Opinion
No. 26461
October 5, 2005.
Appeal from the Circuit Court of Greene County, Missouri, Honorable Don E. Burrell, Judge.
Ellen H. Flottman, for Appellant.
Jeremiah W. (Jay) Nixon Lisa M. Kennedy, for Respondent.
Appellant Charles Sanchez ("Appellant") appeals his convictions by a jury for two counts of kidnapping pursuant to section 565.110; two counts of armed criminal action pursuant to section 571.015; one count of unlawful use of a weapon pursuant to section 571.030.1(4); and one count of arson in the first degree pursuant to section 569.040. Appellant was sentenced by the trial court as a prior and persistent offender per section 558.016 to a total of twenty-two years in the Missouri Department of Corrections. Appellant alleges six points of trial court error discussed below. The judgment and sentence of the trial court is affirmed.
All statutory references are to RSMo 2000, unless otherwise specified.
Reviewing the facts and evidence in the light most favorable to the jury's verdict, State v. Tyra , 153 S.W.3d 341, 344 (Mo.App. 2005), the record reveals that in May of 2001 Appellant resided in a home in Springfield, Missouri, with his girlfriend, Toni Selle ("Toni"); their five-month-old child, Renee Sanchez ("Renee"); and Toni's four-year-old son from a previous relationship, Steven Johnson ("Stevie"). On May 30, 2001, Toni and Appellant had a disagreement because Appellant had not come home the previous evening. Toni informed him that "if he was going to be out with his friends partying all night . . . [she] wasn't going to stick around." Toni then left the residence to take Stevie to daycare. When Toni returned to the house, she took a nap and began to pack her belongings. She again spoke with Appellant about their situation and informed him that she was leaving him and moving out.
For purposes of clarity and organization, we refer to the above parties by their first names. This Court means no disrespect in doing so.
At around three o'clock that afternoon, Toni went to pick Stevie up from daycare and when she returned to the residence Appellant was still there. Shortly thereafter, Appellant informed Toni that he had to leave "to go get rid of a gun." When Appellant returned to the home about ten minutes later, he "slammed the front door," pulled out a gun, and told Toni "nobody [was] leaving that house." According to Toni's trial testimony, Appellant, who was acting nervous and paranoid, told her "that there [were] people following him ten cars back;" that "if anybody tried to come in the house he was going to burn down the house and take them out . . ."; that people were "watching him;" and that "there was a torture room underneath the house" where people from California as well as people he worked with had been torturing children, including Renee. Toni tried to convince him to let her call someone to pick up the children.
Several hours later, Appellant allowed Toni to call her former in-laws, Dorothy ("Dottie") and Russell ("Russell") Hunsaker (collectively "the Hunsakers"), to come get Stevie. While Toni was on the phone with Dottie, Appellant alternatively held a gun against her head and her body. He told her not to say anything about the gun while she was on the phone. When the Hunsakers arrived at the home, Toni met them at the front door and Appellant stood directly behind her holding onto the back of her shirt. Toni, who was holding Renee in her arms, tried to mouth to Dottie that Appellant had a gun, but Dottie was unable to understand her. Toni asked Dottie if she could go with her, but Appellant told her she could not leave. Nevertheless, Toni stepped forward onto the porch. When she did so, Appellant pulled her back inside by the shirt. Toni turned around and tried to hit Appellant but she missed and accidentally dropped Renee. Appellant pushed Toni down onto the floor and Russell, who had been waiting outside, rushed forward to help Toni. Appellant pointed his gun at Russell and said "[g]et the hell out of the house or I'll shoot you." Russell complied with Appellant's order. When the Hunsakers left the house with Stevie, they went to a nearby gas station and called the police.
After the Hunsakers left the home, Appellant blocked the front door with a large chair, placed some other items against the back door, and forced Toni to "call the police, or 911, and tell them there was nothing wrong." While Toni was on the phone with the police, Appellant made her sit on his lap so that he could hold the gun to her back. After the phone call, Appellant pulled all of the window shades in the house down and put a comforter over one of the windows. As he was hanging the comforter in the window, Appellant saw police officers arriving outside.
