State v. Holland

781 S.W.2d 808, 1989 Mo. App. LEXIS 1842, 1989 WL 153485
CourtMissouri Court of Appeals
DecidedDecember 19, 1989
Docket55082
StatusPublished
Cited by18 cases

This text of 781 S.W.2d 808 (State v. Holland) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Holland, 781 S.W.2d 808, 1989 Mo. App. LEXIS 1842, 1989 WL 153485 (Mo. Ct. App. 1989).

Opinion

CARL R. GAERTNER, Presiding Judge.

Defendant appeals his jury conviction of three counts of felony stealing in violation of Section 570.030, RSMo.1986, on which he was sentenced to consecutive seven year terms of imprisonment and fines of Five Thousand Dollars on each count. We affirm.

The evidence adduced at trial revealed that defendant was a real estate broker, doing business as Holland House Realty and Investment Company, Inc. (Holland House). In the course of his business he either bought property through the corporation to resell or he offered a listing service and received commissions from those sales. Much of the real estate defendant purchased for resale was located at Rocky Ridge Ranch in Ste. Genevieve County, Missouri.

Count One involved the following transaction. In June, 1985, James Beckerman wanted to sell his house at Rocky Ridge Ranch and listed the house with defendant. Defendant then located a buyer, Pauline Higgins. Higgins signed a contract to buy the house on September 15, 1985, and gave defendant a Five Hundred Dollar ($500.00) deposit at that time. The closing was set for October 5, 1985, and at that time Higgins gave defendant two checks with which to complete the sale. One check was for approximately Twenty-nine Thousand Five Hundred Dollars ($29,500) and the other for approximately Five Thousand ($5,000) Dollars. Defendant placed the Five Thousand Dollar ($5,000) check in the Holland House escrow account, and deposited the other check into Holland House’s regular corporate account. Within two weeks both accounts were nearly dissipated, but none of the money was expended in connection with the Beckerman-Higgins sale. At no time did Higgins authorize defendant to use the money except in connection with the purchase of Beckerman’s house.

The facts leading to the second count began on July 8, 1985, when James and Carmaline Hammond signed a contract to buy a cabin at Rocky Ridge Ranch. In exchange for the cabin, the Hammonds gave defendant a cabin and lot worth Nine Thousand Dollars ($9,000), a lot at Rocky Ridge worth Three Thousand Dollars ($3,000), and a boat worth Two Thousand Five Hundred Dollars ($2,500). Defendant represented the title to the new cabin was free and clear. The truth was defendant had encumbered the property with a deed of trust to secure a loan made to him for Four Thousand Six Hundred Thirty-six Dollars and Sixty-four Cents ($4,636.64) just five weeks prior to the Hammond sale. In May, 1986, the Hammonds were contacted by the bank that held the deed of trust. In order to retain ownership of their cabin, the Hammonds paid the bank approximately Five Thousand One Hundred Dollars ($5,100), the balance of the loan plus interest.

The facts surrounding the third count involved a transaction with James and Eleanor Cummings. The Cummings signed a contract to purchase a home from defendant at Rocky Ridge Ranch. In exchange for the home defendant received from the Cummings a Fifteen Thousand Dollar ($15,-0Ó0) cabin, Twenty-one Thousand Dollars ($21,000) cash, and a promissory note for Four Thousand Dollars ($4,000). Defendant represented the house to be free and clear of encumbrances. The Cummings paid the note off in May, 1984, and received from defendant a general warranty deed for the house. The property, however, was encumbered by two deeds of trust securing two loans made to Holland House. One loan was made on January 12, 1981, for Twenty-seven Thousand Dollars ($27,000), and the other was made on June 17, 1983, for Twenty-two Thousand Dollars ($22,-000). Those loans were foreclosed on in October of 1987, and the Cummings lost their home.

Defendant raises five points on appeal, the first three of which relate to the introduction of certain evidence.

