State v. Jones, s. WD

• Decision Date: 17 August 1993
• Docket Number: Nos. WD,s. WD
• Citation: 863 S.W.2d 353
• Parties: STATE of Missouri, Respondent, v. Joseph M. JONES, Appellant. 45466, WD 46742.
• Court: Missouri Court of Appeals

Page 353

863 S.W.2d 353

STATE of Missouri, Respondent, v. Joseph M. JONES, Appellant.

Nos. WD 45466, WD 46742.

Missouri Court of Appeals Western District.

Aug. 17, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Sept. 28, 1993.

Application to Transfer Denied Nov. 23, 1993.

Robert E. Steele, Jr., Asst. Appellate Defender, Kansas City, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Millie Aulbur, Asst. Atty. Gen., Jefferson City, for respondent.

Before FENNER, P.J., and SPINDEN and SMART, JJ.

PER CURIAM.

Joseph M. Jones appeals his convictions for kidnapping in violation of § 565.110, RSMo 1986, and for first degree trespassing in violation of § 569.140, RSMo 1986. Jones also appeals the denial of his Rule 29.15 motion. Appellant received a sentence of ten years imprisonment for kidnapping and six months for trespassing. The sentences were ordered to run concurrently. The judgments are affirmed.

Veronica Woodson testified at trial that she and Mr. Jones had lived together, along with her three young children, for a total of ten months between September, 1989 and June, 1990. On June 15, 1990, Ms. Woodson had Mr. Jones removed from her apartment by the police after he threatened her with a .38 automatic pistol. On June 17, Ms. Woodson applied to the Circuit Court for a domestic protective order against Mr. Jones to prevent him from having any contact with her.

On June 21, however, Mr. Jones drove up beside Ms. Woodson while she was walking from her home to catch a bus. Ms. Woodson testified that he grabbed her by the wrists, placed her in the car he was driving, and locked all the doors. He then drove at a high rate of speed to his sister's home. Mr. Jones unlocked the doors and, according to the testimony, told Ms. Woodson that he was going to kill her and her children. She jumped out of the car and ran down the street yelling for help. Mr. Jones pursued her and caught her at 36th and Main where a struggle ensued. An unidentified man in a white station wagon stopped and offered Ms. Woodson assistance. He drove her from the scene and left her with Officer David Ptomey. Officer Ptomey noticed that Ms. Woodson was distressed and crying, her clothes and hair were disheveled, and she was missing a shoe.

On June 25, the Circuit Court granted Ms. Woodson's petition for a domestic protective order. On June 26, however, according to the evidence, Ramondo Woodson, Ms. Woodson's son, saw Mr. Jones enter Ms. Woodson's apartment while she was at work and carry out a black object. The size of the object was consistent with that of a video cassette recorder. The family's VCR was later determined to be missing.

Appellant Jones was charged with one count of kidnapping, one count of burglary in the second degree, and one count of stealing over $150, in violation of § 565.110, § 569.170, and § 570.030, RSMo 1986, respectively. At the close of state's evidence, the Circuit Court sustained defendant's motion for judgment of acquittal as to the stealing charge, but overruled the motion as to the kidnapping and burglary charges. Defendant presented stipulated testimony concerning the location of the car which Ramondo Woodson saw appellant Jones drive on June 26. The stipulated testimony established that the car in question was at the police tow lot on June 26. Thus, the car could not have been driven by Defendant Jones on that same day, as asserted by Ramondo Woodson. Defendant also presented the testimony of Brenda Jones, appellant's sister, who testified she observed Ms. Woodson voluntarily get into the car with Mr. Jones and that she observed them drive off without incident. The jury found defendant guilty of kidnapping and of first degree trespassing, § 569.140, RSMo 1986, which had been submitted as a lesser included offense of burglary. Mr. Jones appeals from these convictions and the denial of his 29.15 motion.

Improper Joinder of Charges

Appellant argues that the trial court committed prejudicial error in allowing the state to join the charges of kidnapping, burglary, and stealing. Appellant contends that the three charges were not of similar character nor part of a common scheme and, moreover, that he was prejudiced by the joining of the charges because it allowed proof of the commission of unrelated crimes to be used against him.

