State v. Yount

STATE OF MISSOURI, Respondent, v. SHAWN W. YOUNT, Appellant.

No. ED108967

Court of Appeals of Missouri, Eastern District, First Division

September 28, 2021

Appeal from the Circuit Court of Cape Girardeau County 19BO-CR00019-02 Honorable Benjamin F. Lewis

ROBERT M. CLAYTON III, JUDGE

Shawn W. Yount ("Defendant" or "Defendant Shawn Yount") appeals the judgment, following a jury trial convicting him of four counts of the class D felony of second-degree burglary (Counts I, IV, Counts V, and VI).^[1] See section 569.170 RSMo 2016.^[2] The trial court sentenced Defendant to a total of thirty years of imprisonment. The trial court's sentence was based on (1) the court's finding that Defendant was a dangerous offender, and therefore, Defendant should receive an enhanced sentence on each count; (2) the court's finding that Defendant's enhanced sentence for each count should be a term of imprisonment of fifteen years, which is the maximum level of punishment for a class B felony^[3]; and (3) the court's decision to order Defendant's fifteen-year sentences for Counts I and IV to run concurrently with each other, Defendant's fifteen-year sentences for Counts V and VI to run concurrently with each other, and the fifteen-year period for Counts I and IV to run consecutively with the fifteen-year period for Counts V and VI.

Defendant raises a total of four points on appeal, which this Court considers in the following order. In his third and fourth points, Defendant challenges the trial court's admission of Detective Garry Brady's testimony pertaining to text messages implicating Defendant in the burglaries. In his first and second points, Defendant raises two arguments pertaining to his sentence. Specifically, Defendant asserts (1) the trial court improperly found Defendant was a dangerous offender under sections 558.016 and 558.021, and (2) alternatively, if this Court holds the trial court properly sentenced Defendant as a dangerous offender under sections 558.016 and 558.021, the trial court nevertheless improperly enhanced Defendant's sentence to the punishment level for a class B felony instead of a class C felony for each of his second-degree burglary convictions.

For the reasons set forth in detail below, we would hold the following. Because we would find that the trial court did not err in admitting Detective Brady's testimony pertaining to text messages implicating Defendant in the burglaries, we would deny Defendant's third and fourth points on appeal and affirm the portion of the trial court's judgment convicting Defendant of four counts of second-degree burglary.

Additionally because this Court would find merit to Defendant's argument in his first point on appeal that the trial court improperly sentenced Defendant as a dangerous offender under sections 558.016 and 558.021, we would reverse the portion of the trial court's judgment sentencing Defendant as a dangerous offender and remand for resentencing with instructions to the trial court to impose a sentence on Defendant for each second-degree burglary count in Counts I, IV, V, and VI consistent with the range of punishment for a class D felony set out in section 558.011.1(4), which is "a term of years not to exceed seven years."^[5] However, due to the general interest and importance of the issue involved in Defendant's first point on appeal -specifically the existence of a conflict between the plain meaning of section 558.016.4 and the language in Note on Use No. 4 to Missouri Approved Charges-Criminal 2d 2.30 ("MACH-CR 2.30")^[6] with respect to what is required to establish dangerous-offender status - we transfer this case to the Supreme Court of Missouri pursuant to Missouri Supreme Court Rule 83.02 (2021).^[7]

I. BACKGROUND

In November 2019, Defendant was charged with six counts of the class D felony second-degree burglary. See section 569.170. A jury trial subsequently took place, and Defendant was convicted of four of the six counts (Counts I, IV, Counts V, and VI). The trial court then sentenced Defendant as a dangerous offender to a total of thirty years of imprisonment. The relevant details pertaining to Defendant's trial and sentence are explained below.

A. Relevant Evidence Presented at Defendant's Jury Trial Pertaining to Defendant's Four Second-Degree Burglary Convictions and Subsequent Procedural Posture

Defendant's four second-degree burglary convictions relate to a series of break-ins occurring at four different locations in Bollinger County, Missouri. First, on December 17, 2018, there was a break-in at the New Salem Baptist Church. It appeared nothing was stolen. The church's surveillance camera captured a photo of a man wearing a heavy black coat and a sock cap during the break-in. Then, on January 15, 2019, there was a break-in at the Missouri Farm Bureau Office. Cash, gift cards, and stamps were stolen. Later that same date, the office of the Welker Drilling Company was broken into. Nothing was taken. Finally, on January 17, 2019, the Leopold Post Office was broken into, and $1, 124.51 in postal property and cash was stolen.

