State v. Mabry
| Decision Date | 12 May 2009 |
| Docket Number | No. ED 91163.,ED 91163. |
| Citation | 285 S.W.3d 780 |
| Parties | STATE of Missouri, Respondent, v. Robert B. MABRY, Appellant. |
| Court | Missouri Court of Appeals |
Robert Mabry ("Defendant") appeals from the judgment of the Circuit Court of the City of St. Louis convicting him of two counts of violating an order of protection and one count of stalking. Defendant claims that the trial court erred by: (1) allowing the State to admit evidence of letters Defendant sent to the victim, M.W., which constituted uncharged misconduct; (2) failing to grant Defendant's motion for a continuance after the State failed to comply with the trial court's order to produce the contact information of "Bob from Qdoba"; (3) overruling Defendant's motion for judgment of acquittal and sentencing Defendant for stalking because the evidence was insufficient to prove that Defendant repeatedly and purposefully harassed M.W. by yelling at her; (4) granting the State leave to amend the charging dates in the information with respect to the stalking charge; and (5) entering a judgment of conviction for stalking because the jury instruction was fatally defective because it included the definition of "stalking" under Mo.Rev.Stat. § 565.225.2 instead of the definition provided by Mo.Rev.Stat. § 445.020.1 We reverse in part and affirmed in part.
Defendant and M.W. met and began dating in November 2003. In July 2004, M.W. ended her relationship with Defendant because it "was the third time he went into a rage" and she could not handle it anymore. Following the break-up, Defendant began leaving "threatening" messages on M.W.'s answering machine and "breaking into [her] computer using [her] email accounts." To avoid further contact with Defendant, M.W. sought an ex parte order of protection in September 2004.
On November 10, 2005, M.W. obtained a full consent order of protection against Defendant and renewed it on May 22, 2006.2 Among other things, the protective order prohibited Defendant from threatening, abusing, or stalking M.W. or from communicating with M.W. in any manner or through any medium.
By mid-2006, the State had charged Defendant with five counts of violating the order of protection and one count of stalking.3 On August 6, 2007, Defendant was tried by a jury on all six counts. The jury found Defendant not guilty on two counts of violation of the protective order but was unable to reach a verdict on the other four counts. The trial court declared a mistrial on the four remaining counts, and scheduled a re-trial.
Three days prior to the re-trial, on November 9, 2007, the trial court ordered the State to produce to defense counsel the contact information of a person, referred to in the record only as "Bob from Qdoba", who was a suspected witness to the events pertaining to one of the counts of violation of a protective order. Because the State did not possess "Bob's" information, the State filed a nolle prosequi as to the count connected with "Bob." On the day Defendant's trial was scheduled to begin, defense counsel moved for a continuance because the State had not produced "Bob's" information. In response, the prosecutor told the trial court that the State did not have "Bob's" information and was not calling him as a witness because the State had dismissed the count relevant to "Bob". The trial court denied the motion for continuance concluding that Defendant was not prejudiced because the events "Bob" allegedly witnessed no longer related to a charged offense.
Later that day, on November 13, 2007, a jury-trial on the remaining three counts began as scheduled. Viewed in the light most favorable to the verdict, the evidence at trial revealed the following:
Between August 2005 and March 2006, M.W. received four anonymous letters containing information which led her to believe that they were written and sent by Defendant. The first letter, received in August 2005, stated that if "you don't drop this now" private pictures of M.W. and excepts from her personal journal would "start showing up" at certain bars, M.W.'s work, and to specific addresses of friends and family from M.W.'s address book. After receiving the letter, M.W. felt "extremely threatened" because she received the letter only a few weeks before a hearing for her protective order against Defendant.
In October 2005, M.W. received the second letter, which referred to an occasion where M.W. had met with several male friends at a bar the previous week. M.W. testified that after receiving this letter she felt "stalked, threatened, in danger, [and] in danger for [her] friends since he was obviously following them as well."
In February 2006, M.W. received the third letter which mentioned the names of M.W.'s executive director and supervisor from her work. The letter also commented, "Got to work a little late today, huh[?]" Because she had in fact left for work fifteen minutes later than usual the day she received the letter, M.W. again felt "threatened, stalked, watched, afraid, and afraid for going to work."
