                                                            
                      In the Missouri Court of Appeals
                              Eastern District
                                          DIVISION TWO

STATE OF MISSOURI,                             )     ED101523
                                               )
          Plaintiff/Respondent,                )     Appeal from the Circuit Court
                                               )     of the City of St. Louis
v.                                             )
                                               )
YOLONDA WASHINGTON,                            )     Honorable Steven R. Ohmer
                                               )
          Defendant/Appellant.                 )     Filed: June 16, 2015

                                            Introduction

          Yolonda Washington (Appellant) appeals from the judgment entered by the trial court

upon the jury verdicts finding her guilty of second-degree assault and armed criminal action. We

affirm.

                                  Factual and Procedural Background

          On February 26, 2011, Appellant purchased a Dodge Intrepid from Eric Royston

(Royston), the owner of Rebel Motors, a shop in the business of buying, repairing, and selling

wrecked vehicles. Appellant made her first two payments on the car and then ceased making

payments. Royston attempted to contact Appellant but was unsuccessful.

          On October 28, 2011, Royston encountered Appellant driving the Intrepid when she

pulled into a gas station as Royston was about to leave. Royston approached Appellant.

Royston told Appellant he needed to take the Intrepid because she had stopped making



 
payments. Appellant prepared to drive off in the Intrepid while Royston stood in its open

doorway. Appellant proceeded to drive the car, dragging Royston with it. Royston held onto the

car because he was afraid if he let go, his feet would go under the car, causing the car to run over

his legs.

        Appellant turned right onto the street and Royston rolled off the side of the car into the

street. Appellant then made a U-turn and drove straight back toward Royston, striking him.

Royston was propelled onto the car, his shoulder going through the windshield, and then was

thrown into the street. Appellant kept driving, but was blocked by another motorist to prevent

her from leaving the scene. Royston was taken to the emergency room. He suffered a broken

nose, a broken orbital bone, an arm broken in two places, a dislocated and shattered shoulder,

permanent indentations on his shins, and various scrapes and bruises.

        Appellant was charged with second-degree assault and armed criminal action. After a

jury trial, the jury found Appellant guilty of both charges, and she was sentenced to three years

in the Missouri Department of Corrections and one year in the Medium Security Institution. This

appeal follows.  Other evidence adduced at trial will be discussed as necessary in addressing the

points raised on appeal.

                                          Points on Appeal

        In her first point, Appellant contends the trial court abused its discretion in allowing the

State to elicit testimony from Royston that he loaned Appellant a vehicle before the car

Appellant sought to purchase was available because this evidence was irrelevant and prejudicial.

        In her second point, Appellant maintains the trial court abused its discretion in allowing

the State to introduce in rebuttal a statement she gave the police for the purpose of demonstrating




                                                  2
 
she did not mention she turned her car around to retrieve her purse because the statement was

prejudicial and lacked foundation.

       In her third point, Appellant claims the trial court abused its discretion in allowing the

State to reference shooting a gun and beating a child in closing argument because these

references were highly prejudicial and intended to inflame the jury.

                                        Standard of Review

       The standard of review for the admission of evidence is abuse of discretion. State v.

Turner, 420 S.W.3d 666, 669 (Mo.App. E.D. 2014). This standard gives the trial court broad

leeway in choosing to admit evidence; therefore, an exercise of this discretion will not be

disturbed unless it is clearly against the logic of the circumstances. Id. We will not reverse for

an evidentiary error unless prejudice is demonstrated. Id. Trial court error is prejudicial when

there is a reasonable probability the error affected the outcome of the trial. Id.

                                              Discussion

                   Point I – Evidence of Royston Loaning Vehicle to Appellant

       At trial, during direct examination by the State, Royston testified to the following while

describing his relationship with Appellant:

       Q. (By the State) Okay. So you spoke with [Appellant] about a car. Was there a
       particular car that she wanted to buy?
       A. Yes. It was a Dodge Intrepid.
       Q. Okay. Was she able to take custody of that car right away?
       A. No.
       [DEFENSE COUNSEL]: Your Honor, may we approach?
       (Counsel approached the bench and the following proceedings were held.)
       DEFENSE COUNSEL: Your Honor, I believe he’s going to testify that he lent her
       another car while she - while working on the Dodge Intrepid she eventually got. That is
       not relevant and I think that is really just - I think it can be prejudicial to show he’s a nice
       guy. It is not relevant to the fact that she bought the Dodge Intrepid, that he lent her
       another car for a month while they were working on the car. That is what he is going to
       testify to.
       THE STATE: It is the knowledge of her identity and everything else.