Appellant continued to hold Toni against her will throughout the night. He placed a chair in the hallway where he could see both entrances to the home and he forced Toni to sit on his lap holding the baby. Appellant did not allow Toni to move around the house, eat, or get up to use the bathroom. At some point, Appellant brought a can of gasoline in from the garage and set it on the living room floor. Appellant told Toni that the police were involved in the child abuse and torture ring he had discussed earlier and that he wanted the local television crews to come to the home so he could expose the cult-like corruption he believed was occurring. In fact, Appellant made Toni call Dottie and tell her to invite the television crews to come to the scene. He promised that if the camera crews arrived, he would let everyone go. Additionally, Appellant told Toni to call her father and grandmother so she could "tell them good-bye."
Meanwhile, outside the home, the police presence expanded with the arrival of the police department's crisis negotiation and strategic response teams. John Truman ("Truman"), a crisis negotiator, arrived and was informed that Appellant was armed and possibly under the influence of a narcotic drug. Truman and the other police negotiators were able to speak with both Appellant and Toni by telephone throughout the night. During that time, Appellant not only threatened the negotiators but also told them that there were "caverns under the ground of the house, caverns underneath the neighborhood . . .;" that there was a police conspiracy to hide the existence of these tunnels under his house; that "the police were not there to help him, they were only there to protect the evil people of this world;" and that there was "hair growing out of the walls of these tunnels." Appellant informed one of the police officers that "he had some type of message that he wanted to relay" and that "if he could see his door on TV and have a live camera on his house, that he would come out with everybody;" however, negotiations broke down and no such action was taken.
At some point, Appellant agreed to let Toni's grandmother come to the house and pick up Renee. When Toni's grandmother arrived, Appellant opened the front door, to allow Toni to place Renee, who was in her car seat, and a diaper bag out onto the porch. Prior to opening the door, Appellant warned Toni that if she tried to escape he would shoot her and he placed the gun against her back. Once Toni set the car seat on the porch, Appellant pulled her back into the house by the back of her shirt and slammed the door. A police officer then came onto the porch and retrieved Renee.
Thereafter, while Toni was on the phone with Truman, Truman told her that she needed to try to get herself out of the house, because the police did not yet have a plan to rescue her. A few minutes later, Toni, who had not been allowed to go to the bathroom since before the ordeal began, asked Appellant, while he was on the phone with the negotiator, if she could use the bathroom. Appellant got off the phone and walked down the hallway to the bathroom with her. Toni had just entered the bathroom when the phone rang in the living room and Appellant "ran back down the hallway." Toni then threw open the bathroom window and jumped out. She ran toward the police officers and was taken to safety.
When Appellant realized Toni had escaped, he became irate, threatened to burn the house down, and threatened to take a couple of police officers with him. Moments later, Truman, who was on the phone with Appellant, heard liquid sloshing in a can as they talked and another officer heard Appellant say "I poured gas all over the place, I'm going to torch it." The front of the house then went up in flames. Due to the fire, police officers started evacuating people from neighboring houses.
Appellant then opened the back door of the garage and laid down in the doorway. When police yelled for Appellant to come all the way out of the burning house, Appellant ran into the yard holding a gun to his head. After a struggle with police officers, Appellant was arrested.
A jury trial was held on June 7, 8, and 9, 2004, after which Appellant was convicted and sentenced by the trial court. This appeal followed.
In his first point relied on, Appellant maintains the trial court erred in sentencing Appellant on two separate counts of kidnapping. Appellant argues that kidnapping is "a continuing course of conduct despite the [S]tate's charging Count I as unlawfully confining Toni for the purpose of inflicting physical injury on or terrorizing her and Count IV as unlawfully confining Toni and Renee for the purpose of using them as a shield or hostage."
