State v. Young

582 S.W.3d 84

STATE of Missouri, Respondent,

v.Marvin YOUNG, Appellant.

ED 106574

Missouri Court of Appeals, Eastern District, DIVISION THREE.

FILED: June 18, 2019

Motion for Rehearing and/or Transfer to Supreme Court Denied July 22, 2019

Application for Transfer Denied October 1, 2019.

William J. Swift, 1000 West Nifong, Building 7, Suite 100, Columbia, MO 64105, for appellant.

Eric Schmitt, Richard A. Starnes, P.O. Box 899, Assistant Attorney General, Jefferson City, MO65102, for respondent.

OPINION

Robin Ransom, J. Marvin Young ("Appellant") appeals from a sentence and judgment of conviction for first-degree tampering. He argues the trial court erred in overruling his motions in limine, admitting certain evidence, denying his motion to dismiss for a speedy trial violation, denying his motion for acquittal and imposing sentence because there was insufficient evidence to support the verdict, sustaining the State’s objection during closing arguments, and ordering restitution. We affirm Appellant’s sentence and judgment of conviction, but we vacate the restitution order.

Appellant has filed a motion to strike the State’s Supplemental Legal File containing the Sentencing Assessment Report (SAR), and his motion was taken with the case. The State’s Supplemental Legal File was timely filed and properly includes portions of the trial court record. See Rule 81.12(b), (e). Appellant’s motion to strike the State’s Supplemental Legal File is denied.

Background

In an Amended Information dated September 8, 2016, the State charged Appellant with one count of the class C felony of first-degree tampering in violation of Section 569.080.¹ The Information dated April 22, 2016, and the Amended Information alleged that on or about April 5, 2015, Appellant, acting alone or with others, altered automobiles by removing the wheels and tires without the consent of the owner, Rick Gastorf of Warren County, Missouri. The Amended Information further alleged Appellant was a prior and persistent offender. Before trial, Appellant filed a motion in limine to exclude evidence of prior bad acts, specifically: (1) that Appellant had been charged with and admitted to other wheel thefts at car dealerships in jurisdictions other than Warren County, and (2) Appellant’s statements regarding his use of heroin. After a hearing, the trial court denied the motion in limine. In July 2017, approximately fifteen months after Appellant was first charged by the original Information, Appellant filed a motion to dismiss for violation of his right to a speedy trial. The trial court denied the motion after a hearing. The week before trial, Appellant filed another motion in limine seeking to exclude evidence that Appellant was a passenger in a vehicle stopped by the Wentzville Police Department on March 26, 2015, arguing that because this stop occurred more than a week before the charged April 5 tampering, it was not relevant. After a hearing, the trial court denied this motion in limine.

The following evidence was adduced at the November 13, 2017, trial, viewed in the light most favorable to the verdict.² On March 23, 2015, wheels were stolen off of vehicles on a car dealership in Fenton, Missouri. Surveillance system photographs showed that the suspects drove a tan or light-colored SUV with a distinctive aftermarket black hood with black hood "scoops" on it. On March 26, 2015, an officer with the Wentzville Police Department stopped a goldish-tan late 90’s Chevy Tahoe for reasons unrelated to the theft. The vehicle had a "distinctive" sticker in the lower left-hand corner of the rear window. The driver was identified as Milliard Carpenter ("Carpenter") and the passenger was identified as Appellant.

On April 5, 2015, tires and wheels were stolen from two vehicles on the Gastorf Chevrolet car dealership in Warren County, Missouri, and the vehicles were placed up on cinderblocks. A surveillance video showed two people rolling tires to their vehicle, which was identified as a golden-color late model Chevy Tahoe SUV with a black "scoop" hood, aftermarket chrome wheels, and marking on one of the windows. The two people were not identifiable from the video. Police submitted photographs of the suspects' Chevy Tahoe SUV to the Highway Patrol’s Missouri Informational Analysis Center.