                                                  3
 
       DEFENSE COUNSEL: I think we’ve established that.
       THE COURT: Well, I think there is some context here. Overruled.
       DEFENSE COUNSEL: Of the car?
       THE COURT: Well, the relationship - the establishment of the relationship. Overruled.
       …
       Q. (By the State) I believe my question was, was she able to take custody of that car at
       that particular time?
       A. No. It wasn't ready yet.
       Q. When you say it wasn’t ready, what was wrong with the car?
       A. Well, it needed some paint and it needed - the passenger side door needed to be
       completed, repaired of, and we needed another couple weeks, so I lent her my car –

       Q. Okay.
       A. - so she could drive her and her mom.
       Q. Is that like a dealer car so-to-speak?
       A. Well, yeah. It was my daily driver. I mean, I’m the licensed owner in the business,
       so it’s my car.

       At trial, Royston identified Appellant as the woman to whom he sold the Intrepid and

who assaulted him with it when he confronted her about nonpayment. The fact that Royston also

lent Appellant his own personal dealer car to use while his shop was finishing work on her

Intrepid is relevant to his knowledge of her identity, which must be established at trial. “The

evidence at trial must show defendant was the person who committed the crime.” State v. Baker,

23 S.W.3d 702, 708 (Mo.App. E.D. 2000). Evidence is relevant if it tends to prove a fact or

issue or corroborate other relevant evidence which bears on a principal issue in the case. State v.

Shurn, 866 S.W.2d 447, 457 (Mo.banc 1993). The trial court did not abuse its discretion in

allowing this testimony because it was relevant to establish identity.

       Further, Appellant later testified she did not recognize Royston when he approached her

at the gas station and said she had never seen him before. Royston’s testimony regarding his

prior dealings with Appellant, including lending her his dealer car, tended to cast doubt on her

testimony that she did not know who Royston was, as did the police report wherein Appellant

stated she knew who Royston was when he approached her at the gas station.



                                                 4
 
       Despite the relevance of the evidence, Appellant maintains it was prejudicial because it

tended to portray Royston as a nice person. Even giving Appellant’s argument the benefit of the

doubt that this testimony portrayed Royston as a nice person, it could not reach the level of

prejudice necessary to affect the outcome of the trial because whether Royston was a nice person

has no bearing on whether Appellant intentionally hit him with her car.

       It is for the trial court to decide whether evidence is relevant and whether its probative

value outweighs the prejudicial effect, and this decision will not be disturbed on appeal unless it

is a clear abuse of discretion. State v. Davis, 318 S.W.3d 618, 640 (Mo.banc 2010). Whether or

not Royston was a nice guy loaning Appellant his alleged personal dealer car for a few weeks

prior to delivery of the Intrepid to her is unlikely to be a determining factor to the jury in whether

Appellant committed assault against Royston. For the foregoing reasons, the trial court did not

abuse its discretion in overruling Appellant’s objection. Point I is denied.

                      Point II – Rebuttal Evidence of Appellant’s Testimony

       On direct examination, Appellant explained that her actions in making a U-turn, driving

back toward Royston and hitting him with the Intrepid were for the purpose of retrieving her

purse, which had fallen out of the car and into the street.

       Q. And where - at this point where is the purse at?
       A. It’s in the center lane, a median.
       Q. Where is Mr. Royston at?
       A. He’s in the lane next to it, which would be to the left.
       Q. Okay. What is he doing?
       A. He’s just laying there at that point in time.
       Q. Okay.
       A. But when I bust a U, I’m thinking, well, the car is faster than him and I can get to the
       purse before he can even regain footing or whatever the situation was…. So I bust a U-
       turn. My main goal is to get that purse. I’m driving down Hall Street southbound to go
       back and get the purse and I’d say - I get close to the purse. I can’t say feet or whatever,
       but I’m close to getting this purse. But before I could stop on the brakes, he had - before
       I could stop on the brakes to get the purse, he had hopped out in front of the car.
       …

                                                  5
 
       Q. Were you intending to hit him?
       A. No, sir. I don’t have a cold bone in my body to hit anybody.

On cross-examination, the following exchange occurred:

       Q. And you didn’t tell the police that you were aware [Royston] was one of the owners
       of the car lot when you purchased the car?

       A. No, sir.
       …

       In rebuttal to Appellant’s claims she did not know Royston or why he was demanding

possession of her car and the reason she U-turned was to retrieve her purse, the State called

Officer Banks.

