State v. McClanahan

954 S.W.2d 476, 1997 Mo. App. LEXIS 1517, 1997 WL 523927

• Court: Missouri Court of Appeals
• Decided: August 26, 1997
• Docket: WD 51634
• Status: Published

Opinions

HANNA, Judge.

The defendant, Tina S. McClanahan, appeals from her conviction, by a jury, of interference with custody, § 565.150, RSMo 1994, and sentence of 90 days in jail. The defendant does not challenge the sufficiency of the evidence. The appeal focuses on three questions asked by the state concerning the defendant’s treatment for drug abuse, prior arrests, and her attempt to terminate her parental rights. She complains that the questions portrayed her as a person of low moral character, resulting in a guilty verdict and an “excessive 90 days in jail.” She requests a reversal of her conviction and remand of the ease for a new trial.

On October 19, 1993, Sasha Clarkson was made a ward of the Randolph County Juvenile Court. The court placed physical and legal custody of Sasha with her father, Robert Clarkson. Pursuant to this order, the defendant was granted one hour of supervised visitation each week in the Moberly office of the Division of Family Services. Although it is subject to dispute, the defendant claims that she had not received visitation during the preceding six months. She had filed two contempt motions with the court against Mr. Clarkson and the Division of Family Services regarding her visitation rights.

On November 16, 1994, the defendant picked up Sasha at the Macon Elementary School. She requested supervised visitation from the Randolph County Juvenile Office and the Department of Family Services. Apparently she was unsuccessful. She took Sasha from Macon to her home in Moberly. That evening, the police went to the defendant’s home to execute a 24-hour protective custody order for Sasha. She responded by yelling obscenities at the police and refused to relinquish custody of Sasha. Eventually the police convinced her to accompany them to the police station with her daughter. At the station, she still refused to voluntarily return Sasha. The police sought assistance from the Randolph County juvenile officer and the DFS worker. They were unable to help. After approximately 1% hours of unsuccessful negotiations, four police officers physically removed the child from the defendant’s custody.

Two of the three questions, those regarding her prior arrests and her offer to terminate her parental rights, may be considered together. The defendant states in her point relied on that “the state also asked other improper questions regarding prior arrests, and her attempts to terminate her parental rights which denied her a fair trial.

When the questions were asked about the defendant’s prior arrests¹ and her offer to terminate her parental rights, counsel objected and the court sustained the objections. Admittedly, questions, without answers, may be prejudicial. State v. Dunn, 577 S.W.2d 649, 651 (Mo. banc 1979). However, the general precept applies that, when an improper question is asked but not answered, no prejudicial error occurs. State v. Gilmore, 681 S.W.2d 934, 942 (Mo. bane 1984). In those situations in which the question alone may, in the opinion of counsel, create an unfavorable consequence, counsel may ask for further relief. In this case, there was no request for any other relief after the court’s ruling in her favor. When a defendant’s objection to a question is sustained and there is no further request for relief or motion directed to the court, nothing is preserved for review on appeal. State v. Harvey, 766 S.W.2d 175, 177 (Mo.App.1989).² Additionally, the defendant’s after trial motion raised only two issues, the sufficiency of the evidence to sustain the conviction and the court’s ruling on the state’s question about her drug treatment. She did not raise any claim of error regarding the unanswered questions. In order to preserve allegations of error for appellate review, they must be included in the motion for new trial. Rule 29.11(d); State v. Watts, 813 S.W.2d 940, 943 (Mo.App.1991).

Finally, it is incumbent upon the defendant to identify in what manner the trial court erred as it relates to the two unanswered questions. The defendant has failed to comply with Rule 30.06(d) by setting forth “what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous,.... ” She complains that “the state asked other improper questions regarding prior arrests and her attempts to terminate her parental rights.... ”

The scope of the issue on appeal is determined by the point relied on. State v. Talbert, 873 S.W.2d 321, 323 (Mo.App.1994). The defendant has not identified, either in the point relied on or in the argument portion of the brief, what actions or rulings of the trial court are sought to be reviewed or what relief the trial court failed to grant or should have taken. See State v. Nenninger, 872 S.W.2d 589, 589, (Mo.App.1994), cert. denied, 513 U.S. 1022, 115 S.Ct. 589, 130 L.Ed.2d 503 (1994). The defendant received all of the relief she requested when the court sustained her objection, and she has failed to preserve the issue of the unanswered questions at the time of trial, in her after-trial motion, and on appeal.

