State v. McClanahan

Citation202 S.W.3d 64
Decision Date02 October 2006
Docket NumberNo. 26935,26935
PartiesSTATE OF MISSOURI, Plaintiff-Respondent v. TARA Y. McCLANAHAN, Defendant-Appellant.
CourtMissouri Court of Appeals

George W. Gilmore, Jr., for Appellant's.

Jeremiah W. (Jay) Nixon, Daniel N. McPherson, for Respondent's.

JOHN E. PARRISH, Judge.

Tara Y. McClanahan (defendant) appeals convictions of arson in the first degree, § 569.040,1 attempted murder in the second degree, §§ 565.021 and 564.011, and burglary in the first degree, § 569.160. This court affirms.

In reviewing defendant's conviction, this court considers the evidence in the light most favorable to the verdict rendered by the jury. State v. Ternetz, 740 S.W.2d 713, 714 (Mo.App. 1987).
All evidence and inferences that tend to support the verdict are accepted as true. State v. Brown, 660 S.W.2d 694, 698-99 (Mo.banc 1983). Evidence and inferences to the contrary are disregarded. Id. "The question is whether the evidence, viewed in a light most favorable to the State, is sufficient to support the verdict." Id. at 699, citing State v. Story, 646 S.W.2d 68, 72

(Mo.banc 1983).

State v. Norris, 813 S.W.2d 379, 380 (Mo.App. 1991).

State v. Morris, 844 S.W.2d 549 (Mo.App. 1992). See also State v. Xia, 60 S.W.3d 28, 30 (Mo.App. 2001).

Defendant's mother, Billie Davis, was in her home at Jackson, Missouri, the evening of June 17, 2004. She awoke to find a curtain in her bedroom on fire. She tried to throw water on the fire from a glass she had at her bedside, but was unable to extinguish the fire. She then attempted to put out the fire by hitting the flames with a pillow. Feathers from the pillow caught fire and stuck on Ms. Davis' arm and hip. Ms. Davis tripped and fell. Due to physical problems she experiences, she was unable to get up. She reached a walker and, with it, slid across the floor. As she entered the family room to the house, she saw a pair of shoes and was kicked in the head. She reached a phone but it would not work. She got into her kitchen, entered the garage from the kitchen, and opened the garage door with a remote control button.

Two people entered the garage from outside Ms. Davis' home and tried to assist her. Police officers also arrived. Ms. Davis was carried from the garage and taken to a hospital by ambulance. She was treated for burns and smoke inhalation. She remained hospitalized for a week and required breathing treatments for about two months. After her release from the hospital, Ms. Davis spent about four months at a life care center and another three months at Drury Lodge while her house was repaired.

In order to assist Ms. Davis, defendant was permitted to write checks from Ms. Davis' checkbook to buy groceries and pay Ms. Davis' bills. In June 2004, Ms. Davis' checking account was overdrawn; nearly 40 checks drawn on the account had been returned. Charges had been made to the account for the insufficient funds checks.

Defendant began dating Mark Messmer the end of May 2004. He and defendant began living together about a week after he met her. During the time they lived together, he and defendant passed checks that were drawn on Ms. Davis' account.

A bank employee talked to Ms. Davis about her account the week before June 17. Ms. Davis planned to come to the bank and go over the account with the employee. Ms. Davis had arranged a withdrawal from an IRA account she maintained at Edward Jones. She had a check for $3,000 she intended to deposit in her bank checking account. The check was in her home at the time of the fire.

Mark Messmer heard defendant talking on the telephone with Juanita Holderbaugh, a friend of defendant's, in the early morning hours of June 17, 2004. After the conversation ended, defendant told Mr. Messmer that Ms. Holderbaugh was coming to pick her up. Juanita Holderbaugh picked up defendant. Defendant returned sometime later. Mr. Messmer was asked the following questions and gave the following answers about what occurred.

Q. When the [d]efendant returned what did she say?
A. She come in and I was kind of coming down the hallway and she said, well, the old bitch should be dead now.
Q. Did you ask her to clarify?
A. I said what do you mean? She said, well, they went over to her mom's and parked up the road from there and went in the back door and through the basement and supposedly went into her mom's bedroom and set the bed and the bed sheets and stuff like that on that fire.