Appellant was charged by Amended Felony Information with two counts of committing the class B felony of kidnapping, a violation of section 565.110. Specifically, Count I charged "that on or about the 30th day of May, 2001 . . . [Appellant] unlawfully confined Toni Selle without her consent for a substantial period of time, for the purpose of inflicting physical injury on or terrorizing Toni Selle." Count IV, which also charged Appellant with kidnapping, stated that "on or about the 30th day of May, 2001 . . . [Appellant] unlawfully confined Toni Selle and R[enee] S[anchez] without their consent for a substantial period of time, for the purpose of using Toni Selle and R[enee] S[anchez] as a shield or hostage." The jury found Appellant guilty on both counts.
"The Fifth Amendment provides that no person 'shall be subject for the same offense to be twice put in double jeopardy of life or limb.'" State v. Murphy , 989 S.W.2d 637, 639 (Mo.App. 1999). "This constitutional guarantee provides protection against multiple punishments for the same offense." Id. "It forbids the [S]tate from splitting a single crime into separate parts and then prosecuting it in piecemeal." Id. "However, it does not protect a defendant from punishment for more than one offense arising from the same set of facts if one has in law and fact committed separate crimes." Id. ; see also State v. Mullins , 140 S.W.3d 64, 68-69 (Mo.App. 2004); State v. Barber , 37 S.W.3d 400, 403 (Mo.App. 2001).
Appellant urges this Court to follow the exception found in section 556.041(4), the general cumulative punishment statute, which provides that a defendant cannot be convicted of more than one crime based on the same facts when "the offense is defined as a continuing course of conduct. . . ." However, we find section 556.041(4) is inapplicable. Here, the "appropriate test is what, under the [kidnapping] statute, the legislature 'intended to be the allowable unit of prosecution.'" Horsey v. State , 747 S.W.2d 748, 751 (Mo.App. 1988) (quoting U.S. v. Marzano , 537 F.2d 257, 272 (7th Cir. 1976)).
"In most cases, what constitutes a separate criminal act is apparent." State v. Patterson , 826 S.W.2d 863, 867 (Mo.App. 1992). "In determining . . . what the 'allowable unit of prosecution' is, we first look to the statute under which [Appellant] was charged and convicted." Barber , 37 S.W.3d at 403.
In this connection, we observe that in State v. Murphy , the court rejected defendant's claim of double jeopardy, based on defendant's argument that the trial court had plainly erred in entering a judgment against him on four counts of felonious restraint because these counts arose from the same continuous course of conduct of restraining four children at the same place. Murphy , 989 S.W.2d at 639. The Murphy court found that the defendant had committed four separate counts of felonious restraint, proscribed by section 565.120.1, RSMo 1994, because each of the four persons victimized constituted an allowable unit of prosecution under the statute, which contained the word "another." Id. at 640.
"'A person commits the crime of felonious restraint if he knowingly restrains another unlawfully and without consent so as to interfere substantially with his liberty and exposes him to a substantial risk of serious physical injury.'" Murphy , 989 S.W.2d at 639-40 (quoting § 565.120.1, RSMo 1994).
Here, Appellant was charged with kidnapping pursuant to section 565.110.1, which states in pertinent part that:
A person commits the crime of kidnapping if he unlawfully removes another without his consent from the place where he is found or unlawfully confines another without his consent for a substantial period, for the purpose of
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(2) Using the person as a shield or hostage; or
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(5) Inflicting physical injury on or terrorizing the victim or another.
(Emphasis added.)
Accordingly, as in State v. Murphy , Appellant's conviction did not violate the double jeopardy clause because the kidnapping statute provides for a unit of prosecution for each person victimized. Here, Appellant kidnapped "another" (Toni), by unlawfully confining her for the purpose of "[i]nflicting physical injury on [her] or terrorizing her." § 565.110.1(5). Appellant also kidnapped "another" by unlawfully confining Renee for the purpose of using her "as a shield or as a hostage." § 565.110.1(2). "'[T]he fact that these elements may have occurred as a continuous course of conduct in a relatively short span of time does not prohibit the State of Missouri from charging two separate crimes.'" State v. Harper , 855 S.W.2d 474, 481 (Mo.App. 1993) (quoting State v. Whitehead , 675 S.W.2d 939, 943-44 (Mo.App. 1984)). Point denied.
