State v. Presberry

• Decision Date: 09 December 2003
• Docket Number: No. ED 81141.,ED 81141.
• Citation: 128 S.W.3d 80
• Parties: STATE of Missouri, Plaintiff/Respondent, v. Kevin L. PRESBERRY, Defendant/Appellant.
• Court: Missouri Court of Appeals

128 S.W.3d 80

STATE of Missouri, Plaintiff/Respondent, v. Kevin L. PRESBERRY, Defendant/Appellant.

No. ED 81141.

Missouri Court of Appeals, Eastern District, Division One.

December 9, 2003.

Motion for Rehearing and/or Transfer to Supreme Court Denied February 11, 2004.

Application for Transfer Denied March 30, 2004.

Rebecca Kurz, Assistant Appellate Defender, Kansas City, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Andrea Mazza Follett, Assistant Attorney General, Jefferson City, MO, for respondent.

MARY K. HOFF, Judge.

Kevin L. Presberry (Defendant) appeals from the trial court's judgment entered following a jury trial. The jury found Defendant guilty of the five charged offenses,¹ convicting Defendant of first degree robbery in violation of Section 569.020 RSMo 2000,² second degree robbery in violation of Section 569.030, fraudulent use of a credit device in violation of Section 570.130, attempted first degree robbery in violation of Section 564.011, and first degree tampering in the operation of a motor vehicle in violation of Section 569.080.1(2). Prior to sentencing, the trial court granted Defendant's motion for judgment of acquittal with respect to the second degree robbery offense, and denied that motion with respect to stealing a credit card in violation of Section 570.030.3(3)(c), which the trial court found was a lesser included offense of second degree robbery. The trial court otherwise denied Defendant's post-trial motions and sentenced Defendant to concurrent terms of twenty-five years for first degree robbery, seven years for stealing a credit card, five years for fraudulent use of a credit device, ten years for attempted first degree robbery, and five years for first degree tampering in the operation of a motor vehicle. We reverse the trial court's judgment regarding the stealing a credit card, attempted first degree robbery, and first degree tampering offenses; and reverse and remand the judgment with respect to the first degree robbery and fraudulent use of a credit device offenses.

Background and Procedural History

Defendant was arrested on December 4, 2000, while driving a silver Tahoe near an Automated Teller Machine (ATM) on Fern Ridge. Contemporaneously with Defendant's arrest, the police also arrested William Tabb, who had been a passenger in the silver Tahoe, and was found near some bushes in the vicinity of the Fern Ridge ATM. The State charged Defendant with first degree robbery (Count I) and second degree robbery (Count II), respectively, in the robberies of Cynthia Bornhop (Bornhop) on November 11, 2000, and JungJoo Park (Park) on November 27, 2000, at the Fern Ridge ATM; and with fraudulent use of a credit device, specifically an ATM card, at a different ATM on November 28, 2000 (Count III). The State also charged Defendant with attempted first degree robbery at the Fern Ridge ATM (Count IV) and with first degree tampering in the operation of a motor vehicle, specifically a silver Tahoe, without the owner's consent (Count V), on December 4, 2000.

Neither Park nor Defendant testified at trial. The evidence presented at trial consisted of the testimony of: Bornhop; Officers Michael Youngblood, Thomas Taylor, and Brad Kelling, who were involved in the surveillance of the ATM and arrest of Defendant on December 4, 2000; Detective John Newsham and Officer Rich Muehlenbeck, who investigated the November incidents; Detective David Kopfensteiner, who made a composite of the suspect based on information from Bornhop; the general manager of Jim Butler Chevrolet, from which one or more Tahoes were taken in November 2000; the owner of the license plate found on the silver Tahoe; and two employees of the bank whose ATMs were the subject of the November and December incidents. Additionally, the State introduced the following exhibits during trial: a coat; two cellular phones; phone records pertaining to those two cellular phones; a pellet gun; a pair of binoculars; a black headband; an ATM withdrawal receipt; a photo lineup; a composite; photographs of Defendant taken in December 1998, May 1999, November 1999, and December 2000; a photograph of Tabb; three videotapes from the ATMs; various other photographs, including pictures of the Tahoe, of the ATMs, of an ATM deposit slip and deposit envelope, and pictures from recordings taken by the ATM video cameras during the November incidents; and documents indicating ATM card activity.