More troublesome is the prosecutor’s question concerning the defendant’s treatment for drug abuse. The defendant’s objection was overruled. Drug treatment generally does not go to any element of the crime that the state is obligated to prove. The basis for its admission was to attack the witness’s credibility. The defendant maintains that her prior treatment for drug abuse was irrelevant and was introduced solely to show that she was a person of low moral character.

The testimony about the defendant’s drug treatment came about in the following manner. The state asked the defendant about her prior convictions. She testified that she had only one conviction, which had occurred approximately 13 years earlier. The state then asked the defendant if she had pleaded guilty in 1995 to driving under the influence of narcotics in Iowa. The defendant stated, “that was kind of a screwed up deal.” She then stated, “I signed a paper, but I couldn’t make it to court ... they told me that the charges would be dropped....” She was asked if she had a copy of the lab report concerning the DUI, and she answered, “as far as I know, nothing has come back in the lab report except for nicotine and caffeine.” The state then asked the defendant if she had ever received treatment for drug abuse. Counsel objected on relevancy grounds. The court overruled the objection and allowed the answer, which included three treatment programs.

“Evidence is relevant if it tends to prove or disprove a fact in issue, or if it corroborates evidence that is relevant and bears on a principal issue.” State v. Bounds, 857 S.W.2d 474, 477 (Mo.App.1993). The trial court is vested with broad discretion in ruling on questions of relevancy, and the appellate court should not interfere with the trial court’s ruling in the absence of a clear showing of an abuse of discretion. State v. Brown, 718 S.W.2d 493, 493-94 (Mo. banc 1986).

If a defendant chooses to testify, prior convictions, including pleas of guilty, may be exposed and considered by the jury to determine her credibility. State v. Light, 871 S.W.2d 59, 62-63 (Mo.App.1994); § 491.050, RSMo 1994. It is unclear from the record whether the defendant’s prior treatment for drug abuse had any connection to her alleged conviction in Iowa. However, given the purpose of such evidence, the details of the admitted prior convictions are unnecessary. State v. Silcox, 694 S.W.2d 755, 757 (Mo.App.1985). When the state questions a defendant about prior convictions, it is permitted to elicit the nature, dates, and places of the occurrence, as well as the sentences resulting therefrom. Light, 871 S.W.2d at 63. “In literary terms who, what, when and where are in order but why and how are not.” Id. Even if the state’s question concerning her prior drug treatment was the result of this alleged conviction, the question was beyond the scope of permissible inquiry.

The state contends that the defendant asserted her good character through her testimony set forth above. However, first, it was the state that asked about her prior conviction. Second, we do not agree that it is an assertion of good character that one has not been convicted of a crime in 13 years or that the defendant thought the DUI charges would be dropped. The evidence of her drug treatment was irrelevant, and the trial court erred in permitting the state to ask about it. The question now becomes whether the drug treatment testimony was so prejudicial as to warrant a reversal of the conviction. See State v. Debler, 856 S.W.2d 641, 649 (Mo. banc 1993).³

The defendant was charged with interference with custody, § 565.150, RSMo 1994, which requires a showing that a person, “knowing that he has no legal right to do so, ... takes or entices from legal custody any person entrusted by order of a court to the custody of another person or institution.”

The evidence of the defendant’s guilt was as follows. A court previously had ruled that the defendant was not a fit custodian of her five year old daughter in an unsupervised setting and, therefore, had entrusted the physical and legal custody of Sasha with her father. The defendant testified that, although the court had awarded her only one hour of supervised visitation per week, she took Sasha off of the school bus and drove her to her home in Moberly without permission or supervision. When the authorities demanded the child’s return, her defiance of the lawful court order continued, in the presence of her daughter, requiring four police officers to wrestle the daughter from her custody. The defendant’s continual defiance of a lawful court order and its lawful authorities, in her child’s presence, closed any question of her guilt.

When the body of evidence establishing the defendant’s guilt is overwhelming, the error is rendered harmless. State v. Leisure, 796 S.W.2d 875, 880 (Mo. banc 1990) (emphasis added).⁴ The presumption of prejudice from the erroneous admission of evidence may be overcome when the evidence of guilt is so overwhelming as to eliminate any reasonable doubt that the defendant would have been found guilty even without the erroneously admitted evidence. State v. Troupe, 863 S.W.2d 633, 636 (Mo.App.1993). It also has been put that error, which in a close case might call for reversal, may be disregarded as harmless when the evidence of guilt is strong. State v. Degraffenreid, 477 S.W.2d 57, 65 (Mo. banc 1972); State v. Cook, 628 S.W.2d 657, 661-62 (Mo. banc 1982); State v. Burns, 795 S.W.2d 527, 531 (Mo.App. 1990).

