                      In the Missouri Court of Appeals
                              Eastern District
                                             DIVISION TWO

STATE OF MISSOURI,                                     )    No. ED100713
                                                       )
           Plaintiff/Respondent,                       )    Appeal from the Circuit Court
                                                       )    of the City of St. Louis
v.                                                     )
                                                       )
JOHN L. DAILEY,                                        )    Honorable Margaret M. Neill
                                                       )
           Defendant/Appellant.                        )    Filed: December 9, 2014

                                                Introduction

           John L. Dailey (Appellant) appeals from the trial court’s judgment entered upon a

jury verdict convicting him of first-degree murder, Section 565.020,1 first-degree assault,

Section 565.050, and two counts of armed criminal action, Section 571.015. We affirm

in part, and reverse and remand in part.

                                  Factual and Procedural Background

           The evidence adduced at trial, viewed in the light most favorable to the verdict, is

as follows.

           On September 21, 2011, at approximately 10:30 p.m., Ashley McLarty (McLarty)

was driving south on North Broadway. Christopher Jones (Jones) was riding in the front

passenger seat of McLarty’s vehicle. At the intersection of North Broadway and Wall

Street, Appellant, driving a pickup truck, pulled out from Wall Street, past the stop sign

1
    All statutory references are to RSMo 2006, unless otherwise indicated.
and part of the way into Broadway. McLarty swerved to avoid being struck, stopped, and

then yelled, “Slow down.” After driving away, McLarty noticed the pickup truck coming

behind her as if it was going to ram the back of her car. While McLarty was stopped at a

stop sign at the intersection of Hornsby and North Broadway, Appellant stopped next to

her car and both parties rolled down their windows. Appellant said “wasn’t nobody

gonna hit your car[,]” to which McLarty responded “watch where the f--- you goin’.”

Appellant then pulled out a gun and said “shut up, bitch or I’ll shoot you.” McLarty

drove off.

        McLarty testified she did not hear any gun shots but that Jones said, “He shot

me.” McLarty pulled over to the side of the road and Appellant sped off past them.

Jones opened the passenger side door, fell out of the car and onto the ground. Jones died

from a single gunshot wound to the chest from a .40 caliber handgun. It was later

determined that the bullet went through the rear driver’s side window of McLarty’s

vehicle and through the driver’s seat before striking Jones in the back.

       Adrian Mason (Mason) testified that on September 21, 2011, at approximately

10:30 p.m., he was driving north on North Broadway. He was stopped at the intersection

of Hornsby and North Broadway when he saw two vehicles, one of them a GMC pickup

truck with a black front end, stopped at the intersection facing south. Mason saw a flash

of light and then the pickup truck drove toward him, forcing Mason to swerve off the

road and onto the curb in order to avoid the truck. Mason was not able to see the driver.

Mason testified the other vehicle pulled over and he made a U-turn to pull behind the car.

Mason saw a woman run toward the passenger side, open the door, and a man fall out of




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the car. Mason drove to his workplace, about a block away, and alerted security, who

called the police.

       On September 29, 2011, McLarty was hanging out with some people near the

intersection of Hornsby and North Broadway when she saw Appellant driving the pickup

truck down Hornsby. Jones’s brother, who was present, got into his car, followed the

truck and obtained its license plate number. McLarty called and left a message with this

information for homicide Detective Scott Sailor (Detective Sailor). On October 3, 2011,

McLarty saw the truck again, this time parked outside of a home on Claxton, information

she again forwarded to Detective Sailor.

        Detective Sailor testified McLarty directed him to 5481 Claxton, located

approximately a quarter of a mile from the intersection of Hornsby and North Broadway,

and gave him the license plate number she had obtained. Sailor’s research indicated

Appellant owned the truck. McLarty subsequently identified Appellant as the shooter in

a photo spread and in a physical lineup. Appellant’s truck, a 1991 GMC pickup with a

dark blue passenger door and right front quarter panel, was impounded. Both Mason and

McLarty identified Appellant’s vehicle as the one involved in the September 21 incident.

       Appellant presented an alibi defense, asserting he had taken his children out to

dinner that evening, returning home with them between 10:30 and 11:00 p.m. Appellant

also asserted he had a white refrigerator in the bed of his truck on the day in question.

       The State charged Appellant, as a prior offender, with first-degree murder (Count

I), first-degree felony assault (Count III), and two counts of armed criminal action

(Counts II and IV). At the close of the evidence, the jury found Appellant guilty on all

four counts. The court sentenced Appellant to life without the possibility of parole on




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Count I and 20 years’ imprisonment on each of the remaining counts, all sentences to run

concurrently. This appeal follows.

                                         Discussion

                           Point I – Sufficiency of the Evidence

       In his first point on appeal, Appellant argues the trial court erred in overruling his

motion for judgment of acquittal and sentencing him for first-degree murder because

there was insufficient evidence as a matter of law from which a reasonable juror could

have found beyond a reasonable doubt the element of deliberation required for the

offense.