Appellant's second point relied on asserts the trial court abused its discretion in granting the State's request to preclude Appellant from presenting the "defense of diminished capacity and delusional disorder." Prior to trial, Appellant made clear his intent to argue that he was not guilty by reason of mental disease or defect based on his delusional thinking which was brought about by his prior methamphetamine use. In its motion in limine, the State objected, in part, to the admission of three separate mental evaluations performed on Appellant in which Doctors Burstin, Blansett, and Thronson evaluated whether Appellant suffered from methamphetamine-induced delusions as a result of his history of drug abuse. The trial court granted the State's motion in limine prohibiting this testimony on the basis that "voluntary intoxication prevented him from being able to appreciate the nature and wrongfulness of his conduct. . . ." See State v. Rhodes , 988 S.W.2d 521, 525 (Mo.App. 1999) (holding that "testimony of voluntary intoxication is not admissible to negate the mental state of an offense").
However, Appellant never sought to introduce any expert testimony at trial supporting his contention that he suffered methamphetamine-induced delusions. It was Appellant's responsibility to establish the admissibility of expert testimony and the trial court's error in its exclusion. See State v. Myers , 997 S.W.2d 26, 32 (Mo.App. 1999). "An offer of proof is required to allow the trial court to consider the testimony in context and to make an informed ruling as to its admissibility." State v. Dodd , 10 S.W.3d 546, 556 (Mo.App. 1999). Appellant had the opportunity to make such an offer of proof yet he failed to do so. To the extent the rulings of which Appellant now complains were not followed by an offer of proof, we are presented nothing for review. Point Two is denied.
During oral argument Appellant's counsel conceded that this point was not preserved for appellate review.
In his third point relied on Appellant maintains that references to his possible methamphetamine use during the testimony of Officer Truman were prejudicial. Appellant asserts the trial court erred in overruling his "motion in limine and admitting evidence of [sic] that appellant may have been using methamphetamine at the time of the incident. . . ." Appellant maintains he should have been allowed to introduce rebuttal "expert testimony regarding his defense of diminished capacity." We determine that this point has no merit, because, again, Appellant never made an offer of proof on the issue of any possible impairment to his mental state by introducing the expert testimony of physicians who performed mental evaluations on him. As in Point Two, Appellant's failure to make an offer of proof has preserved nothing for our review. Dodd , 10 S.W.3d at 556. Point Three is denied.
Appellant's fourth point on appeal asserts the trial court plainly erred in allowing the State to argue in closing argument that "'if there were [irrational thoughts on Appellant's part] you would have heard from some doctors.'" Appellant alleges that such "prosecutorial misconduct . . . amount[s] to a miscarriage of justice" in that Appellant was not allowed to introduce evidence of Appellant's "diminished capacity through expert witnesses."
During its closing statement, defense counsel made an argument which centered on an assertion that for the jury to convict Appellant of kidnapping, it had to determine Appellant's state of mind and intent at the time he "barricaded the house" with Toni and Renee inside. Defense counsel went on to opine that Toni's confinement at Appellant's hands was not for the purpose of terrorizing or physically injuring her but was instead based on an "irrational fear of danger . . ." as well as an "irrational fear . . . about potential sexual abuse of children. . . ."
After the State objected to defense counsel's repeated references to Appellant's "irrational" thoughts, the trial court ruled that the State could address that issue in its rebuttal closing argument.
Thereafter, Appellant's counsel went on to argue that the alleged pedophilia cult "might be the most irrational thing you ever heard of," and, again, referred to this "irrational thought that maybe even the police were involved [in the abuse] . . . because it was an irrational thought. And it was irrational, but it's the thought, and it was his intent." Additionally, Appellant's counsel mentioned that during the stand off with police Appellant was frustrated "with all the irrational thoughts going on . . ." in his head.