       Q. All right. Did you have occasion to speak with [Appellant] to talk about this case?
       …
       A. She said she was aware of Mr. Royston. He was one of the owners of the business
       that sold her the vehicle.
       Q. Did she indicate knowing why he may have approached her?
       A. Yes. She told me that she was late on her 2 car payments and Mr. Royston was
       actually looking for the vehicle and her - to ask her a couple of questions saying he was
       going to get the vehicle from her.
       Q. And at any point in time, did she mention him having her purse or going after her
       purse?
       A. No.
       …
       Q. What was her statement to you?
       A. She stated that Mr. Royston approached her, like I said, about late payments on her
       vehicle. Mr. Royston said he was looking for the vehicle since July of 2011. The
       incident happened in October. So there became a verbal argument at the pumps at
       Christy’s gas station on Hall Street. At this time, words was [sic] exchanged. She got
       into her vehicle. That’s when Mr. Royston said, ‘I’m taking this vehicle,’ and was in
       between the doorway and the driver’s seat. At this time, [Appellant], she drove off with
       Mr. Royston still attached to the vehicle.
       Q. Okay. And I’m going to approach with a copy of your police report. I want to ask
       you a question about that. Do you remember quoting her from your police report?
       …
       A. She told Mr. Royston that I know I missed several payments, but I was going to pay
       you.
       …
       Q. And then the next paragraph, is that what she told you, that she knew he was the
       owner of the car?
       A. Yes.

                                                 6
 
       At trial, Appellant maintained she did not know who Royston was; she turned her car

around to retrieve her purse; and Royston jumped in front of her car. These positions clearly

were taken by Appellant to portray herself not only as innocent of the assault charge against her,

but moreover as a victim of a strange man physically confronting her, trying to steal her car and

then her purse, and actually jumping on top of her car. Therefore, it was permissible for the

State to counteract Appellant’s version of the events. Any competent testimony that tends to

explain, counteract, repel or disprove evidence offered by defendant may be offered in rebuttal of

the defendant’s testimony or evidence. State v. Gillespie, 401 S.W.3d 560, 563 (Mo.App. E.D.

2013). “If the defendant raises an issue directly or by implication, the prosecutor can present

otherwise inadmissible testimony to counteract the negative inference the defense has injected

into the case.” Id.

       Based on the foregoing, it was not an abuse of the trial court’s discretion to allow the

State to present Officer Banks’s testimony that Appellant had told the police officer at the scene

and at the station afterward that she did in fact know who Royston was and she knew why he

wanted to repossess the Intrepid from her at the gas station, i.e., because he had sold her the car

and she had missed two payments on it. She also never mentioned a purse in any capacity to

Officer Banks. This testimony and Officer Banks’s refreshment of his recollection of

Appellant’s official statement to him the day of the incident by looking at the police report were

proper, relevant and admissible to counteract and rebut Appellant’s version of events to which

she testified at trial. Gillespie, 401 S.W.3d at 563. Accordingly, Point II is denied.

                               Point III – State’s Closing Argument

       Appellant takes issue with the State’s closing argument.




                                                 7
 
        THE
        T   STATE: Did they say
                             s why she did this? I ddon’t think aanybody wouuld understaand
        why
        w someonee would hit someone
                             s        witth a car, but we do know
                                                                w she attemptted to do so.. …
        Why
        W does som
                 mebody shoo ot somebody? Why doess somebody bbeat on theirr child?

(Emphasis added.)

        A trial court has
                      h broad discretion to permit
                                            p      or proohibit statem
                                                                     ments during closing

argumentt, and this Court does no
                                ot reverse thee trial court’s ruling unleess the trial ccourt abusess this

discretion
         n and prejud
                    dices the defe
                                fendant. Statte v. Brown, 337 S.W.3dd 12, 19 (Moo.banc 2011)).

In order for
         f the statem
                    ments to hav
                               ve prejudiced
                                           d Appellant,, there must bbe a reasonaable probabillity

that the verdict
         v       would
                     d have been different haad the statem
                                                         ments been prrohibited. Idd. We find tthere

is no reassonable prob
                     bability the statements
                                  s          afffected the juury’s verdictt, especially in light of thhe

great weiight of evideence demonsstrating Appeellant’s guiltt. Several eyyewitnesses testified theey

observed
       d Appellant drive
                   d     away from
                              fr   the gas station draggging Roystoon, propellinng him into thhe

street beffore turning around and striking him
                                             m with her caar. Given thiis evidence, we concludee

Appellan
       nt was not prrejudiced by the court’s allowance
                                             a         off the statemeents. Accorrdingly, the ttrial

court did
        d not abuse itts discretion in permittin
                                               ng the State tto proceed. Point III is ddenied.

                                               Conclusion
                                               C

        The
        T trial courrt’s judgmen
                               nt is affirmed
                                            d.




                                                         Sherrri B. Sullivaan, P.J.


Mary K. Hoff, J., andd
Philip M. Hess, J., co
                     oncur.




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