       On review of a challenge to the sufficiency of the evidence supporting a criminal

conviction, this Court determines whether there was sufficient evidence from which a

reasonable juror could find the defendant guilty beyond a reasonable doubt. State v.

Jordan, 181 S.W.3d 588, 592 (Mo. App. E.D. 2005). In determining whether sufficient

evidence supports the jury’s verdict, this Court considers the evidence, and the reasonable

inferences drawn therefrom, in the light most favorable to the verdict, disregarding all

contrary evidence and inferences. Id. If the State fails to produce sufficient evidence of

each element of the offense, we must reverse the trial court’s judgment. Id. It is the

jury’s duty to assess the reliability, credibility, and weight of the witness’s testimony.

State v. Giles, 949 S.W.2d 163, 166 (Mo. App. W.D. 1997).

       A person commits first-degree murder when he “knowingly causes the death of

another person after deliberation upon the matter.” Section 565.020.1. Deliberation is

defined as “cool reflection for any length of time no matter how brief[.]” Section

565.002(3). Deliberation occurs when the actor has time to think and intends to kill the




                                              4
victim for any period of time, no matter how short. State v. Hudson, 154 S.W.3d 426,

429 (Mo. App. S.D. 2005). Deliberation may be inferred from the circumstances

surrounding the crime. Id. A lack of concern for and a failure to attempt to aid the

victim supports an inference of deliberation. State v. Moore, 949 S.W.2d 629, 633 (Mo.

App. W.D. 1997).

       Appellant asserts the State failed to present sufficient evidence supporting a

finding of deliberation, arguing the evidence only supports a finding that Appellant was

acting under the influence of a violent passion suddenly aroused by the traffic dispute and

ensuing argument. We disagree.

       After almost colliding with McLarty’s vehicle, McLarty shouted at Appellant to

“slow down.” This prompted Appellant to aggressively pursue McLarty and instigate an

argument. After doing so, Appellant brandished a gun and threatened to shoot McLarty,

prompting McLarty to try to drive away. Although McLarty was fleeing, Appellant fired

a shot into McLarty’s car, killing Jones. As McLarty pulled over to aid Jones, Appellant

sped away without providing Jones any aid or seeking any assistance.

       In sum, Appellant pursued the victims, made verbal and physical threats against

them, shot at them while they fled, and then sped away leaving Jones for dead. These

actions provided the jury with sufficient evidence of deliberation. We find the State

produced sufficient evidence from which a reasonable trier of fact could find Appellant

guilty beyond a reasonable doubt of first-degree murder. Appellant’s Point I is denied.

                       Point II – Sentence for First-Degree Assault

       In his second point on appeal, Appellant maintains the trial court plainly erred in

sentencing him to a term of years for the class B felony of assault in the first-degree that




                                              5
exceeded the maximum term of imprisonment for a class B felony, and that this

unauthorized sentence violated Appellant’s substantial rights and resulted in manifest

injustice. The State concedes the point and we agree.

           To obtain relief under the plain-error rule, a defendant must demonstrate that the

trial court committed an evident, obvious, and clear error that substantially affected his

rights, resulting in manifest injustice or a miscarriage of justice. State v. Greer, 348

S.W.3d 149, 153-54 (Mo. App. E.D. 2011); Rule 30.20.2 “An unauthorized sentence

affects substantial rights and results in manifest injustice.” Greer, 348 S.W.3d at 154. It

is plain error for the trial court to impose a sentence in excess of that authorized by law.

Id.

           Appellant was charged with and convicted of first-degree assault, a Class B

felony as a prior offender. Section 565.050. Appellant was not charged as a persistent

offender, which would have authorized a Class A felony sentence with a 10- to 30-year

term of imprisonment. Sections 558.016.7(2) and 558.011.1(1). The authorized term of

imprisonment for a class B felony is “a term of years not less than five years and not to

exceed fifteen years[.]” Section 558.011.1(2). Because the maximum sentence

Appellant could have received was 15 years’ imprisonment, the trial court plainly erred

when it imposed a sentence of 20 years’ imprisonment on Count III for first-degree

assault.

           We reverse the trial court’s judgment with respect to Appellant’s sentence for

Count III, first-degree assault, and remand with instructions for the trial court to

resentence Appellant in accordance with our holding. In all other respects, we affirm the

trial court’s judgment.
2
    All rule references are to Mo. R. Crim. P. 2012.


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                                         Conclusion
                                         C

       The judgm
               ment of the trial
                           t     court is affirmed in part, and revversed and rremanded in

part for
     f further prroceedings consistent
                            c          wiith this opiniion.




                                               Sherri B
                                                      B. Sullivan, P
                                                                   P.J


Maryy K. Hoff, J.,, and
Philip
     p M. Hess, J.,
                J concur




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