State v. Yung

• Decision Date: 29 February 2008
• Docket Number: No. 27547.,27547.
• Citation: 246 S.W.3d 547
• Parties: STATE of Missouri, Plaintiff-Respondent, v. William A. YUNG, Defendant-Appellant.
• Court: Missouri Court of Appeals

246 S.W.3d 547

STATE of Missouri, Plaintiff-Respondent, v. William A. YUNG, Defendant-Appellant.

No. 27547.

Missouri Court of Appeals, Southern District, Division Two.

February 29, 2008.

Craig Allan Johnston, Columbia, MO, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel McPherson, Asst. Atty. Gen. of Jefferson City, MO for Respondent.

JEFFREY W. BATES, Chief Judge.

William Yung (Defendant) was charged by amended information with committing robbery in the first degree and armed criminal action. See § 569.020; § 571.015.¹ The information also alleged that Defendant was a prior offender based upon a 1999 New Jersey conviction for possession of marijuana with the intent to distribute. After a jury trial, Defendant was convicted of both offenses. The trial court sentenced Defendant to twenty years imprisonment for robbery and five years for armed criminal action. On appeal, Defendant contends that his prior offender status was not sufficiently proven and that the trial court should have excluded inadmissible hearsay testimony offered to explain subsequent police conduct. This Court affirms.

Defendant does not challenge the sufficiency of the evidence to sustain his convictions. The facts and all reasonable inferences derived therefrom are considered in a light most favorable to the verdict. State v. Dillard, 158 S.W.3d 291, 294 (Mo.App.2005). All contrary evidence and inferences are disregarded. State v. Lawrence, 64 S.W.3d 346, 348-49 (Mo.App. 2002). Viewed from that perspective, the favorable evidence and inferences supporting the State's case against Defendant are summarized below.

On August 19, 2003, Anna Kilpatrick was working as a cashier at the Flying J convenience store in Joplin, Missouri. The store had videotape surveillance cameras covering the counter and cash register from two different angles.² At 4:40 a.m., two young men were in the store. One was wearing blue jeans, a short-sleeved t-shirt and a solid-colored stocking cap (Robber No. 1). The other was wearing long pants, a long-sleeved plaid shirt and a gray stocking cap with a design and some writing on it that included the letter "n" (Robber No. 2). Both mens' faces were visible because the stocking caps only covered their hair. Robber No. 1 came up to the cash register with a soft drink, and Kilpatrick rang up the purchase. When the register drawer opened, Robber No. 1 leaped over the counter armed with a handgun. Robber No. 2 remained on the other side of the counter. He, too, was armed with a handgun and watched the front doors of the store. Robber No. 1 pointed his gun at Kilpatrick and made her get on the floor. He took approximately $1,900 in cash from the register, placed it into a large bag that Robber No. 2 was holding and scrambled back over the counter. Both men then left the store together. An investigation of this crime was undertaken by the Jasper County Sheriff's Department. Captain Jerry Gilbert was the lead investigator assigned to the case.

On August 31, 2003, Officer Candy Conley was working as a patrolman for the Quartzsite, Arizona, police department. At 4:25 a.m., she received a dispatch that an armed robbery had occurred approximately 17 miles away. Conley was advised to watch Interstate 10 for an older model, white Toyota pickup with a camper shell. At 4:40 a.m., Conley saw a vehicle matching that description traveling eastbound on the interstate. She began following the truck. After backup arrived, Conley initiated a traffic stop. When the truck stopped, the driver exited the vehicle and opened fire. Police officers returned fire, and the driver was killed. The decedent was later identified as Justin McGuire. During the shootout, Defendant exited the passenger side of the truck and was arrested by police. The 1986 white Toyota pickup, which belonged to McGuire, was impounded. Defendant was interviewed by a sergeant with the La Paz County, Arizona, Sheriff's Department. Defendant said he and McGuire had left New Jersey together and were traveling to California.

On September 11, 2003, Gilbert received a telephone call from Margie Turner. Turner believed she knew who had robbed the Flying J. She identified herself as McGuire's sister and said she had received a telephone call from him on August 18, 2003. He was in the Joplin area, and his car was broken down. Turner had not seen or heard from McGuire since that time, and she believed that he had been involved in the Flying J robbery.

At Gilbert's request, Turner sent him a photograph of McGuire. Gilbert compared the photograph to the images on the Flying J surveillance tape and thought that McGuire bore a strong resemblance to Robber No. 1 who had jumped over the counter. Based upon the information provided by Turner, Gilbert also contacted the La Paz County Sheriff's Department and learned that Defendant was in custody there. Gilbert obtained a picture of Defendant from Arizona and compared the photograph to the images on the Flying J surveillance tape. Gilbert thought that Defendant bore a strong resemblance to Robber No. 2, the other young man involved in the robbery.