*811 In his first point, defendant argues that the introduction at trial of a copy of a rights waiver form used by Deputy Claussen of the Ste. Genevieve County Sheriffs Department in questioning defendant was improper because no foundation was laid and it violated the best evidence rule. We disagree for two reasons. First, the best evidence rule applies where the contents of a writing are in issue and the secondary evidence is offered to establish the terms of the writing. Lewis v. Bucyrus-Erie, Inc., 622 S.W.2d 920, 924 (Mo. banc 1981); State v. Curry, 473 S.W.2d 747, 748 (Mo.1971). Here, there was no dispute regarding the contents of the rights waiver form. Moreover, Deputy Claussen testified without objection to his administration of the Miranda Warnings to defendant and to the latter’s response to each of the questions on the form. The best evidence rule does not apply where the facts contained in the documentary evidence are independently proven. Guthrie v. Missouri Methodist Hosp., 706 S.W.2d 938, 943 (Mo.App.1986); State v. Prince, 628 S.W.2d 920, 921 (Mo.App.1982).

For the same reasons we find no merit in defendant’s complaint of trial court error in the admission of copies of two checks written by Pauline Higgins to complete the purchase of the Beckerman property. Additionally, defendant testified at length concerning these checks and admitted depositing them in his corporate bank accounts and using the proceeds to pay corporate expenses. Reversible error cannot be predicated upon the admission of evidence which the defendant later confirms by his own testimony. State v. Smith, 679 S.W.2d 424, 427 (Mo.App.1984).

Defendant also alleges error in the admission of evidence of the transcript of his taped statement to Deputy Claussen because of lack of foundation and violation of the best evidence rule. On appeal defendant argues that the evidence regarding the tape recording from which the transcript was taken failed to meet all of the requirements set forth in State v. Spica, 389 S.W.2d 35, 44 (Mo.1965) for the admission of such evidence. At trial, defendant’s objection consisted of the bare generalization “there has been no proper foundation.” In State v. Cannady, 660 S.W.2d 33, 35 (Mo.App.1983) we held an objection, “lack of foundation, subject to my cross,” inad-quate to preserve the matter for review as it was “not sufficiently specific to alert the trial court to the grounds of excluding the evidence.” In State v. Jones, 569 S.W.2d 15, 16 (Mo.App.1978) we noted “[i]t is particularly important that where an inad-quate foundation had been laid for admission of evidence that the objection made be specific as such foundation deficiencies can frequently be remedied.”

At trial no objection concerning a best evidence rule violation regarding the transcript was made at all. Moreover, having at defendant’s request deleted prejudicial portions of the tape recording, the trial court was well within the parameters of its discretion to consider the tape to be “unavailable” evidence, and in allowing as secondary evidence the transcript with the prejudical content deleted as a precautionary measure to protect the defendant. See State v. King, 557 S.W.2d 51, 54 (Mo.App.1977).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Douglass
544 S.W.3d 182 (Supreme Court of Missouri, 2018)
State of Missouri v. Michael J. Frese
487 S.W.3d 71 (Missouri Court of Appeals, 2016)
State v. Sutton
320 S.W.3d 729 (Missouri Court of Appeals, 2010)
State v. Tolen
304 S.W.3d 229 (Missouri Court of Appeals, 2009)
State v. Kula
616 N.W.2d 313 (Nebraska Supreme Court, 2000)
State v. Wilson
573 N.W.2d 248 (Supreme Court of Iowa, 1998)
State v. Brown
949 S.W.2d 639 (Missouri Court of Appeals, 1997)
State v. Eastburn
950 S.W.2d 595 (Missouri Court of Appeals, 1997)
State v. Williams
948 S.W.2d 429 (Missouri Court of Appeals, 1997)
State v. Wagoner
935 S.W.2d 786 (Missouri Court of Appeals, 1996)
State v. Keller
870 S.W.2d 255 (Missouri Court of Appeals, 1994)
State v. Swigert
852 S.W.2d 158 (Missouri Court of Appeals, 1993)
State v. Lacy
851 S.W.2d 623 (Missouri Court of Appeals, 1993)
State v. Yarber
829 S.W.2d 479 (Missouri Court of Appeals, 1992)
State v. Wishom
824 S.W.2d 101 (Missouri Court of Appeals, 1992)
State v. Miller
815 S.W.2d 28 (Missouri Court of Appeals, 1991)
State v. Lachterman
812 S.W.2d 759 (Missouri Court of Appeals, 1991)
State v. Barton
792 S.W.2d 663 (Missouri Court of Appeals, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
781 S.W.2d 808, 1989 Mo. App. LEXIS 1842, 1989 WL 153485, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-holland-moctapp-1989.