State v. Yates, WD
| Decision Date | 15 December 1998 |
| Docket Number | No. WD,WD |
| Citation | 982 S.W.2d 767 |
| Parties | STATE of Missouri, Respondent, v. Douglas T. YATES and Danny Jackson, Appellants. 54344. |
| Court | Missouri Court of Appeals |
Kevin L. Jamison, Kansas City, MO, for Appellants.
David B. Parman, Prosecuting Attorney, Grant City, MO, for Respondent.
Before SMART, P.J., ELLIS and HOWARD, JJ.
Douglas T. Yates and Danny Jackson were both convicted of the transfer of a concealable firearm without a permit, § 571.080, RSMo 1994, and Yates was also convicted of the unlawful use of a weapon, § 571.030, RSMo Supp.1995. On appeal, Yates and Jackson claim numerous instances of error by the trial court, and Yates contends that the convenience store into which he carried a firearm was not a "public assemblage" for the purposes of § 571.030.1(8).
Yates' conviction of unlawfully using a firearm is reversed, and Yates' and Jackson's convictions of transferring a concealable firearm without a permit are affirmed.
On the evening of October 15, 1996, Yates went into Casey's General Store, a convenience store in Grant City, Missouri. He purchased three packs of cigarettes, and during the transaction, the store clerk noticed that Yates was carrying a handgun in a shoulder holster. The weapon was in plain sight, and Yates did not remove it from the holster, or make any remarks or threats about having a gun.
After Yates left, the sheriff's department was informed of the incident, and Deputy Terry Sheddrick went to talk to Yates at his home. Deputy Sheddrick asked Yates if the gun was registered in his name, and Yates replied that it was registered in Jackson's name. A check of the records in the Worth County sheriff's office revealed that a permit to acquire a concealable firearm had been issued to Jackson but not to Yates.
On October 22, 1996, Jackson went to the sheriff's office to see Deputy Sheddrick, and told him that he had loaned the gun to Yates to use for target practice. Both Jackson and Yates were arrested for transferring the weapon without a permit, and Yates was arrested for unlawfully using the weapon by carrying it into a public assemblage. Following a jury trial, both men were convicted of all charges, and Jackson and Yates were each fined $50.00 for transferring the gun without a permit, and Yates was given a five-day jail sentence and a fine of $100.00 for unlawful use of the weapon.
The verdicts in this case were returned on March 27, 1997, and Yates' and Jackson's motion for a new trial was filed thirty-three days later, on April 29, 1997. Rule 29.11(b) provides that a defendant must file a motion for a new trial within fifteen days after the return of the verdict. In addition, Rule 29.11(b) provides that, if the defendant applies for an extension of time within fifteen days after the return of the verdict, the court may extend the time for filing the motion for one additional ten-day period. The time limitations in Rule 29.11 are mandatory. State v. Jones, 643 S.W.2d 34, 36 (Mo.App. E.D.1982).
In the case at bar, Yates and Jackson did not apply for an extension of time within the fifteen-day deadline; therefore, the trial court was without authority to extend the deadline at all. Rule 20.01(b); State v. Smith, 527 S.W.2d 455, 456 (Mo.App. S.D.1975). Even if Yates and Jackson had timely applied for an extension, the trial court was without authority to extend the deadline beyond an additional ten days, i.e., to twenty-five days after the return of the verdict. State v. Brown, 615 S.W.2d 626, 626-627 (Mo.App. S.D.1981). Because Yates and Jackson did not file their motion for a new trial within the maximum time period allowed by rule, the motion preserves nothing for appellate review, and we consider the cause only as to issues deemed plain error. State v. West, 629 S.W.2d 429, 432 (Mo.App. W.D.1981).
On appeal from his conviction of unlawfully using a weapon, Yates claims that the retail establishment in which he carried a firearm, Casey's General Store, was not a "public assemblage" for the purpose of § 571.030.1(8), and therefore he did not violate that criminal statute.
Section 571.030.1(8) provides that a person commits the crime of unlawful use of a weapon if he knowingly:
[c]arries a firearm or any other weapon capable of lethal use into any church or place where people have assembled for worship, or into any school, or into any election precinct on any election day, or into any building owned or occupied by any agency of the federal government, state government, or political subdivision thereof, or into any public assemblage of persons met for any lawful purpose.
A review of the case law reveals that, in previous prosecutions under earlier versions of this statutory provision, defendants have been convicted for carrying a weapon to a pie supper at a schoolhouse, State v. Loahmann, 58 S.W.2d 309, 310 (Mo.1933), and into a church house where a school exhibition was taking place. State v. Wilforth, 74 Mo. 528, 529 (Mo.1881). In other jurisdictions, similar statutes have led to convictions for carrying a weapon to a dance hall, Spears v. State, 44 Okla.Crim. 406, 281 P. 167 (Ok.App.1929); and to a public barbeque with over four hundred people present, Wynne v. State, 123 Ga. 566, 51 S.E. 636 (Ga.1905).
There is no Missouri law--either in the criminal statutes or in the published cases--that explicitly defines what constitutes a "public assemblage" for the purposes of this subsection. However, the language of the subsection makes it clear that the law is designed to proscribe the carrying of a weapon where people have gathered for religious, educational, political, civic, or social purposes, and that the emphasis of the subsection is on the gathering of people, and the effect thereon of the presence of a weapon, and not on the question of whether a place happens to be open to the public. It is this distinction between a "public gathering" and a "public place" which led the Georgia Court of Appeals to determine that the act of carrying a weapon into a McDonald's restaurant wasn't proscribed under a similar statute. State v. Burns, 200 Ga.App. 16, 406 S.E.2d 547, 547-548 (Ga.App.1991). This distinction was also noted in Annotation, Offense of Carrying Weapon on Person as Affected by Place Where Defendant Was at the Time, 73 A.L.R. 839, 843 (1931), which observed that, in those states which have passed statutes making it a distinct offense to carry weapons at a public gathering, such statutes "have been held to apply only when a person has carried a weapon at an actual assembly of people, the public nature of the place being immaterial."
Applying these principles to the case at bar, a convenience store with two clerks on duty and no other customers present does not constitute a "public assemblage" for the purposes of § 571.030.1(8). Consequently, Yates' conviction for unlawful use of a weapon must be reversed. Because we are reversing Yates' conviction on this count, we need not address his claim that there was insufficient evidence that he unlawfully used a weapon because the prosecution failed to prove that the gun was loaded.
On appeal from their convictions of transferring a concealable firearm without a permit, Yates and Jackson claim that the trial court plainly erred by allowing the prosecutor to refer, during closing argument, to their failure to testify.
During the initial portion of his closing argument, the prosecutor argued that
it might be argued or suggested that there's no evidence that the transferring of this weapon from Defendant Jackson to Defendant Yates occurred in Worth County. And, granted, there has been no evidence that that transfer actually took place within the physical confines of Worth County. However, you heard a minute ago the Judge talking about the evidence and the reasonable inferences to be drawn therefrom. And that's going to be one of the instructions that you're going to have to take back to the jury room with you.
There are certainly a strong--I would suggest a strong presumption, a strong inference where the defendants both reside here in Worth County, where this--where this gun was found to be in possession of Defendant Yates here in Worth County, that there's a strong presumption that that transfer took place...
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