Juanita Holderbaugh was interviewed by police officers Butch Amann and Scott Eakers on July 9, 2004. She gave the following written statement:

On June 17, 2004 [defendant] and I got together about 1:30 a.m..[sic] She was dressed in black, and I was dressed in brown and black. I drove to her house. We took Miss Davis' car to Miss Davis' house. We walked to the sliding glass doors under the porch around the back of the house and we walked up the stairs. And [defendant] walked to the front room and placed a candle on the end table and then to the kitchen for a $3,000.00 check that Miss Davis received in the mail that day.
She set it by my shoes at the top of the stairs. Then we walked to the bathroom, down the hall from Miss Davis' room and [defendant] lit the candle. Then we crawled to Miss Davis' room and [defendant] was in the room. I was in the hall. I handed the candle to [defendant]. And she set the bed and curtains on fire. I backed off and hear Miss Davis up getting water. I then proceeded out the hall to the stairs with [defendant] behind me. [Defendant] said hurry, Juanita, hurry. We got out the door and went back to [defendant's].
I went home and called [defendant] telling her the garage door was open and there were flames. I went home and took a shower and got in bed. About 2:30 to 3:30 we, me and Ron, got a phone call from Mark stating mom's, Miss Davis' house caught on fire and we needed to meet [defendant] over there.
So we went to the house and Miss Davis was taken to Saint Francis Hospital for treatment. I called my parents to take my daughter and we went to the hospital. The reason for setting the house on fire was to stop Miss Davis from going to the bank the next day. Miss Davis noticed some money missing out of her checking account. She wanted to get to the bottom of it. [Defendant] was afraid that Miss Davis would find out she was taking her money.

Later on the day of the fire, defendant took a check in the amount of $3,000 from Edward Jones, payable to Billie Davis, to the bank. She deposited $2,600 from the proceeds of the check and received $400 cash.

Defendant's first point on appeal argues that the trial court abused its discretion in overruling defendant's motion for new trial "in that the Trial Court erred in allowing Juanita Penfield to repeat statements allegedly made by Billie Davis including that Ms. Davis recognized [defendant's] shoes and [defendant's] giggling on the night of the fire because the alleged statements were hearsay and were highly prejudicial to [defendant] in that the only testimony placing [defendant] at the scene of the crime was this hearsay evidence and the unreliable testimony of Juanita Holderbaugh."

Point I asserts that "[i]t was an abuse of discretion for the Trial Court to overrule [defendant's] Motion for New Trial. . . ." "It has long been the settled law that the denial of an after trial motion is not an appealable order but that appeal must be taken from the judgment to which the motion was directed." Pittman v. Reynolds, 679 S.W.2d 892, 893 (Mo.App. 1984). See also Roberts v. Roberts, 800 S.W.2d 91, 93 (Mo.App. 1990). Defendant's Point I continues, however, after asserting error in denying the motion for new trial, and argues error was committed by the trial court allowing Juanita Penfield to repeat statements allegedly made by Billie Davis. The allegation of error directed to the admission in evidence of that testimony will be addressed.

The testimony about which Point I complains was that of Juanita E. Penfield. Ms. Penfield is an employee of Edward Jones. She stated she was "an investment representative-stock broker for the company." Ms. Penfield had visited Ms. Davis "seven to ten days" after the fire. She visited her at a life care center where Ms. Davis was staying. Ms. Penfield was asked, "And did you have a discussion about some shoes that Billie Davis might have seen as she was crawling on the floor of her house while it was on fire?" Defendant's attorney objected that the question called for hearsay. The trial court overruled the objection.

Ms. Penfield answered, "While I was there in her room meeting her just as a friend to see if she was all right, to see how she was doing, she through her tears and crying said she couldn't understand how her daughter could do this. And I asked her innocently, . . . what made you think it was your daughter? She said as I was crawling down the hall I heard them laughing, giggling, and I also was kicked in the face and I recognized the shoes." Ms. Penfield was asked, "Did she recognize the giggle?" Ms. Penfield answered, "She said she recognized it to be her daughter, [defendant]."

As defendant asserts, the testimony of Ms. Penfield as to what she said she was told by Ms. Davis was hearsay. "A hearsay statement is any out-of-court statement that is used to prove the truth of the matter asserted and that depends on the veracity of the statement for its value." State v. Sutherland, 939 S.W.2d 373, 376 (Mo.banc), cert denied, 522 U.S. 871 (1997). Hearsay statements are generally inadmissible. Id.

The underlying rationale for the hearsay rule is for the purpose of securing the trustworthiness of the assertions. State v. Harris, 620 S.W.2d 349, 355 (Mo.banc 1981). Courts generally exclude hearsay because the out-of-court statement is not subject to cross-examination, is not offered under oath, and the fact-finder is not able to judge the declarant's demeanor and credibility as a witness. Bynote v. National Super Markets, Inc., 891 S.W.2d 117, 120
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