Although the evidence of drug treatment was improper, the presumption of prejudice from the erroneous admission of such evidence is overcome by the evidence of the defendant’s guilt. Further, we find no other reference to drug treatment by the prosecuting attorney at any point during the trial, including closing argument. The unchallenged evidence of guilt renders the error harmless.

In point two, the defendant asserts that the jury’s assessment of punishment of 90 days was affected by the evidence of her drug abuse treatment and the questions concerning her prior arrests and termination of her parental rights.⁵ The punishment for violating § 565.150, RSMo 1994, interference with custody, a class A misdemeanor, is not to exceed one year in the county jail. § 558.011, RSMo 1994.

The issue of an excessive sentence first should be addressed to the sound discretion of the trial court. In this case, it was not. As mentioned, the only issues preserved in the defendant’s post trial motion were the sufficiency of the evidence, which was not raised on appeal, and the court’s error in allowing the testimony about the defendant’s drug abuse treatment. The latter error was not raised in the context of an excessive sentence.

The court derives its authority to assess, increase, or reduce punishment from statute, § 557.036, RSMo 1994, and the Missouri Supreme Court Rules 29.02, 29.03, 29.04, 29.05, and 29.06. State v. Lewis, 633 S.W.2d 110, 118 (Mo.App.1982). There is no constitutional right to have a jury determine punishment. State v. Weimer, 658 S.W.2d 77, 79 (Mo.App.1983). The constitutional right to a trial by a jury in a felony case does not extend to jury sentencing. U.S. Const. amend. VI; State v. Cline, 808 S.W.2d 822, 826 (Mo. banc 1991); State v. Griffin, 756 S.W.2d 475, 487 (Mo. banc 1988), cert. denied, 490 U.S. 1113, 109 S.Ct. 3175, 104 L.Ed.2d 1036 (1989).

We have not found authority permitting any appellate court review of a jury sentence because it was affected by inadmissible evidence, except possibly State v. Hernandez, 815 S.W.2d 67 (Mo.App.1991). In Hernandez, the court found that the evidence of guilt was overwhelming but reversed the conviction because of the prejudicial effect of the inadmissible evidence. The implication of its holding is that the error so contaminated the jury’s verdict that retrial was the appropriate result. Other than the Hernandez case, we are referred to no authority, and we find none, that supports the proposition that a reviewing court may reverse a conviction because of the effect that the inadmissible evidence may have had on the jury’s assessment of punishment.

On the other hand, Degraffenreid, Cook, Brown, Leisure, Troupe, and Burns,6 represent a long line of cases that have evaluated the prejudicial effect of inadmissible evidence on the jury’s determination of guilt, not punishment. Missouri law does not contemplate an unduly subjective standard of review where an appellate court may reverse a conviction because of the effect of inadmissible evidence on the jury’s assessment of punishment. However, these cases do not preclude court review of a jury’s determination of punishment. A review of punishment may be accomplished even though it was held that the inadmissible evidence did not affect the jury’s determination of guilt. The review then may be directed to a reduction of the sentence, not reversal of the conviction.

In the first instance, it is the jury’s responsibility to assess punishment. In any event, the trial court is statutorily required to decide the extent of the punishment in all cases in which the jury has assessed the sentence. Section 557.036.1, RSMo 1994, directs the trial court upon a guilty verdict to “decide the extent or duration of sentence or other disposition to be imposed under all the circumstances ... and render judgment accordingly.” The court’s authority is limited in that the term of imprisonment imposed by the court cannot exceed the term declared by the jury. In other words, it is the primary function of the jury to set the maximum punishment. State v. Maxson, 641 S.W.2d 162, 163, (Mo.App.1982). Only when the defendant is found to be an offender under § 558.016, RSMo (1994), or the term assessed by the jury is less than the minimum range of punishment may the court increase the term of imprisonment. Id. It is the function of the jury to assess punishment subject to the responsibility of the trial' court to reduce the punishment, “if in the opinion of the trial court the conviction is proper but the punishment assessed is greater than, under the circumstances of the case, ought to be inflicted.” State v. Caffey, 365 S.W.2d 607, 610 (Mo.1963) (emphasis added); S.Ct. Rule 29.05. Simply put, the trial court makes its own assessment of punishment and will enter a sentence consistent with the facts of the case, which may not exceed the punishment issued by the jury. Expectedly, the vast majority of sentences imposed by the trial court are the same as the jury’s sentence. Therefore, we are not prepared to accept the dissent’s opinion that, simply because the trial court’s sentence was the same as that imposed by the jury, the trial court did not review the sentence assessed by the jury-

