State v. McCracken

948 S.W.2d 710, 1997 Mo. App. LEXIS 1217, 1997 WL 360791
CourtMissouri Court of Appeals
DecidedJune 30, 1997
DocketNos. 19891, 20921
StatusPublished
Cited by5 cases

This text of 948 S.W.2d 710 (State v. McCracken) 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. McCracken, 948 S.W.2d 710, 1997 Mo. App. LEXIS 1217, 1997 WL 360791 (Mo. Ct. App. 1997).

Opinion

PER CURIAM.

Following a jury trial, Billy Joe McCracken (Defendant) was convicted of burglary in the second degree, in violation of § 569.170,1 and sentenced to five years’ imprisonment. Defendant’s appeal from that conviction is Case No. 19891.

Defendant later filed a motion under Rule 29.15, seeking post-conviction relief. His appeal in Case No. 20921 is from the denial of that motion following an evidentiary hearing. Pursuant to Rule 29.15(i), the appeals have been consolidated, but we will address them separately in this opinion.

As the sufficiency of the evidence to support the verdict is not challenged, we present [712]*712only the evidence necessary for consideration of Defendant’s contentions on appeal.

Defendant and Darci McCracken were married on May 21, 1989; they had a son, Dallas, born on October 10, 1991; they separated on July 1, 1992; and Darci filed a petition for dissolution of marriage on August 3, 1992. On February 27, 1993, Darci left her apartment in Springfield shortly after 8:00 p.m. and, after taking Dallas to a babysitter, met her date for the evening. During the course of the night, Darei’s pager activated two times. Upon checking her voice mail messages, she discovered that both messages were left by Defendant. One of the messages referred to a Valentine card she had left in her briefcase in her apartment. The other message included the following: “You ignorant, f_bitch. I can get your f_.job any G_d time I f_want to, and don’t you forget it.”

When Darci returned to her apartment early the next morning, she discovered that ketchup and barbecue sauce had been thrown on the walls, windows, and carpet. In addition, items on a glass top table had been dumped on the floor, her computer table was overturned and the computer had been thrown against the wall, the drawers of her dresser were emptied on the floor, and Dallas’s crib was overturned. Darci called the police and reported the following items missing: work papers, personal financial files, pictures of Dallas, some of her clothes, her glasses, a camera, a tape recorder, a personal diary, an extra set of keys to her apartment and ear, and her briefcase, which contained work papers and personal items, including the Valentine card which had been the subject of some of Defendant’s remarks in one of the phone messages earlier that evening.

On March 3, 1993, Defendant’s home was searched by law enforcement officers, but none of the items missing from Darci’s apartment were found. In May 1993, however, Defendant’s first wife discovered some of Darci’s missing property in a storage shed in the backyard of her home and notified the police. Included in the recovered items were the Valentine card and the tape recorder.

Darci moved to West Plains in May, 1993, but her home there was burglarized in November, 1993. On April 11, 1994, she received an envelope at her work addressed to Dallas, in Defendant’s handwriting. Among other things, the envelope contained photocopies of several pages of a diary that had been stolen during the break-in at her home in West Plains, as well as a photocopy of a letter written to Darci by another man, which had been in the briefcase that was stolen from her apartment on February 27, 1993. In May, 1994, Defendant, while being interviewed by a deputy sheriff, gave the officer one of the photographs which Darci said had been stolen from her apartment.

At trial, Darci testified to the following: Defendant suspected that she had been having an affair with her work supervisor, and had threatened to prove it so they would be fired from their jobs; Defendant had called the supervisor’s wife to warn her of the alleged affair; after the separation, Defendant had “problems” with Darci dating other men and had physically confronted them on two separate occasions; Defendant had physically assaulted her during the marriage; despite Darci’s seventy-five calls to the police, Defendant continued to harass her after the separation, and his attitude never changed.

Darci’s work supervisor [Ron] testified that Defendant harassed him and his wife, alleging that he was having an affair with Darci. He also testified that he had received threatening phone calls from Defendant, and that Defendant had told him that there was a “bug” on Darci’s telephone.

Although Defendant was initially represented by counsel following his indictment on second-degree burglary, he elected to proceed pro se at trial. Defendant testified that when the burglaiy occurred, he was with another woman, but he failed to produce her at trial to corroborate his alibi. He admitted that he left the two recorded messages for Darci on the night of the burglary, but denied breaking into her apartment.

After hearing all of the evidence, the jury found Defendant guilty of second-degree burglary, and the trial court sentenced Defendant to five years in prison.

[713]*713Case No. 19891

In Defendant’s direct appeal from Ms conviction, he presents one point relied on for our consideration:

The trial court plainly erred in allowing the State to elicit and argue evidence that [Defendant] had “problems” with Darci seeing other men, that [Defendant] had threatened and harassed Darci and Ron, that [Defendant] had physically assaulted other men, that Darci’s house in West Plains had been broken into and [Defendant] had property taken from that house, that [Defendant] had physically assaulted Darci, that Darci had called the police on [Defendant] seventy-five times and his attitude never changed, that [Defendant] harassed Ron’s wife, and that [Defendant] “bugged” Darci’s telephone, ... in that the evidence was not legally relevant because its prejudicial effect outweighed its probative value and was inadmissible proof of bad character and propensity to commit the offense charged, resulting in manifest injustice.

As Defendant acknowledges in his point relied on, our review of this point is confined to plain error under Rule 30.20, because Defendant failed to object to the admission of the evidence of wMeh he now complains, and failed to raise the matter in Ms motion for new trial. See State v. Watts, 813 S.W.2d 940, 943 (Mo.App. E.D.1991). Relief will be granted under the plain error rule only when the error so substantially affects the rights of the accused that a manifest mjustice or miscarriage of justice inexorably results if left uncorrected. State v. Fleer, 851 S.W.2d 582, 592 (Mo.App. E.D. 1993). The burden of demonstrating that the action of the trial court resulted m manifest mjustice is allocated to the defendant. Id.

Defendant argues that “[t]he State went to great lengths to demonstrate [Defendant’s] bad character in order to infer Ms guilt of the crime charged”; “[a] criminal defendant has the right to be tried only for the crime with which he is charged”; and that “[e]vidence of uncharged crimes or acts is not admissible to show that the defendant has a propensity to commit crimes such as the crime charged.”

Evidence of uncharged crimes, wrongs, or acts is inadmissible for the purpose of showmg the propensity of the defendant to commit the charged crime. Such evidence is admissible, however, if it is both logically and legally relevant.

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Cite This Page — Counsel Stack

Bluebook (online)
948 S.W.2d 710, 1997 Mo. App. LEXIS 1217, 1997 WL 360791, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mccracken-moctapp-1997.