State v. McClanahan

• Decision Date: 26 August 1997
• Docket Number: No. WD,WD
• Citation: 954 S.W.2d 476
• Parties: STATE of Missouri, Respondent, v. Tina S. McCLANAHAN, Appellant. 51634.
• Court: Missouri Court of Appeals

Page 476

954 S.W.2d 476

STATE of Missouri, Respondent, v. Tina S. McCLANAHAN, Appellant.

No. WD 51634.

Missouri Court of Appeals,

Western District,

En Banc.

Aug. 26, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Sept. 30, 1997.

Application to Transfer Denied

Nov. 25, 1997.

Mary Flanagan-Dean, Asst. Public Defender, Hannibal, for Appellant.

Scott A. Hayes, Asst. Pros. Atty., Randolph County, Moberly, for Respondent.

Before ULRICH, C.J., and LOWENSTEIN, BERREY, BRECKENRIDGE, HANNA, SPINDEN, SMART, ELLIS, LAURA DENVIR STITH, EDWIN H. SMITH and HOWARD, JJ.

HANNA, Judge.

The defendant, Tina S. McClanahan, appeals from her conviction, by a jury, of interference with custody, § 565.150, RSMo 1994, and sentence of 90 days in jail. The defendant does not challenge the sufficiency of the evidence. The appeal focuses on three questions asked by the state concerning the defendant's treatment for drug abuse, prior arrests, and her attempt to terminate her parental rights. She complains that the questions portrayed her as a person of low moral character, resulting in a guilty verdict and an "excessive 90 days in jail." She requests a reversal of her conviction and remand of the case for a new trial.

On October 19, 1993, Sasha Clarkson was made a ward of the Randolph County Juvenile Court. The court placed physical and legal custody of Sasha with her father, Robert Clarkson. Pursuant to this order, the defendant was granted one hour of supervised visitation each week in the Moberly office of the Division of Family Services. Although it is subject to dispute, the defendant claims that she had not received visitation during the preceding six months. She had filed two contempt motions with the court against Mr. Clarkson and the Division of Family Services regarding her visitation rights.

On November 16, 1994, the defendant picked up Sasha at the Macon Elementary School. She requested supervised visitation from the Randolph County Juvenile Office and the Department of Family Services. Apparently she was unsuccessful. She took Sasha from Macon to her home in Moberly. That evening, the police went to the defendant's home to execute a 24-hour protective custody order for Sasha. She responded by yelling obscenities at the police and refused to relinquish custody of Sasha. Eventually the police convinced her to accompany them to the police station with her daughter. At the station, she still refused to voluntarily return Sasha. The police sought assistance from the Randolph County juvenile officer and the DFS worker. They were unable to help. After approximately 1 1/2 hours of unsuccessful negotiations, four police officers physically removed the child from the defendant's custody.

Two of the three questions, those regarding her prior arrests and her offer to terminate her parental rights, may be considered together. The defendant states in her point relied on that "the state also asked other improper questions regarding prior arrests, and her attempts to terminate her parental rights ...," which denied her a fair trial.

When the questions were asked about the defendant's prior arrests ¹ and her offer to terminate her parental rights, counsel objected and the court sustained the objections. Admittedly, questions, without answers, may be prejudicial. State v. Dunn, 577 S.W.2d 649, 651 (Mo. banc 1979). However, the general precept applies that, when an improper question is asked but not answered, no prejudicial error occurs. State v. Gilmore, 681 S.W.2d 934, 942 (Mo. banc 1984). In those situations in which the question alone may, in the opinion of counsel, create an unfavorable consequence, counsel may ask for further relief. In this case, there was no request for any other relief after the court's ruling in her favor. When a defendant's objection to a question is sustained and there is no further request for relief or motion directed to the court, nothing is preserved for review on appeal. State v. Harvey, 766 S.W.2d 175, 177 (Mo.App.1989). ² Additionally, the defendant's after trial motion raised only two issues, the sufficiency of the evidence to sustain the conviction and the court's ruling on the state's question about her drug treatment. She did not raise any claim of error regarding the unanswered questions. In order to preserve allegations of error for appellate review, they must be included in the motion for new trial. Rule 29.11(d); State v. Watts, 813 S.W.2d 940, 943 (Mo.App.1991).

