State Of Mo. v. Mcdonald

• Decision Date: 02 April 2010
• Docket Number: No. SD 29579.,SD 29579.
• Citation: State v. McDonald, 321 S.W.3d 313 (Mo. App. 2010)
• Parties: STATE of Missouri, Plaintiff-Respondent, v. George B. MCDONALD, Defendant-Appellant.
• Court: Missouri Court of Appeals

321 S.W.3d 313

STATE of Missouri, Plaintiff-Respondent,

v.George B. MCDONALD, Defendant-Appellant.

No. SD 29579.

Missouri Court of Appeals,Southern District,Division One.

April 2, 2010.

COPYRIGHT MATERIAL OMITTED.

William J. Fleischaker, Joplin, MO, for Defendant-Appellant.

Chris Koster, Atty. Gen., Terrence M. Messonnier, Asst. Atty. Gen., Jefferson City, MO, for Plaintiff-Respondent.

JEFFREY W. BATES, Presiding Judge.

After a jury trial, George McDonald (Defendant) was convicted of one count of first-degree assault of a law enforcement officer; one count of resisting arrest; two counts of first-degree tampering; one count of attempted stealing of an automobile; and two counts of stealing by appropriation of a credit card. See § 565.081; § 575.150; § 569.080; § 570.030.3(3)(a) and § 564.011; § 570.030.3(3)(c). ¹ On appeal, Defendant contends the trial court erred by: (1) permitting joinder of the two credit card counts with the other five charges; (2) not severing the two credit card counts; and (3) giving two erroneous jury instructions. This Court affirms.

Defendant does not challenge the sufficiency of the evidence to sustain his convictions. On appeal, this Court considers the facts and all reasonable inferences derived therefrom in a light most favorable to the verdict, and rejects all contrary evidence and inferences. State v. Newberry, 157 S.W.3d 387, 390 (Mo.App.2005); State v. Cravens, 132 S.W.3d 919, 921 (Mo.App.2004). Viewed from that perspective, the favorable evidence supporting the State's case against Defendant is summarized below.

In January 2007, George Sarson, Jr. (Sarson) was employed by Hank's Fine Furniture in Joplin, Missouri. Sarson owned a 1993 Mitsubishi Montero. On Monday, January 29th, Sarson drove his Montero to work and parked it outside the business. He left his wallet, which contained his driver's license and Sears credit card, inside the vehicle. When he left work around 7:00 p.m., the Montero was gone.

In January 2007, Stephanie Hallet owned a white Ford Freestar van. On Tuesday, January 30th, she reported to police that the van had been stolen. The vehicle had been left at the Snodgrass Body Shop for repairs.

In late January 2007, Ashley Erdman's purse was stolen from her vehicle. Her purse contained her wallet, identification, social security card, Visa card and checkbook.

On January 31, 2007, John Crandon owned a 1996 silver Mazda 626. That evening, Crandon was driving on Highway 171 during an ice storm. The Mazda ran off the road and got stuck in a ditch approximately one mile south of Asbury, Missouri. Crandon left his vehicle there and rode home with his father. The rear passenger window of the Mazda was intact when Crandon left.

Early on the morning of Thursday, February 1st, Sergeant Mike Bryan (Sgt. Bryan) of the Missouri State Highway Patrol (MSHP) traveled on Highway 171 to investigate a serious automobile accident one mile north of Asbury. On the way to the accident scene, Sgt. Bryan passed by Crandon's Mazda. It was down in the ditch on the west side of the road. The vehicle appeared to have been there most of the evening because it was almost completely covered with ice and snow. None of the Mazda's windows were damaged.

Sgt. Bryan remained at the accident scene for about two hours. He then drove south on Highway 171 toward Asbury. Around 11:00 a.m., Sgt. Bryan was three-quarters of a mile south of the Asbury city limits when he observed a white Ford Freestar van. This vehicle was parked in the southbound lanes, facing north, with its emergency flashers illuminated. Sgt. Bryan pulled up to the front of the van and activated the patrol car's emergency lights. The van had no front license plate. Crandon's Mazda was nearby, stuck in the ditch. Sgt. Bryan pulled around behind the van to see if there was a rear license plate. The rear hatch was up. The interior jack cover was missing, but none of the tires on the van were flat. Sgt. Bryan observed Defendant inside the Mazda, reaching from the back seat into the front seat. There was a tire iron in the front seat, and the CD player had been damaged in an effort to remove it from the dash.