At the conclusion of trial, the jury found Defendant guilty of each of the charged offenses. Defendant then filed a motion for judgment of acquittal, or in the alternative, motion for new trial, as well as a pro se motion for new trial ("post-trial motions"). In part, Defendant asserted there was insufficient evidence on the charge of second degree robbery involving Park. The trial court granted Defendant's motion for judgment of acquittal as to the second degree robbery offense only. The trial court then found stealing a credit card was a lesser included offense of second degree robbery, and denied the motion for judgment of acquittal on the lesser included offense of stealing a credit card. In all other respects, the trial court denied Defendant's post-trial motions. This appeal followed the trial court's imposition of the concurrent sentences noted above and entry of judgment on the five offenses.

Defendant's Points on Appeal

Defendant raises five points on appeal. First, Defendant asserts the trial court plainly erred in permitting Officer Youngblood and Detective Newsham to testify that, in their opinions, the suspect in the videotapes and still photographs from the videotapes at the ATMs was Defendant, because that testimony invaded the province of the jury. Second, Defendant contends that, after sustaining his motion for judgment of acquittal on the second degree robbery offense, the trial court plainly erred in entering the judgment of conviction and sentencing Defendant for stealing a credit card, because the jury was not required to find each of the elements for that offense nor was there sufficient evidence for the jury to find each of those elements. Third, Defendant urges the trial court plainly erred by overruling Defendant's motion for judgment of acquittal and sentencing Defendant for attempted first degree robbery, because the State did not prove beyond a reasonable doubt that Defendant had the purpose to commit robbery or took a substantial step in the commission of first degree robbery. Fourth, Defendant claims the trial court plainly erred in overruling Defendant's motion for judgment of acquittal and sentencing Defendant for first degree tampering, because the State did not prove beyond a reasonable doubt that Defendant operated the vehicle knowing he did so without the consent of the owner. Fifth, Defendant asserts the trial court plainly erred in allowing the State to elicit testimony from Officer Taylor that Defendant did not ask why he was under arrest when he was arrested, because such testimony was an improper use of Defendant's post-arrest silence as affirmative proof of his guilt.

Standard of Review

As the parties note, the five points on appeal are subject to the plain error standard of review because they were not properly preserved during the proceedings before the trial court. The failure properly to preserve the challenges occurred at different parts of the trial court proceedings, either during trial, in the post-trial motions, or after the trial court's disposition of Defendant's post-trial motions. Plain error review is discretionary with this Court. Supreme Court Rule 30.20. We grant relief under the plain error standard only when the alleged error will so substantially affect a defendant's rights that a manifest injustice or a miscarriage of justice results if left uncorrected. State v. Santillan, 1 S.W.3d 572, 578 (Mo.App. E.D.1999). The defendant seeking plain error review bears the burden of demonstrating a manifest injustice or miscarriage of justice. State v. Louis, 103 S.W.3d 861, 864 (Mo.App. E.D.2003). The Missouri Supreme Court has observed that, on direct appeal, a manifest injustice or miscarriage of justice exists so as to entitle a defendant to relief for plain error only when the error is outcome determinative. Deck v. State, 68 S.W.3d 418, 427 (Mo. banc 2002).

Lay Witness Opinion Testimony

In his first point, Defendant asserts the trial court plainly erred in permitting Officer Youngblood and Detective Newsham to testify that, in their opinions, the suspect in the videotapes and still photographs from the videotapes at the ATMs was Defendant, because that testimony invaded the province of the jury to decide the ultimate issue of the suspect's identity and these witnesses were in no better position than the jurors to draw conclusions from the available evidence. Specifically, Defendant urges the trial court plainly erred in allowing the State to elicit opinion testimony from Detective Newsham that the person depicted in the videotapes and photographs from the November 2000 incidents was Defendant, and that the suspect's clothing in those exhibits was the same as that recovered from Defendant and Tabb on December 4, 2000. Defendant also argues the trial court plainly erred by allowing the State to elicit Officer Youngblood's opinion that Defendant was the individual depicted in the photographs from the November 2000 incidents.

To establish a manifest injustice or a miscarriage of justice for plain error due to the erroneous introduction of evidence, "there must be an apparent prejudice to defendant. State v. Fuente, 871 S.W.2d 438, 443 (Mo. banc 1994). Prejudice is not considered apparent when there is ample other evidence to support the conviction. Id." State v. Jimmerson, 891 S.W.2d 470, 472 (Mo.App. E.D.1994).

A "trial court has wide discretion in admitting the testimony of a lay witness into evidence." State v. Winston, 959 S.W.2d 874, 877 (Mo.App. E.D.1997). Generally, a lay...