State v. Page, No. ED 92706 (Mo. App. 3/16/2010)

• Decision Date: 16 March 2010
• Docket Number: No. ED 92706.,ED 92706.
• Parties: STATE OF MISSOURI, Respondent, v. LANDERS PAGE, Appellant.
• Court: Missouri Court of Appeals

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STATE OF MISSOURI, Respondent,
v.
LANDERS PAGE, Appellant. No. ED 92706. Court of Appeals of Missouri, Eastern District, Division Four. March 16, 2010.

NOTE: THIS OPINION IS SUBJECT TO MODIFICATION OR TRANSFER TO THE SUPREME COURT.

Appeal from the Circuit Court of the City of St. Louis, Honorable L. Michael Mullin III.

KURT S. ODENWALD, Presiding Judge.

Introduction

Landers Page (Defendant) appeals from the trial court's judgment, following a jury trial, of one count of class C felony stealing, in violation of Section 570.030, RSMo Cum. Supp. 2006,¹ and one count of class A misdemeanor stealing, in violation of Section 570.030. Finding Defendant to be a prior and persistent offender as defined in Section 558.016, the trial court sentenced Defendant to fifteen years on the first count and a concurrent one year term on the second count. We affirm Defendant's conviction and sentence but remand the case to correct a clerical mistake in Defendant's sentence and judgment form.

Background

The State of Missouri (State) charged Defendant with two counts of stealing, in connection with his alleged actions on December 19, 2007. On Count I, a class C felony, the

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State averred that Defendant stole Jeanne Silvestrini's (Silvestrini) credit card without her consent and with the purpose to deprive her thereof. On Count II, a class A misdemeanor, the State averred that Defendant stole Silvestrini's purse, an item valued at less than $500, without her consent and with the purpose to deprive her thereof. Furthermore, the State's indictment charged Defendant as a prior and persistent offender, in that Defendant pleaded guilty to two counts of felony stealing on February 23, 2005, and pleaded guilty to first degree felony robbery on January 26, 1987.

Defendant's jury trial took place January 21-22, 2009. During trial, Defendant presented no witnesses on his behalf. The State's evidence consisted of the following:

Silvestrini testified that she worked as an administrative coordinator at Washington University School of Medicine. Her office was located on the seventh floor of the Clinical Science and Research Building (CSRB) in the Barnes Jewish Hospital medical complex. On the morning of December 19, 2007, she stepped out of her office for a moment to retrieve a document from printer in a nearby office. Upon her return, she saw a man whom she did not recognize quickly leave her office and exit into the seventh floor stairwell. She approximated the distance between herself and the man to be three feet, observed that the man was wearing a "very recognizable" blue sweater with multi-colored stripes, and believed the man to be concealing something that he was holding. Silvestrini then immediately checked her office and noticed that her purse, which she kept in her desk drawer, was missing. She followed the man into the stairwell, saw him a flight below her, and yelled for him to give her purse back. At this point, the man "immediately started running at a pretty fast pace." She initially continued after the man, but then returned to her office and called the building's security officers. After she got off the phone with security, one of her co-workers, Nathan Felix (Felix), went down the stairwell to

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look for the man. In court, Silvestrini identified Defendant as the man she saw exiting her office and running down the stairwell.

Greg Farnham (Farnham), a security response officer for the Washington University School of Medicine, testified that, around 10:00 a.m. December 19, 2007, he received a dispatch regarding a suspected theft at the CSRB. The dispatch described the suspect as a black male wearing a dark colored sweater with bright stripes who was approximately six feet tall. Farnham and fellow response officer Daniel Chettle (Chettle) canvassed the area around the CSRB. Chettle encountered a man fitting the dispatch's description in the lobby which connects the CSRB with the Pediatrics Building. Chettle and Farnham took the man into their custody. In court, both Chettle and Farnham identified Defendant as the man they apprehended.

While Chettle detained Defendant, Felix, who had followed Defendant into the lobby, led Farnham to a trash can located in the CSRB's third floor men's restroom. Because the stairwell exits on both the first and second floors were blocked, the third floor was the lowest floor from which a person could exit the stairwell. Farnham emptied the trash can and sorted its contents. Inside, he found Silvestrini's driver's license, a purse, and other items which apparently had been removed or had fallen out of the purse. Farnham then placed the items which he believed to come from the purse in another trash bag, and he carried the trash bag and purse to Silvestrini's office. Silvestrini identified the purse as belonging to her. When Silvestrini looked in the purse, she noticed that her credit card had been removed from her wallet but was still in the purse. Though every item within her purse appeared out of place, Silvestrini testified that no item was missing.

Farnham then escorted her to the Protective Services office, where security personnel were detaining Defendant. At that time, Silvestrini identified Defendant through a two-way

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mirror as the man she saw emerging from her office and running down the stairwell. At trial, she repeated that she was "[o]ne hundred percent positive" that the man detained at the Protective Services office was Defendant.

On January 21, 2009, before the case was submitted to the jury and outside the jury's presence, the trial court held a hearing to determine Defendant's prior and persistent offender status. On the record at this hearing, the State alleged that Defendant had previously pleaded guilty to three felonies. The State listed each felony, each cause number, and each date that the Defendant pleaded guilty. Thereafter, the trial court asked Defendant under oath and on the record if the convictions read by the State were indeed his prior convictions, to which Defendant affirmatively agreed. The trial court then found "[D]efendant to be a prior and persistent offender for the sake of punishment."

On January 22, 2009, the jury found Defendant guilty of the charges of stealing a credit card (Count I) and stealing an item under $500 (Count II). Defendant filed a Motion for Judgment of Acquittal, which the trial court denied. On February 6,² Defendant filed a Motion for Acquittal or in the Alternative for a New Trial, which the trial court denied. The trial court sentenced Defendant on February 27, ordering Defendant to serve a term of fifteen years for Count I and a concurrent one year term for Count II.

Defendant filed his Notice of Appeal on March 5, 2009. This appeal follows.

Points on Appeal

Defendant raises two points on appeal. In his first point, Defendant claims that the trial court erred in finding him to be a prior and persistent offender because the State did not establish sufficient facts to warrant a finding beyond a reasonable doubt that he was a prior and persistent offender.

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In his second point, Defendant claims that the trial court erred in denying his motion for judgment of acquittal at the close of the evidence because there was insufficient evidence to support the verdicts. Defendant alleges that the State failed to establish beyond a reasonable doubt that he stole a credit card and a purse.

We will review each of Defendant's points separately.

Discussion

I. Point 1 — Trial Court's Finding That Defendant Was a Prior and Persistent Offender

In Defendant's first point, he argues that the trial court erred in finding him to be a prior and persistent offender because the State did not establish sufficient facts to warrant a finding beyond a reasonable doubt that he was a prior and persistent offender. Specifically, Defendant contends that the State failed to establish his prior felony convictions because the State did not introduce into evidence any certified and authenticated convictions, because the trial court did not take judicial notice of court records physically before it, and because Defendant never consented to the contents of any of his records being admitted into evidence.

A. Plain Error Standard of Review

Defendant concedes that, because he failed to object to the trial court's finding that he was a prior and persistent offender at trial and in his motion...