State v. Holmes

830 S.W.2d 460, 1992 Mo. App. LEXIS 605, 1992 WL 66742
CourtMissouri Court of Appeals
DecidedApril 7, 1992
DocketNos. 58270, 60446
StatusPublished
Cited by7 cases

This text of 830 S.W.2d 460 (State v. Holmes) 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. Holmes, 830 S.W.2d 460, 1992 Mo. App. LEXIS 605, 1992 WL 66742 (Mo. Ct. App. 1992).

Opinions

AHRENS, Judge.

In this jury-tried case, appellant, Jon E. Holmes, appeals his conviction of receiving stolen property having a value of at least $150, a class C felony. Section 570.080 RSMo 1986. Appellant was sentenced as a prior and persistent offender to fifteen years’ imprisonment to be served consecutively with previous sentences. We have consolidated appellant’s direct appeal with his appeal from the denial without an evi-dentiary hearing of his Rule 29.15 motion for post-conviction relief. We affirm the judgments of the trial court and the motion court.

University City police arrested appellant on September 9, 1988, for an assault committed in the City of St. Louis. During an inventory search of appellant the police found a pawn ticket in appellant’s wallet. Appellant told the police the ticket was for a gold nugget ring his girl friend had given him three months earlier.

Upon presenting the ticket to Stan’s Loan and Jewelry Company, the police learned the ticket was for a Yale University 1983 class ring pawned for $50 on September 8, 1988. An employee at the pawn shop identified appellant as the person who had pawned the ring. The initials of the ring’s owner were engraved on the ring, which had been stolen during a burglary of the owner’s University City apartment on September 1, 1988.

In his first point on direct appeal, appellant alleges the trial court erred in denying his motion for judgment of acquittal at the close of the entire case, because there was insufficient evidence to establish the victim’s property had a market value of at least $150. “Value,” as used in § 570.-080.3, is “the market value of the property [462]*462at the time and place of the crime, .... ” § 570.020(1) RSMo 1986. The ring’s owner testified he purchased the ring in 1983 for $200 to $250.

Appellant relies on New York case law which provides the amount the owner paid for an item is insufficient to establish the item’s value in a prosecution for the felony degree of larceny. See People v. Desir, 124 A.D.2d 742, 508 N.Y.S.2d 478 (1986). Appellant’s reliance is misplaced. Under Missouri law, purchase price and age are sufficient by themselves to establish value under § 570.020. State v. Napper, 381 S.W.2d 789 (Mo.1964); State v. Williams, 643 S.W.2d 3, 5 (Mo.App.1982). Because the ring was introduced into evidence, it was available for the jury to examine and to determine its condition. There was sufficient evidence to establish the ring’s value was at least $150. Point one is denied.

Appellant alleges in his second point that the trial court erred in overruling his motion in limine and in allowing the state to introduce and repeat evidence of appellant’s arrest for an unrelated crime. Appellant contends the evidence “was probably used as substantive evidence of guilt....”

Defense counsel filed a motion in limine, requesting the state be required to instruct its witnesses not to mention other crimes during trial. The trial court reserved its ruling on the motion until trial.

During opening statement, the prosecutor referred to appellant being arrested and booked on an “unrelated charge.” The arresting officer stated on direct examination that he had arrested appellant on “an unrelated fugitive charge.” Another officer testified he determined appellant was a “wanted person.” ' During his closing argument, the prosecutor referred to the arresting officer’s testimony that appellant was arrested “on an unrelated charge.”

Defense counsel raised no objection to the officers’ testimony or the prosecutor’s statements. Further, trial counsel did not raise the issue in appellant’s motion for new trial. Since the issue was not properly preserved, our review is limited to determining if the references to the unrelated charge constituted plain error. Rule 30.20.

To succeed on a claim of plain error, appellant “must make a strong showing that the alleged error affected substantial trial rights and amounted to manifest injustice.” State v. Bolen, 731 S.W.2d 453, 461 (Mo.App.1987). “[Ejvidence of other crimes is admissible only where it has a legitimate tendency to establish that defendant is guilty of the immediate crime charged.” State v. Trimble, 638 S.W.2d 726, 732 (Mo. banc 1982). “[Rjelevance, not prejudice, is the touchstone of due process.... ” Id. Whether the probative value of a piece of evidence outweighs its prejudicial effect, rests within the discretion of the trial court. Id.

Appellant relies on State v. Negron, 374 S.W.2d 622 (Mo.App.1963) where plain error affecting the defendant’s substantial rights was found to have resulted when the state’s witness was allowed to testify the defendant committed a similar offense in her presence prior to the commission of the charged crime. Id. at 624-5. In contrast, the evidence before the jury in the present case was that defendant was arrested on an unrelated fugitive charge. The state did not reveal the nature of that unrelated charge. Although the word “fugitive” may carry negative connotations and could easily have been omitted, the state made no reference to a similar crime. Negron is not controlling.

Moreover, evidence of appellant’s guilt was strong. The burglary and theft of the ring occurred on September 1, 1988. Appellant pawned the ring on September 8, 1988. When appellant was arrested the following day, he gave a false name to the police and a false explanation of the pawn ticket. It would have been nearly impossible to explain the circumstances under which the pawn ticket was found without indirectly informing the jury that appellant was under arrest on an unrelated charge. See State v. Hampton, 648 S.W.2d 162, 166 (Mo.App.1983). Thus, under the facts and circumstances of this case, the references to the unrelated charge did not prejudice [463]*463appellant, result in manifest injustice, or result in a miscarriage of justice.

Appellant also claims under point two that the motion court clearly erred in denying his Rule 29.15 motion without an evidentiary hearing, because trial counsel’s failure to object to the evidence or preserve the point for review constituted ineffective assistance of counsel.

Our review of a 29.15 motion “shall be limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous.” Norfolk v. State, 783 S.W.2d 439, 440 (Mo.App.1990); Rule 29.15(j). Under Rule 29.15(g), “no evidentiary hearing is required if the files and record of the case conclusively demonstrate that appellant is entitled to no relief.” State v. Fitzgerald, 781 S.W.2d 174, 188 (Mo.App.1989). “Further, an evidentia-ry hearing is warranted only if: (1) the Rule 29.15 motion alleges facts, not conclusions, warranting relief; (2) the facts alleged raise matters unrefuted by the files and record of the case; and (3) the matters complained of resulted in prejudice to appellant's defense.” Id.

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Bluebook (online)
830 S.W.2d 460, 1992 Mo. App. LEXIS 605, 1992 WL 66742, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-holmes-moctapp-1992.