State v. MalloryState v. Mallory
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- Before:
- Spinden
On January 8, 1993, in a judge-tried case, Ken Mallory was found guilty of harassment, a class A misdemeanor. The court sentenced him to six months in jail. Mallory appeals, claiming that the triаl court erred when it placed him on parole for two years because that term exceeded the maximum term of his six-month sentence. He also contends that the state did not present sufficient evidence *90to support Ms conviction. We affirm Ms conviction, but reverse the court’s judgment as to sentencing and remand for resеntenc-ing.
Viewing the evidence in the light most favorable to the verdict, the record established that Mallory and Debbie Poindexter had lived in neighboring mobile homes since 1987. Pоindexter also knew Mallory as a frequent customer at a convemence store where she worked. Mallory took a cactus to Pomdexter for her to care for and left clay pots on her doorstep. Mallory told her once that she needed a man in her life. On another occasion Mallory stoppеd by her house while a male friend was visitmg her and said, “May the best man win.” Poindexter received a Valentine’s Day card from Mallory in wMch he wrote, “I wanted you to be my friend forеver and ever and ever. I wanted to add another ‘ever’, but I thought it might be too pushy.” Poindexter complained to a sheriffs deputy about Mallory. She asked the deputy tо tell Mallory that she wanted to be left alone, but the record does not indicate whether the deputy talked to Mallory.
During the summer of 1990, Pomdexter and Mallory enrollеd in the same college course. When Pomdexter moved to a desk across the classroom to get away from Mallory, he followed her. He also followеd her outside the classroom. Poindexter would Mde to avoid him. After two weeks of the four-week course, Poindexter dropped the class.
Poindexter later began receiving numerous hang-up calls. Imtially, no pattern existed to the calls. Later, Pomdexter noticed she received the calls whenever a pickup truck wаs parked in her driveway. Within 15 minutes of the truck’s arrival the calls commenced, and they continued until the truck left. Po-indexter asked the telephone company to trace the calls, but the company did not because of a purported scheduling problem. The hang-up calls contmued, so Pomdexter called DenMs Crane, a deputy sheriff. Crane arranged for a telephone trace.
On January 26, 1991, Poindexter’s friend with the pickup truck visited her at 6:80 A.M. Poindexter received a hang-up call at about 6:45 A.M., and the calls contmued every 15 minutes until 9:00 or 9:15 A.M. The calls stopped for an hour or two before resuming. Poindexter received nine hang-up calls that day. Telеphone company personnel told Crane that they traced Mne calls between 6:50 AM. and 12:17 P.M. on January 26, 1991, to Mallory’s telephone number.
Mallory was found guilty of a class A misdemeanor of harassment and sentenced to six months in the county jail. After the trial court sentenced Mallory, it stayed execution of the sentence so that Mallory could post an appeal bond. Mallory posted the appeal bond on February 10, 1993, and a filed a notice of appeal on February 17, 1998. This court dismissed Ms appeal as untimely on April 7, 1993, and Mallory was subsequently incarcerated. On April 27, 1993, Mallory filed a motion for parole, and the trial court placed him on two years’ parole under the supervision of the Missouri Board of Parole and Probation. Mallory filed a motion to file his appeal out of time with this court on Oсtober 12, 1993. We granted that request.
Mallory contends that the trial court erred when it placed him on two years’ parole because it exceeded the maximum tеrm of his six month sentence. He argues that the court’s order of parole violates
Section 217.730.1 says, “The period served on parole shall be deemed service of the term of imprisonment and ... the total time served may not exceed the maximum term or sentence.” Mallory relies upon State ex rel. Woodmansee v. Appelquist, 687 S.W.2d 176 (Mo. banc 1985), for support of Ms argument that time served on parole must be credited against Ms sentence and that Ms pаrole must not exceed Ms maximum sentence.
In Woodmansee, the Supreme Court of Missouri considered the plight of Timothy Woodmansee who had been sentenced to one yeаr in the county jail after his probation was revoked. After seven months in jail, he was paroled for one year, but near the end of Ms parole, the trial court attempted to revoke *91his parole for an alleged violation. The Supreme Court blocked the revocation pursuant to § 217.730.1. It held that the statute manifested “the intent of the legislature ... to require credit be applied to a sentence for time served on parole-judicial parole or Board parole.” Id. at 177.
To combat Mallory’s reliance on Woodmansee, the state cites
Because
Resentencing is a proper curative measure, State v. Moore, 633 S.W.2d 140, 147 (Mo.App.1982), so we remand for the trial court to modify its order of parole so that the period of parole does not exceed six months. If Mallory’s sentence of six months has already been served through a combination of jail time and parole, the court shall order him discharged.
Mallory also contends that the state did not present sufficient evidence to support his conviction. He argues that the state presented insufficient evidence to convince a rational trier of faсt beyond a reasonable doubt that he intended to disturb Poindexter by making repeated telephone calls. We disagree.
When reviewing the sufficiency of evidenсe, we consider all the evidence, direct and circumstantial, and its inferences in a light most favorable to the verdict, and we reject all contrary evidence and inferences. Our review is limited to determining whether the trier of fact had sufficient evidence from which to find the defendant guilty beyond a reasonable doubt. State v. Koetting, 691 S.W.2d 328, 329-330 (Mo.App.1985).
Mallory was charged with violating
We think it is reasonable to infеr from the facts that Poindexter was bothered by the hang-up calls and wanted them to stop as evidenced by her taking steps to get a trace put on her phone. We also find that it was reasonable for the trial court to conclude that Mallory intended to disturb Poindexter as evidenced by Mallory’s following Poindexter at schoоl and his challenge to Poindexter’s male friend, “May the best man win.”
Mallory contends, in essence, that to prove his intent to disturb, the state had to establish that Poindexter told him tо stop calling her. We disagree. Nine hang-up calls in a five and a half hour period of time coupled with Mallory’s other actions evidences an intent to disturb.
We сonclude that the state presented sufficient evidence to convict Mallory of harassment, but we still reverse the trial court’s judgment because the court exсeeded maximum limits in setting parole. We remand so the trial court may modify its order placing Mallory on two years’ parole.
All concur.
Notes
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