A suspicious vehicle was identified from video footage of businesses near the burglaries. Officers ran the vehicle's license plates and discovered it was registered to Sidney Scowden. When Scowden was questioned, she admitted she had acted as Defendant's driver and dropped him off at various locations in the area to commit burglaries.

Scowden told police Defendant communicated with her using two different cell phones. She admitted Defendant would use these phones to give her instructions for picking him up and dropping him off. Officers obtained Scowden's cell phone and downloaded the information stored on it. At trial, Detective Garry Brady testified there were hundreds of text messages on Scowden's cell phone from the two cell phone numbers Scowden identified as Defendant Shawn Yount's, and some of those text messages were signed "Shawn Yount[.]" Moreover, some of the messages corroborated Scowden's assertions that she acted as Defendant's driver. Scowden testified she was unaware of anyone else besides Defendant who communicated with her using the two relevant cell phones and phone numbers. Additionally, Detective Brady testified that when he interviewed Defendant, he asked Defendant for his cell phone number and Defendant provided one of the phone numbers identified by Scowden as belonging to Defendant.

At trial, Detective Brady was asked to read text messages between Scowden and Defendant that implicated Defendant in the burglaries. Defense counsel objected on the basis of hearsay, and the trial court overruled the objection.

Scowden testified Defendant wore a large black coat, a sock cap, gloves, and white Velcro shoes when he committed burglaries. Scowden also identified the man in the surveillance photo from New Salem Baptist Church as Defendant. The police searched Defendant's home and found a piece of paper in his bedroom with Sidney Scowden's phone number on it, a black puffy coat, gift cards, and stamps. Additionally, officers found a note in Defendant's mother's bedroom that read, "[W]ent with Sidney. If you need me call [cell phone number]." The number in the note was consistent with one of the numbers Scowden identified as belonging to Defendant. Scowden also testified that Defendant told her he needed to get rid of his shoes, and officers later found white Velcro shoes abandoned in a ditch.

After hearing the above evidence, the jury found Defendant guilty of four counts of second-degree burglary.

B. Relevant Procedural Posture Relating to Defendant's Sentence and this Appeal

In the State's amended information charging Defendant with six counts of second-degree burglary, the State alleged Defendant was a "dangerous offender" because: "Defendant has been found guilty of a dangerous felony as follows: on or about June 21, 1994, [D]efendant was found guilty of the felony of kidnapping in the Circuit Court of Cape Girardeau County, Missouri, and such felony was a dangerous felony as defined in [s]ection 556.061(19) [ ] RSMo [2016]."^[8]Additionally, a copy of Defendant's 1994 felony kidnapping conviction was admitted into evidence before the trial court without objection.

After the jury found Defendant guilty of four counts of second-degree burglary (Counts I, IV, Counts V, and VI), the trial court held a sentencing hearing, and the court entered its judgment in accordance with the jury's verdicts and sentencing Defendant to a total of thirty years of imprisonment. The trial court's sentence was based on, (1) the court's finding that Defendant was a dangerous offender, and therefore, Defendant should receive an enhanced sentence on each count; (2) the court's finding that Defendant's enhanced sentence for each count should be a term of fifteen years, which is the maximum level of punishment for a class B felony^[9]; and (3) the court's decision to order Defendant's fifteen-year sentences for Counts I and IV to run concurrently with each other, Defendant's fifteen-year sentences for Counts V and VI to run concurrently with each other, and the fifteen-year period for Counts I and IV to run consecutively with the fifteen-year period for Counts V and VI.

Defendant now appeals the trial court's judgment convicting him of four counts of second-degree burglary and sentencing him to a total of thirty years of imprisonment.

II. DISCUSSION

Defendant raises a total of four points on appeal, which we will consider in the following order. In Defendant's third and fourth points on appeal, he challenges the trial court's admission of Detective Brady's testimony pertaining to text messages implicating Defendant in the burglaries. In Defendant's first and second points on appeal, Defendant raises two arguments...