Gilbert traveled to Arizona and obtained a warrant to search McGuire's truck. During the search, Gilbert found the following items: (1) a gray-and-blue stocking cap with a small design and the word, "independent," written on it; (2) a plaid shirt; (3) a green stocking cap; (4) a Flying J phone card; and (5) a number of receipts, dated after the Flying J robbery and from locations within 60 miles of Joplin, showing expenditures totaling approximately $1,400.

At trial, Kilpatrick identified Defendant as the man who was wearing the plaid shirt during the robbery. She was sure Defendant was the man she saw in the store that night:

Q. Have you seen [Defendant] since the robbery?

A. At the preliminary hearing.

Q. And what was your reaction when you walked into the courtroom that afternoon and saw [Defendant] for the first time since the robbery; what went through your mind?

A. I saw him standing on the other side of that counter.

Q. You had a flashback and you knew then that he was the man?

A. Yes.

Additional facts necessary to the disposition of the case are included below as we address Defendant's two points of error.

Point I

Defendant's first point challenges the sufficiency of the evidence to prove beyond a reasonable doubt that he was a prior offender as defined by § 558.016.2. This point arises from the following facts.

Prior to trial, the State was granted leave to file an amended information charging Defendant as a prior offender. The information alleged that, in November 1999, Defendant pled guilty in New Jersey to possession of marijuana with the intent to distribute. At trial, the State sought to prove Defendant's prior offender status via Ex. 2. This exhibit, which was an exemplified copy of Defendant's New Jersey conviction, was admitted in evidence by the court. According to Ex. 2, Defendant was arrested on March 9, 1999, and originally charged with four offenses. On November 3, 1999, amended charges were filed. Insofar as relevant here, Count II of the amended indictment or accusation charged Defendant with the third-degree crime of "Possession of CDS (Marijuana) w/Intent to Distribute" in violation of § 2C:35-5.³ That same day, Defendant pled guilty to this offense before the Superior Court of Morris County, New Jersey. On December 23, 1999, Defendant appeared for sentencing. The judgment listed Timothy Donohue as Defendant's attorney at sentencing. On Count II, Defendant was sentenced to a three-year term of supervised probation, plus 56 days at the Morris County Correctional Facility as a condition of probation. The second page of the judgment stated that, "[i]f the offense occurred on or after January 5, 1994 and the sentence is to probation, a fee of up to $25 per month for the probationary term is ordered." Defendant was ordered to pay $10 per month. The prosecutor also asked the judge to take judicial notice of § 2C:43-6, which authorizes a person convicted of a third-degree crime in New Jersey to be sentenced to imprisonment for a period of three to five years. Defense counsel argued that Ex. 2 was insufficient to prove Defendant's prior offender status because: (1) the New Jersey judgment did not state that he was convicted of a felony; (2) no prison sentence was actually imposed; and (3) the trial court could not take judicial notice of the statutes of other states. After reviewing Ex. 2, the court found beyond a reasonable doubt that Defendant was a prior offender.

In Defendant's first point on appeal, he has renewed each argument made to the trial court. In addition, he now argues that Ex. 2 does not reflect Defendant's representation by counsel or waiver of that right. All of Defendant's various arguments posit that there was insufficient proof of his prior offender status. A prior offender is defined as "one who has pleaded guilty to or been found guilty of one felony." § 558.016.2. "A crime is a `felony' if it is so designated or if the persons convicted thereof may be sentenced to death or imprisonment for a term which is in excess of one year." § 556.016.2. The State alleged that Defendant's 1999 New Jersey conviction qualified as a prior plea of guilty to one felony. It was the State's burden to present sufficient evidence to prove this allegation. See § 558.021.1(1)(2); State v. Golatt, 81 S.W.3d 640, 650 (Mo.App.2002). After reviewing Ex. 2, the trial court made the requisite finding that Defendant was a prior offender beyond a reasonable doubt. See § 558.021.1(3); State v. O'Shea, 141 S.W.3d 498, 500 (Mo App.2004). Our role is to determine whether there was sufficient evidence for a reasonable trier of fact to have so found. See State v. Miller, 153 S.W.3d 333, 336 (Mo.App.2005).

Defendant first argues that the evidence was insufficient because the New Jersey judgment of conviction does not say that the crime was a felony. We disagree....