When Sgt. Bryan walked toward the Mazda, Defendant exited the vehicle through the front passenger door. Sgt. Bryan asked who owned the Mazda, and Defendant said it belonged to a friend of his named Chris Carpenter. According to Defendant, Carpenter was at a convenience store in Asbury and had called a tow truck. Sgt. Bryan asked Defendant for identification, and he said it was in his van. When he turned, Sgt. Bryan saw the outline of a man's wallet in Defendant's right rear pocket and a checkbook sticking out of the top of the same pocket. Sgt. Bryan told Defendant to stop and hand over whatever identification was in the wallet. Defendant opened the wallet and gave the officer George Sarson's license. Sgt. Bryan noticed that Defendant did not match the description on the license. Sgt. Bryan also noticed that the Mazda's rear passenger window was broken out and mentioned this to Defendant. He fled.

Sgt. Bryan ordered Defendant to stop, but he did not comply. Defendant ran toward the driver's door on the van with Sgt. Bryan in pursuit. He tackled Defendant to keep him from entering the van, and both men landed in the ditch. Defendant escaped and took off running again, only to be tackled a second time by Sgt. Bryan. Defendant got away a second time and was able to get into the passenger side door of the van. As Defendant crawled across to the driver's seat, Sgt. Bryan went to the driver's side door and pulled out his baton. He broke the window so he could reach inside and unlock the driver's door. Defendant got the van into gear and “floored it.” The van surged forward. Defendant grabbed the steering wheel and turned it toward Sgt. Bryan, who was struck in the left side by the van. He was knocked about eight feet into the ditch. The van also entered the ditch and got stuck.

Defendant jumped out of the van and ran south along the centerline of the highway, trying to flag down northbound traffic. He approached a white van and tried to enter it, which caused the driver to speed away. The next vehicle was a Toyota driven by Rebecca May. When she stopped, Defendant opened the driver's door. He grabbed May's arm and tried to pull her out of her car. She was able to jerk loose and drive away. Defendant continued running, and Sgt. Bryan followed in his patrol car. Two tow truck operators arrived and joined in the pursuit. With their assistance, Sgt. Bryan was able to corner Defendant. He was finally subdued after receiving two bursts of pepper spray in his face.

After Defendant was arrested and placed in handcuffs, he was searched. In his back pocket, Sgt. Bryan found a wallet and a checkbook. Both items belonged to Ashley Erdman. The wallet contained her driver's license, social security card, a Commerce credit card, a Commerce debit card and a Buckle credit card bearing her name. The wallet also contained a Sears credit card belonging to George Sarson. Sgt. Bryan determined that the white Ford Freestar van was owned by Stephanie Hallet.

On Friday, February 2nd, Sarson's Montero was found behind the Snodgrass Body Shop. Sarson's driver's license and Sears credit card were returned to him by the MSHP. Sarson did not know Defendant and had not given him permission to possess Sarson's license or credit card. Thereafter, the MSHP returned the Ford Freestar van to Hallett and Erdman's belongings to her. Hallett did not know Defendant and had not given him permission to take the vehicle. Erdman did not know Defendant and had not given him permission to possess her credit card.

In an amended information, Defendant was charged with the following offenses:

Count I: The class A felony of first-degree assault on a law enforcement officer for attempting to kill or cause serious physical injury to Sgt. Bryan by striking him with a motor vehicle.

Count II: The class D felony of resisting Sgt. Bryan's efforts to arrest Defendant by using or threatening the use of physical force or violence.

Count III: the class C felony of first-degree tampering for knowingly operating Hallett's van without her consent.

Count IV: the class C felony of stealing a credit card by appropriating Erdman's credit card.

Count V: the class C felony of stealing a credit card by appropriating Sarson's credit card.

Count VI: the class D felony of attempted stealing of a motor vehicle for trying to pull May from her motor vehicle and take it.

Count VII: the class C felony of first-degree tampering for knowingly defacing Crandon's Mazda.

The amended information also alleged that Defendant was a prior offender with three felony convictions.

Defense counsel filed a motion to dismiss Counts IV, V and VI as improperly joined. Counsel filed another motion asking that all seven counts be severed and tried separately. The trial court overruled both motions. After a jury trial, Defendant was found guilty on all charges. This appeal followed.

Point I

In Defendant's first point, he contends the trial court erred by failing to dismiss Counts IV and V. Defendant argues that these two counts, which dealt with the appropriation of the credit cards belonging to Sarson and Erdman, were improperly joined with the remaining counts.

The joinder of criminal offenses is governed by § 545.140 and Rule 23.05. State v. Love, 293 S.W.3d 471, 475 (Mo.App.2009). In relevant part, the statute states:

Notwithstanding Missouri supreme court rule 24.07, two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or infractions, or any combination thereof, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

§ 545.140.2. The rule similarly provides...