Finally, it is incumbent upon the defendant to identify in what manner the trial court erred as it relates to the two unanswered questions. The defendant has failed to comply with Rule 30.06(d) by setting forth "what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous,...." She complains that "the state asked other improper questions regarding prior arrests and her attempts to terminate her parental rights...."

The scope of the issue on appeal is determined by the point relied on. State v. Talbert, 873 S.W.2d 321, 323 (Mo.App.1994). The defendant has not identified, either in the point relied on or in the argument portion of the brief, what actions or rulings of the trial court are sought to be reviewed or what relief the trial court failed to grant or should have taken. See State v. Nenninger, 872 S.W.2d 589, 589, (Mo.App.1994), cert. denied, 513 U.S. 1022, 115 S.Ct. 589, 130 L.Ed.2d 503 (1994). The defendant received all of the relief she requested when the court sustained her objection, and she has failed to preserve the issue of the unanswered questions at the time of trial, in her after-trial motion, and on appeal.

More troublesome is the prosecutor's question concerning the defendant's treatment for drug abuse. The defendant's objection was overruled. Drug treatment generally does not go to any element of the crime that the state is obligated to prove. The basis for its admission was to attack the witness's credibility. The defendant maintains that her prior treatment for drug abuse was irrelevant and was introduced solely to show that she was a person of low moral character.

The testimony about the defendant's drug treatment came about in the following manner. The state asked the defendant about her prior convictions. She testified that she had only one conviction, which had occurred approximately 13 years earlier. The state then asked the defendant if she had pleaded guilty in 1995 to driving under the influence of narcotics in Iowa. The defendant stated, "that was kind of a screwed up deal." She then stated, "I signed a paper, but I couldn't make it to court ... they told me that the charges would be dropped...." She was asked if she had a copy of the lab report concerning the DUI, and she answered, "as far as I know, nothing has come back in the lab report except for nicotine and caffeine." The state then asked the defendant if she had ever received treatment for drug abuse. Counsel objected on relevancy grounds. The court overruled the objection and allowed the answer, which included three treatment programs.

"Evidence is relevant if it tends to prove or disprove a fact in issue, or if it corroborates evidence that is relevant and bears on a principal issue." State v. Bounds, 857 S.W.2d 474, 477 (Mo.App.1993). The trial court is vested with broad discretion in ruling on questions of relevancy, and the appellate court should not interfere with the trial court's ruling in the absence of a clear showing of an abuse of discretion. State v. Brown, 718 S.W.2d 493, 493-94 (Mo. banc 1986).

If a defendant chooses to testify, prior convictions, including pleas of guilty, may be exposed and considered by the jury to determine her credibility. State v. Light, 871 S.W.2d 59, 62-63 (Mo.App.1994); § 491.050, RSMo 1994. It is unclear from the record whether the defendant's prior treatment for drug abuse had any connection to her alleged conviction in Iowa. However, given the purpose of such evidence, the details of the admitted prior convictions are unnecessary. State v. Silcox, 694 S.W.2d 755, 757 (Mo.App.1985). When the state questions a defendant about prior convictions, it is permitted to elicit the nature, dates, and places of the occurrence, as well as the sentences resulting therefrom. Light, 871 S.W.2d at 63. "In literary terms who, what, when and where are in order but why and how are not." Id. Even if the state's question concerning her prior drug treatment was the result of this alleged conviction, the question was beyond the scope of permissible inquiry.

The state contends that the defendant asserted her good character through her testimony set forth above. However, first, it was the state that asked about her prior conviction. Second, we do not agree that it is an assertion of good character that one has not been convicted of a crime in 13 years or that the defendant thought the DUI charges would be dropped. The evidence of her drug treatment was irrelevant, and the trial court erred in permitting the state to ask about it. The question now becomes whether the drug treatment testimony was so prejudicial as to warrant a reversal of the conviction. See State v. Debler, 856 S.W.2d 641, 649 (Mo. banc 1993). ³

The defendant was charged with interference with custody, § 565.150, RSMo 1994, which requires a showing that a person, "knowing that he has no legal right to do so, ... takes or entices from legal custody any person entrusted by order of a court to the custody of another person or institution."

The evidence of the defendant's guilt was as follows. A court previously had ruled that the defendant was not a fit custodian of her five year old daughter in an unsupervised setting and, therefore, had entrusted the physical and legal custody of Sasha with her father. The defendant testified that, although the court had awarded her only one hour of supervised visitation per week, she took Sasha off of the school bus and drove her to her...