt to kill or knowingly cause or attempt to cause serious physical injury to another person who qualifies as a domestic victim.
Defense attorney Jared Stilley had taken issue during opening statements with the state’s contentions that Friend suffered serious injury and that his client intended to cause her serious injury.
Stilley characterized the broken nose she sustained as “a very subtle hairline fracture” and said his client was simply reacting to an initial provocation and fear in having a gun pointed at him.
Haas responded to the judge’s concern Thursday with a proposed amending of the charge from a Class A felony count of first-degree domestic assault to a Class B felony count of attempted first-degree assault.
But the judge pointed out to him — in court without the presence of jurors — that the amended charge would still require the state to show an intent to cause serious physical injury, which she felt was lacking in its presentation of evidence.
The judge said there was no testimony that Maggard had threatened to kill his wife or to cause her serious injury, that he did not employ a deadly instrument and that he did not strike her repeatedly.
With that indication from the bench that the court was probably not any more willing to let the amended count be submitted to jurors than the original charge, Haas asked that he be allowed to amend the count down to a Class D felony count of second-degree domestic assault, which ºrequires only that the perpetrator caused injury to a domestic victim.
That motion raised strident objections from Stilley and defense co-counsel Jay O’Donnell on grounds that it would force them to adjust the defense of their client “on the fly,” which Stilley said would be “incredibly prejudicial” to their client.
The judge agreed, telling Haas that would be too much of “a game-changer for the defense” and “an abuse of the substantial rights of the defendant.” Her decision left the charge at the first amended count that the state had presented of Class B felony first-degree domestic assault.
The judge then took up the defense’s motion for acquittal, which is commonly presented in jury trials at the conclusion of the state’s case, and sustained the motion, clearing Maggard of the charge.