In the State's rebuttal closing argument, the prosecutor argued, "[t]his is not about people crawling under, caverns under the house and child abuse, these irrational thoughts. There was [sic] no irrational thoughts going on there that day. If there were, you would have heard from some doctors." Counsel for Appellant did not object to this remark at that time.
In reviewing Appellant's fourth point on appeal, we observe that "'[p]lain error will seldom be found in unobjected closing argument.'" State v. Vaughn , 32 S.W.3d 798, 800 (Mo.App. 2000) (quoting State v. Kempker , 824 S.W.2d 909, 911 (Mo. banc 1992)). "[I]t is well settled that 'relief should be rarely granted on assertion of plain error to matters contained in closing argument, for trial strategy looms as an important consideration and such assertions are generally denied without explanation.'" State v. Cobb , 875 S.W.2d 533, 537 (Mo. banc 1994) (quoting State v. Wood , 719 S.W.2d 756, 759 (Mo. banc 1986)). Such situations rarely merit plain error review "because 'in the absence of objection and request for relief, the trial court's options are narrowed to uninvited interference with summation and a corresponding increase of error by such intervention.'" State v. Crews , 923 S.W.2d 477, 481 (Mo.App. 1996) (quoting State v. Silvey , 894 S.W.2d 662, 670 (Mo. banc 1995)).
The "[t]rial court has broad discretion in controlling the scope of closing argument, and the court's rulings will be cause for reversal only upon a showing of abuse of discretion resulting in prejudice to the defendant." State v. Ferguson , 20 S.W.3d 485, 498 (Mo. banc 2000). "To find an abuse of discretion, the prosecutor's statements must be 'plainly unwarranted.'" State v. Kriebs , 978 S.W.2d 460, 466 (Mo.App. 1998). "[E]ven if the prosecution's argument was improper, reversal is appropriate only if it is established that the comment of which Appellant complains had a 'decisive effect on the jury's determination.'" State v. Armentrout , 8 S.W.3d 99, 111-112 (Mo. banc 1999) (quoting State v. Hall , 982 S.W.2d 675, 683 (Mo. banc 1998)).
Here, the statement in the State's rebuttal closing argument was made in response to the repeated references defense counsel made in its closing argument to Appellant's "irrational thoughts" and state of mind. The State is given considerably more leeway in closing argument when the argument is retaliatory in nature. State v. Parker , 886 S.W.2d 908, 922 (Mo. banc 1994). "Even if the argument would otherwise be improper, a prosecutor may retaliate to an issue raised in the closing argument of Defendant." State v. Matchett , 69 S.W.3d 493, 500 (Mo.App. 2001). In this instance, the State's closing argument was not improper in that it was rebutting the numerous remarks made by Appellant's counsel as to Appellant's irrational behavior in its closing argument. Id.
Further, "closing arguments 'must be interpreted with the entire record rather than in isolation.'" State v. Edwards , 116 S.W.3d 511, 536-37 (Mo. banc 2003) (quoting State v. Graham , 916 S.W.2d 434, 436 (Mo.App. 1996)). "Appellant fails to show this Court how these closing arguments had any decisive effect on the jury, given the overwhelming evidence of his guilt." State v. Manwarren , 139 S.W.3d 267, 275 (Mo.App. 2004). We find no abuse of discretion on the part of the trial court's failure to sua sponte intervene in the State's closing argument, nor do we find trial court error rising to the level of a miscarriage of justice or manifest injustice. See Edwards , 116 S.W.3d at 535-36. Appellant's fourth point is denied.
In his fifth point relied on, Appellant maintains the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence and in sentencing him for arson in the first degree. Appellant asserts there was insufficient evidence that he "knowingly disregarded an unjustifiable risk that he was placing nearby persons in danger of death or serious physical injury." Specifically, he argues that the only people that he put "in danger of death or serious physical injury" were the police officers and firefighters who were on the scene and "who respond to every fire." According to Appellant, this was insufficient evidence upon which to convict him of first degree arson.