Liberal joinder of criminal offenses is favored in order to achieve judicial economy. State v. Olds, 831 S.W.2d 713, 718 (Mo.App.1992). It is important, however, to avoid prejudice against the defendant which can result from the joinder of charges. Id. Two distinct points arise in appellate review when an appellant asserts that the trial court should have severed charges and ordered separate trials. State v. Sims, 764 S.W.2d 692, 696 (Mo.App.1988). First, the court must determine whether the offenses were properly joined. Id. Then, the appellate court must determine if the trial court should have ordered severance even though the joinder was proper in view of the possible prejudice against the defendant. Id. The propriety of joinder is determined as a matter of law and, thus, the trial court's decision in this regard is not entitled to deference. State v. Eiland, 809 S.W.2d 169, 171 (Mo.App.1991). Once joinder is determined to be proper, however, the decision whether to order severance of offenses to mitigate a clear prejudice is discretionary. Reversal by an appellate court on that issue requires an abuse of discretion by the trial court. Olds, 831 S.W.2d at 718; Sims, 764 S.W.2d at 696.

Missouri Supreme Court Rule 23.05 provides the following regarding the propriety of joinder:

All offenses that are of the same or similar character or based on two or more acts that are part of the same transaction or on two or more acts or transactions that are connected or that constitute parts of a common scheme or plan may be charged in the same indictment or information in separate counts.

In the present case, the state argued that the kidnapping incident on June 21 and the burglary/stealing incident on June 26 were properly joined because they were part of the defendant's single continuing motive to harass and terrorize Ms. Woodson. In State v. McCrary, 621 S.W.2d 266, 271 (Mo. banc 1981), the court ruled that "the essential test in determining whether a common scheme or plan exists, in a case involving a single defendant acting alone, is the requirement that all the offenses charged must be 'products of a single or continuing motive'."

Appellant argues that the McCrary holding should be interpreted to allow the finding of a common scheme only when all the offenses to be combined result from a single motive to commit a criminal offense. Appellant contends that the kidnapping could not properly be joined with the burglary or stealing charges because "terrorizing" is not a criminal offense and, therefore, could not be the single motive for a common scheme. The court in McCrary, however, used harassment and terrorizing as the single motive to link several separate charges together into a common scheme. Id. In McCrary, the defendant was charged with assault with intent to kill concerning a shooting on November 13, 1978, first degree arson concerning a fire-bombing on March 8, 1979, and carrying a concealed weapon concerning a stop by a police officer outside the victim's home on March 12, 1979. 621 S.W.2d at 268. Clearly, McCrary did not intend the single motive required for a common scheme to exclude "non-criminal" motives like harassment.

In the present case, the trial court's determination that the defendant's acts on June 21 and 26 were products of a single motive to harass Ms. Woodson was not erroneous. Appellant however, argues only that we should presume prejudice, and fails to articulate a showing of prejudice to the defendant resulting from the joinder. Because the charges could be properly joined, there is no presumption of prejudice. Appellant does not show an abuse of discretion. The trial court did not err in joining the kidnapping charge with the burglary and stealing charges. This point is denied.

Hearsay Testimony

Appellant next argues that the trial court committed prejudicial error by admitting Officer Ptomey's hearsay testimony. Hearsay evidence is "second hand" testimony about a statement made out of court offered to show the truth of the matters asserted, thus denying an opportunity for cross examination to determine the credibility of the out-of-court asserter. State v. Milner, 795 S.W.2d 621, 623 (Mo.App.1990). Thus, if the out-of-court statement is not offered as proof of the matter asserted but, instead, is offered to provide relevant background, then the statement is not hearsay and is admissible. Id. Further, even if hearsay testimony is erroneously admitted into evidence, the testimony must still be prejudicial to amount to reversible error. Id. When the state does not rely on the hearsay testimony to prove its case, the error of allowing the hearsay evidence is generally not prejudicial. Id. at 623-24.

The testimony in question in the present case occurred when Officer Ptomey testified at trial as to what happened after his conversation with Ms. Woodson and the man driving the white station wagon:

Q: Once he talked to you, what did you do?

A: Well, I heard a call come out over the air about a disturbance.

MR. HIGGINBOTHAM: Object to the hearsay, Judge.

MS. HILL: This goes to the officer's subsequent conduct. He's explaining what he did based on what he heard.

THE COURT: Is that the purpose for which it's being offered?

MS. HILL: Yes, it is Your Honor.

THE COURT: You want me to instruct?

MR. HIGGINBOTHAM: Judge, it's hearsay.

THE COURT: Want me to instruct the jury on the basis for which it's being received?

MR. HIGGINBOTHAM: Yes, please, Judge.

THE COURT: All right. It's being received strictly for the purpose of explaining the officer's subsequent conduct, not for the truth of the matter.

Officer Ptomey then testified that the...