On April 14, 2015, wheels were stolen off vehicles at a car dealership in Collinsville, Illinois. Surveillance video showed a gold colored Chevy Tahoe SUV with aftermarket wheels and a distinctive sticker on the back window enter the car dealership lot around 2:30 a.m., and two people exited the vehicle and proceeded to remove wheels from the dealership’s vehicles. Police reviewed video surveillance from nearby businesses from around the same time, and video footage from a convenience store about three blocks from the car dealership showed the same gold SUV with aftermarket wheels and white rear-window sticker was there around 2:00 a.m. with two male occupants. The Collinsville Police Department circulated the men’s pictures in a press release, and anonymous callers identified the two men as Carpenter and Appellant and provided an address. Police set up surveillance at the address and quickly observed Appellant leaving the residence, but when police attempted to apprehend Appellant, he fled, leading them to a trailer. A subsequent search of the trailer revealed mail addressed to Appellant and multiple lug nuts, hub caps, latex gloves, and tools for removing wheels.

Appellant was subsequently arrested. During the police interview—the videotape of which was played to the jury—Appellant admitted to going to car dealerships with Carpenter and acting as the look out while Carpenter stole the wheels and that he would sometimes drive, assist with removing wheels, and help load the wheels. He stated Carpenter chose each of the victims and he could not remember each victim; however, he stated they stole wheels from all over. He initially stated he probably committed all of the wheel-theft incidents being investigated, but he later stated while he participated in the majority of the thefts, he did not participate in every single one. As for the April 2015 wheel theft at the Gastorf Chevrolet car dealership in Warren County at issue on appeal here, Appellant initially responded "yeah" when asked if he stole wheels in Warren County, but later he stated that Warren County did not sound familiar. The State’s witness testified on direct examination and on redirect examination that Appellant did not specifically deny committing the wheel theft in Warren County, but the witness testified on cross-examination that Appellant denied committing a wheel theft in Warren County.

As for additional co-defendants, Appellant stated as far as he knew, he was the only one helping Carpenter. Detective Keith Jackson ("Detective Jackson") from the Collinsville, Illinois Police Department testified one time without objection that the police were only looking at Carpenter and Appellant as suspects because neither suspect gave any other names of co-defendants. Then when asked again if either Carpenter or Appellant provided the names of anyone else they had worked with on this type of crime, Detective Jackson answered "no." After Detective Jackson answered, counsel for Appellant objected on hearsay grounds, which the trial court overruled. Similarly, Detective Patrick Trentham ("Detective Trentham") from the St. Louis County Police Department testified over a hearsay objection that neither Carpenter nor Appellant identified any other persons working with either of them to steal wheels, and police had not identified any additional suspects other than Carpenter and Appellant.

During his police interview, Appellant admitted he was a heroin addict and had been using heroin on a regular basis for the past several months. He stated he had been spending about $ 100 per day on heroin. He admitted he did not work but he had been funding his heroin use by helping Carpenter to steal wheels throughout the St. Louis metropolitan area and Illinois, which was his only source of income. We will address additional testimony and evidence during the Discussion as needed for our analysis.

Appellant presented no evidence in his defense, and at the close of all the evidence, he moved for a judgment of acquittal, which the trial court denied. The jury convicted Appellant of the single count of first-degree tampering. Appellant moved for a judgment of acquittal notwithstanding the verdict or for a new trial, which the trial court denied. The trial court sentenced Appellant as a prior and persistent offender to twelve years in the Missouri Department of Corrections, and it further ordered Appellant to pay restitution in the amount of $ 8,520.81. This appeal follows.

Discussion

Points I and VII

In his first and seventh points on appeal, Appellant argues the trial court abused its discretion in overruling the pretrial motions in limine regarding the admission of evidence of other wheel-theft crimes other than the charged crime and of his heroin use, in that this evidence was highly prejudicial evidence of his propensity to commit other crimes. We disagree.

A trial court has broad discretion to admit or exclude evidence at trial, and we review the trial court’s ruling for an abuse of that discretion. State v. Blurton , 484 S.W.3d 758, 769 (Mo. banc 2016). An abuse of discretion occurs when the trial court’s ruling clearly offends the logic of the circumstances or is so arbitrary and unreasonable that it shocks the sense of justice and indicates a lack of careful consideration. Id. Our review is for prejudice, not mere error, and we will reverse only if the defendant demonstrates that the error was so prejudicial as to deprive him of a fair trial and there was a reasonable probability the trial court’s ruling affected the outcome of the trial. Id. ; see also State v. Anderson , 76 S.W.3d 275, 277 (Mo. banc 2002). The burden lies on the defendant on appeal to...