In March 2006, M.W. received the fourth letter which referenced an occasion when M.W. had visited a male friend at a park near her house. M.W. testified that this letter caused her to feel that she was "still being watched ... [and] afraid that in her own neighborhood [she was] being watched closely."
After sending the letters, Defendant confronted M.W. in person on two separate occasions. First, on April 6, 2006, as M.W. was driving to work, she saw Defendant drive past her in the opposite direction. About fifteen minutes later, while M.W. was stopped at a red light, Defendant pulled up next to her, "rolled his window down, stuck his head out the window, and [ ] scream[ed] at [her]." M.W. kept her windows rolled up and indicated to Defendant that she could not hear him. Following the encounter, M.W. continued on her way to work and reported the incident to the police several weeks later.
The second incident occurred on June 2, 2006 while M.W. was driving a client who was diagnosed with paranoid schizophrenia. As M.W. was waiting in the exit lane to enter the highway, she saw Defendant drive past and turn into the exit lane two cars ahead of her. After seeing Defendant, M.W. "began shaking" and became "very scared" but did not want to distress her client. After both M.W. and Defendant turned on the highway, M.W. drove slowly so that Defendant could advance down the highway and she could "proceed without being followed or noticed." M.W. then noticed that Defendant had slowed down and was in the right lane exiting the highway. As M.W. passed Defendant, he swerved into her lane missing her car by approximately three feet. While Defendant followed her, M.W. drove quickly up the next exit ramp and held her cell phone up so that Defendant could see that she was about to call 9-1-1. After she held up her cell phone, M.W. checked her rear-view window and saw that Defendant had turned and drove the other direction. Following the incident, M.W. dropped off her client and immediately called the police. Soon thereafter, the police arrested Defendant.
At the close of the evidence, the jury returned guilty verdicts on all counts. Specifically, the jury found Defendant guilty of two counts of violating the protective order for yelling at M.W. on April 6, 2006 and swerving at her car on June 2, 2006, and guilty of one count of stalking for "repeatedly and purposefully harass[ing] [M.W.] by yelling at her" between March 21, 2006 and June 2, 2006. Thereafter, the trial court sentenced Defendant to three concurrent sentences of 270-days imprisonment. Defendant appeals.
In his first point, Defendant contends that the trial court abused its discretion in permitting the State to introduce evidence of the four letters received by M.W. Specifically, Defendant claims that the letters were inadmissible because they: (1) had no probative value as they constituted evidence of uncharged crimes that occurred outside the charging period, and (2) lacked a proper foundation since they had nothing "in their contents or on their surface" to connect them with Defendant.
A trial court possesses broad discretion in the admission of evidence. State v. Chism, 252 S.W.3d 178, 182 (Mo.App. W.D.2008). "A trial court abuses its discretion when the decision is against the logic of the circumstances and when `it is so arbitrary and unreasonable as to shock the sense of justice and indicates a lack of careful consideration.'" Id. (quotation and alteration omitted). This court will reverse the decision of the trial court only when it has abused its discretion and the defendant is thereby prejudiced. Id.
As Defendant correctly asserts, a criminal defendant can only be tried for the offenses which he or she is charged, and evidence of uncharged crimes, wrongs, or acts is inadmissible for the purpose of showing a defendant's propensity to commit such crimes. State v. Williams, 652 S.W.2d 102, 110 (Mo. banc 1983); State v. Bernard, 849 S.W.2d 10, 13 (Mo. banc 1993). However, evidence of uncharged misconduct may be properly admitted when such evidence is logically and legally relevant to proving the crime charged— i.e., it has a legitimate tendency to establish the defendant's guilt of a charged crime and its probative value outweighs its prejudicial effect. Bernard, 849 S.W.2d at 13. Generally, evidence of uncharged misconduct is admissible when it "tends to establish": (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan; or (5) identity of the defendant. Id. (quoting State v. Sladek, 835 S.W.2d 308, 311 (Mo. banc 1992)) (quoting ...
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