State v. McClanahan
Citation | 202 S.W.3d 64 |
Decision Date | 02 October 2006 |
Docket Number | No. 26935,26935 |
Parties | STATE OF MISSOURI, Plaintiff-Respondent v. TARA Y. McCLANAHAN, Defendant-Appellant. |
Court | Missouri Court of Appeals |
George W. Gilmore, Jr., for Appellant's.
Jeremiah W. (Jay) Nixon, Daniel N. McPherson, for Respondent's.
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.
(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.
Juanita Holderbaugh was interviewed by police officers Butch Amann and Scott Eakers on July 9, 2004. She gave the following written statement:
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, 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...
To continue reading
Request your trial-
State v. Overton, 28282.
...on appeal must be based upon the same objection that was made at trial and preserved in the motion for new trial. State v. McClanahan, 202 S.W.3d 64, 70 (Mo.App.2006). We will not convict a trial court of an error it was given no opportunity to correct. State v. Lewis, 243 S.W.3d 523, 525 7......
-
State v. Placke, SD 29207.
...their truth, did not affect the videotape's admissibility. Lyons, 951 S.W.2d at 594; Bowman, 741 S.W.2d at 11-12; State v. McClanahan, 202 S.W.3d 64, 69-71 (Mo.App.2006). Thus, the trial court did not abuse its discretion in allowing the jury to view the Our conclusion is amply supported by......
-
Veal v. Kelam
...the first time on appeal and will not convict the trial court of an error it was given no opportunity to correct." State v. McClanahan , 202 S.W.3d 64, 70 (Mo. App. S.D. 2006) (citing Brown v. Jones Store , 493 S.W.2d 39, 41 (Mo. App. 1973) ). Appellant concedes she did not object to the tr......
-
Veal v. Kelam
...the first time on appeal and will not convict the trial court of an error it was given no opportunity to correct." State v. McClanahan, 202 S.W.3d 64, 70 (Mo. App. S.D. 2006) (citing Brown v. Jones Store, 493 S.W.2d 39, 41 (Mo. App. 1973)). Appellant concedes she did not object to the trial......