"'A directed verdict of acquittal is authorized only where there is insufficient evidence to support a guilty verdict.'" State v. Holloway , 992 S.W.2d 886, 889 (Mo.App. 1999) (quoting State v. Morovitz , 867 S.W.2d 506, 508 (Mo. banc 1993)).
The Amended Information charged Appellant with violating section 569.040, the class B felony of arson in the first degree, and stated that he "knowingly damaged an inhabitable structure consisting of the residence located at 2911 W. Lombard, and [he] did so by starting a fire at a time when persons were then in near proximity thereto and thereby recklessly placed such persons in danger of death or serious physical injury." Section 569.040 states in pertinent part:
1. A person commits the crime of arson in the first degree when he knowingly damages a building or inhabitable structure, and when any person is then present or in near proximity thereto, by starting a fire or causing an explosion and thereby recklessly places such person in danger of death or serious physical injury.
"A person 'acts recklessly' or is reckless when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation." § 562.016.4.
In the present matter, once Toni and the baby were out of the house, Appellant told a police negotiator, "I poured gas all over the place, I'm going to torch it." Immediately thereafter the house caught on fire. Officer Truman testified that he personally went to the houses on either side of Appellant's home in order to evacuate the residents due to the possibility of "gunshots and fire in the area." Truman testified that he felt the need to evacuate those houses because "[t]he house immediately adjacent to [Appellant's house], the siding was actually beginning to melt on the house . . . Basically we were worried about the safety of those occupants. . . ."
Further, after setting the house on fire and emerging from the back porch, Appellant pointed his gun at the police officers who were waiting to apprehend him. After one of the officers fired a shot at Appellant and missed, Appellant dropped his gun and lay down on the concrete in a pool of water that was forming from the firehoses. Truman testified that at that time "the water was probably six inches, eight inches deep from where we were all the way to the house" and it was "like a torrential downpour of water flowing on our heads from the fire hoses. . . ." He went on to state that "[t]he [power] lines were right over our heads and they were burning, and the insulation was melting off . . . we thought [the power lines] were going to . . . melt and fall into the water and electrocute us."
Larry Giggy ("Giggy"), a fire inspector with the Springfield Fire Department, testified that the siding on the home next door to Appellant's had melted due to the fire Appellant started and Giggy referenced several photographs which showed "the damage from radiant heat that was suffered by" the residence next door. Giggy noted that the house next door to Appellant's had been in great danger of being set on fire and that "[o]nce that siding has melted away and burned like that, it would not take very long for the rest of the wooden structure of the house to catch fire." He went on to reference the danger of electrocution from falling power lines discussed by Truman as well as his belief that the fire put police officers, firefighters, and neighbors "in danger of death or serious physical injury."
Based on the foregoing factual evidence, there was certainly sufficient evidence from which the jury could have found that Appellant knowingly set his own home on fire and recklessly placed numerous people "in danger of death or serious physical injury." § 569.040 The trial court did not err in denying Appellant's motion for judgment of acquittal and in sentencing Appellant for the commission of arson in the first degree. Point Five is denied.
In his final point on appeal, Appellant maintains the trial court erred in finding him to be a prior and persistent offender. He maintains that his due process rights were violated because "under the plain language of the statute, a persistent offender is one who has pleaded guilty to or has been found guilty of two or more felonies committed at different times. . . ." Appellant asserts that the two prior offenses used to enhance his sentence were committed at the same time, thus, they should not have been used to find him to be a prior and persistent offender.
As stated in State v. Johnson , 150 S.W.3d 132, 136 (Mo.App. 2004),
The trial court shall find a defendant to be a prior and persistent offender if: 1) the State pleads in the indictment or information, original or amended, or in the information in lieu of indictment, all essential facts warranting a finding that the defendant is a prior and persistent offender; 2) the State introduces sufficient evidence to warrant a finding that the defendant is a prior and persistent offender; and 3) the trial court finds beyond a reasonable doubt that the defendant is a prior and persistent offender.