Additionally, sentences that, in the opinion of the defendant, are excessive may be reviewed by the trial court when the defendant requests in an after-trial motion to reduce the sentence imposed. State v. Johnson, 549 S.W.2d 348, 351 (Mo.App.1977); Rule 29.11(d). In those eases, an appellate court has authority to reduce the sentence only upon a showing of an abuse of discretion appearing clearly in the record. State v. Agee, 474 S.W.2d 817, 821 (Mo.1971); State v. Morris, 661 S.W.2d 84, 85 (Mo.App.1983). The appellate court will not interfere with the trial court’s decision absent a showing that “passion and prejudice so clearly appears from the record that the appellate court can confidently say the trial court abused its discretion by declining to reduce the punishment.” Johnson, 549 S.W.2d at 351; State v. Mucie, 448 S.W.2d 879, 889 (Mo.1970), cert. denied, 398 U.S. 938, 90 S.Ct. 1842, 26 L.Ed.2d 271 (1970). However, the issue was not raised in any form before the trial court, and no request to reduce the sentence has been made here. Our review here of the inadmissible evidence is limited to its effect on the jury’s determination of guilt.

Judgment affirmed.

LOWENSTEIN, ULRICH, SPINDEN and HOWARD, JJ., concur with majority opinion.

SMART, J., files separate concurring opinion.

EDWIN H. SMITH, J., files separate dissenting opinion.

BERREY, BRECKENRIDGE, ELLIS and LAURA DENVIR STITH, JJ., join in dissenting opinion.

1 . The defendant’s answer that she had been arrested on six different occasions interrupted her counsel's objection and was given before the court's ruling. After the court sustained the objection, the prosecutor did not pursue that line of questioning. Later in her testimony, the defendant again volunteered in a non-responsive answer that she had been arrested for interfering with custody related to the Division of Family Services.

2 . We expect that the jury will abide by the court’s written instruction, MAI-CR 3d 302.02, which instructs the jury that "[y]ou must not assume as true any fact solely because it is included in or suggested by a question asked a witness. A question is not evidence, and may be considered only as it supplies meaning to the answer.” Further, the jury was instructed that "if the Court sustains an objection to a question, you will disregard the entire question and you should not speculate as to what the answer of the witness might have been.”

3 .We do not condone the prosecutor's overzealous questioning on clearly irrelevant matters. Obvious irrelevant and perilous questions concerning termination of parental rights, arrests, and drug treatment cast suspicion on the questioner's motivation. Such improprieties will assure close appellate scrutiny. In State v. Hernandez, 815 S.W.2d 67 (Mo.App.1991), the appellate court reversed and remanded for a new trial because of the admission of improper evidence, which was exacerbated by the prosecutor’s fixation on the evidence during closing argument. In Hernandez, 815 S.W.2d at 71, The court stated:

It is unfortunate when prosecuting officials with otherwise strong evidence in support of a conviction choose to go beyond the legitimate evidence that is available to them and pursue other inflammatory and irrelevant triviality in quest of conviction. When this occurs, the result of appellate review is assured.

4 . An exception is when the trial is bifurcated between guilt and punishment such as in death penalty cases. State v. Shurn, 866 S.W.2d 447 (Mo. banc 1993), cert. denied, 513 U.S. 837, 115 S.Ct. 118, 130 L.Ed.2d 64 (1994).

5 . Our review is limited to the drug abuse treatment evidence. We have held that there is nothing to review regarding the questions about prior arrests or termination of parental rights.

6 . State v. Degraffenreid, 477 S.W.2d 57 (Mo. banc 1972); State v. Cook, 628 S.W.2d 657 (Mo. banc 1982); State v. Brown, 718 S.W.2d 493 (Mo. banc 1986); State v. Leisure, 796 S.W.2d 875 (Mo. banc 1990); State v. Troupe, 863 S.W.2d 633 (Mo.App.1993); State v. Burns, 795 S.W.2d 527 (Mo.App. 1990).