See also §§ 558.021.1; 558.016. When the State relies on a previous conviction of an accused to impose a more severe punishment, that conviction must be proved beyond a reasonable doubt. See State v. Lawson , 86 S.W.3d 183, 186 (Mo.App. 2002); § 558.021.
Here, Appellant was charged in the Amended Information as a prior and persistent offender. Prior to trial, a hearing was held in order to determine whether or not Appellant was indeed a prior and persistent offender under section 558.016. At the hearing, the trial court accepted into evidence State's "Exhibit 101" and State's "Exhibit 102." Exhibit 101 contained a copy of a warrant for Appellant's arrest on two counts of unlawful use of a weapon; a copy of the Information filed in Mississippi County, Missouri, for case number CR297-10FX, which charged Appellant with the aforementioned two counts of unlawful use of a weapon as well as one count of armed criminal action; a copy of the sentence and judgment in case number CR297-10FX; and a copy of the court's docket sheets in that case. The Amended Information from that case charged in Count I that "on or about [January 4, 1997, Appellant] knowingly carried concealed upon or about his person a firearm, to-wit: a 380 automatic hand gun." Count II charged that "on or about [January 4, 1997, Appellant] . . . knowingly exhibited, in the presence of one or more persons, a 12 gauge shotgun, a weapon readily capable of lethal use, in an angry or threatening manner." The judgment and sentence from Mississippi County reflects that Appellant pled guilty to both of these offenses and was sentenced to two concurrent four year terms in the Missouri Department of Corrections. Also admitted into evidence at the hearing was a copy of Appellant's records from the Missouri Department of Corrections.
Section 558.016 provides, in pertinent part,
1. The court may sentence a person who has pleaded guilty to or has been found guilty of an offense to a term of imprisonment as authorized by section 558.011 or to a term of imprisonment authorized by a statute governing the offense, if it finds the defendant is a prior offender or a persistent misdemeanor offender, or to an extended term of imprisonment if it finds the defendant is a persistent offender or a dangerous offender.
2. A "prior offender" is one who has pleaded guilty to or has been found guilty of one felony.
3. A "persistent offender" is one who has pleaded guilty to or has been found guilty of two or more felonies committed at different times.
It appears that the armed criminal action count was dropped.
In order to prove that Appellant's two prior felonies were indeed "two separate and distinct offenses committed at different times," the State called Steven Coleman ("Coleman"), a former "patrol sergeant supervisor with the Charleston [Missouri] Department of Public Safety" and an arresting officer on Appellant's prior convictions. Coleman testified that on January 4, 1997, a Pizza Hut employee in Charleston called the police to report "a white male subject which had entered the [store] with a 12-gauge shotgun." When officers arrived at Pizza Hut, they were told that the suspect had fled in "an old Ford truck with a red spot . . ." of paint on it. When Coleman and the other officers apprehended the truck a short distance away, Appellant was driving and there was a loaded 12-gauge shotgun on the seat. During his arrest, the police officers discovered a concealed loaded .380 automatic handgun in Appellant's belt. In finding Appellant to be a prior and persistent offender beyond a reasonable doubt, the trial court noted the discovery of the concealed handgun was "a distinct moment in time that was separate from the Pizza Hut incident [with the shotgun];" accordingly, the events occurred at "different times" per section 558.016. See State v. Lee , 660 S.W.2d 394, 396 (Mo.App. 1983) (holding that courts may infer that crimes were committed at different times "where the record, by reason of dates, geography and the nature of the offenses, in the absence of contrary evidence, supports a finding beyond a reasonable doubt the two offenses occurred at different times").
Based on the foregoing, this evidence sufficiently proved Appellant had been convicted of the felonies necessary to find him a prior and persistent offender. Point denied.
The judgment of the trial court is affirmed.
SHRUM, P.J., —
BATES, C.J. —