State v. Perryman

851 S.W.2d 776, 1993 Mo. App. LEXIS 581, 1993 WL 118534
CourtMissouri Court of Appeals
DecidedApril 20, 1993
DocketNos. 59826, 61877
StatusPublished
Cited by6 cases

This text of 851 S.W.2d 776 (State v. Perryman) 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. Perryman, 851 S.W.2d 776, 1993 Mo. App. LEXIS 581, 1993 WL 118534 (Mo. Ct. App. 1993).

Opinion

REINHARD, Judge.

Defendant appeals his conviction by a jury of first degree burglary § 569.160, [777]*777RSMo 1986, and second degree robbery, § 569.030, RSMo 1986. He was sentenced by the court as a prior and persistent offender to terms of twenty-three years’ imprisonment on the burglary charge and eight years on the robbery charge, to be served concurrently. After sentencing, defendant filed a Rule 29.15 motion which the motion court denied following an evidentia-ry hearing. These appeals have been consolidated for review pursuant to Rule 29.-15(Z). We affirm the judgments.

The evidence reveals that victim left his locked and unlit home at 4:30 p.m. on June 12, 1990. When he returned home around 8:45 p.m., victim, who lived alone, noticed an unfamiliar car parked in front of his house. The car’s dome light was on and there was a man inside. Victim pulled into his driveway and saw his house “lit up like a Christmas tree.” The car in front of the house pulled away; victim pulled up to the garage and walked to the front door. The door was open and the wooden door frame had been split from top to bottom. Victim entered his home and immediately noticed that his television and stereo were missing. The house was in disarray; things were scattered all over and the floor was covered with glass.

Victim removed his .45 caliber handgun from a nearby drawer and placed a loaded clip into the gun. He entered the bedroom and discovered, defendant standing in the corner. Victim pointed the gun at defendant and directed him to get down onto his knees; defendant replied, “No,” and moved slowly toward victim. Victim repeated his instruction and defendant again responded, “No.” Victim retreated a few paces but defendant continued to approach, advancing right up to victim’s face. Victim pulled the trigger, wounding defendant, although victim did not realize that the bullet had struck defendant. Defendant grabbed the gun and the two men struggled. Victim fell back onto a couch. When victim realized that he was about to lose control of the gun, he flipped a safety on the gun to prevent it from discharging. Defendant seized the gun, pointed it at victim, and stated, “You’ve had it.” Defendant repeated, “You’ve had it”, and strained to pull the trigger, but the gun did not fire. Defendant dropped his hands to his side and leaned against the wall, then ran out the door. Victim called the police.

The police arrived and victim inventoried his possessions. Items missing included a television, stereo, microwave oven, watch, and ring. Blood spots were discovered on the wall where defendant had been leaning, and on the kitchen and hallway floors. These spots were analyzed and found to match defendant’s blood type. Fingerprints lifted at the scene were later positively identified as defendant’s.

Prior to the crime, defendant and another man, James Fitzgerald, had been seen at a local tavern. Witnesses stated that the two men left the bar, were absent for about forty-five minutes, and then returned to the bar. Defendant's girlfriend, Frances Leslie, remained at the tavern and was there when the men returned. Upon his return, defendant asked Ms. Leslie to give him a ride to a friend’s house. He held a jacket against his side and told her that he had been shot. Ms. Leslie and another woman, Dawn Pappert, accompanied him to Ms. Leslie’s car; he put a handgun in Ms. Leslie’s side and directed, “Take me where I want to go.” She refused and returned to the bar, where Ms. Pappert joined her and convinced her to give defendant a ride to the hospital. The two women returned to the car; Ms. Leslie drove while defendant sat in the front seat. Defendant put the gun by Ms. Leslie’s side and stated, “Drive the car or I’ll shoot you, too.” Ms. Leslie stopped the car and told defendant to get out. Ms. Pappert and defendant struggled over the gun; Ms. Pappert removed the clip from the gun and threw it out the window. The three then drove to the hospital, but defendant refused to get out of the car, stating that a bullet remained in the chamber and he would shoot Ms. Leslie if she didn’t comply with his requests.

Ms. Leslie drove defendant to the home of his friends, Barbara and Mike Lococo. Fitzgerald was already at the Lococo residence when they arrived. He entered the house first and asked if the Lococos or [778]*778their three guests would like to buy a microwave oven for ten dollars. Defendant then entered the home; when Mike Lococo attempted to telephone for medical assistance, defendant put his foot on the receiver and prevented the call. Defendant and Fitzgerald left together and were subsequently arrested.

On direct appeal, defendant contends that the trial court plainly erred when it admitted Ms. Leslie’s testimony regarding the threats made by him following the crime, and when it allowed testimony from a St. Louis County Justice Services officer that he had taken defendant’s fingerprints in 1982. Defendant asserts that “[t]he state could have no other purpose in questioning [Ms.] Leslie regarding [defendant’s threats than to show [him] as a bad or violent person,” and that “the jury could only assume” that defendant had been arrested at the time he was fingerprinted. He argues that such testimony was irrelevant and inadmissible evidence of uncharged misconduct and requests that we award him a new trial under plain error review.

Our supreme court has greatly circumscribed the admission of uncharged misconduct evidence. In State v. Bernard, 849 S.W.2d 10 (Mo.1993), the court recently outlined the principles which govern our analysis:

The general rule concerning the admission of evidence of uncharged crimes, wrongs, or acts is that evidence of prior uncharged misconduct is inadmissible for the purpose of showing the propensity of the defendant to commit such crimes. State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307 (Mo. banc 1954). There are exceptions to the rule. Evidence of prior misconduct of the defendant, although not admissible to show propensity, is admissible if the evidence is logically relevant, in that it has some legitimate tendency to establish directly the accused’s guilt of the charges for which he is on trial, State v. Sladek, 835 S.W.2d 308, 311 (Mo. banc 1992) (quoting State v. Reese, 364 Mo. 1221, 274 S.W.2d at 307), and if the evidence is legally relevant, in that its probative value outweighs its prejudicial effect. State v. Mallett, 732 S.W.2d 527, 534 (Mo. banc), cert. denied, 484 U.S. 933, 108 S.Ct. 309, 98 L.Ed.2d 267 (1987). The balancing of the effect and value of evidence rests within the sound discretion of the trial court. See State v. Shaw, 636 S.W.2d 667, 672 (Mo. banc), cert. denied, 459 U.S. 928, 103 S.Ct. 239, 74 L.Ed.2d 188 (1982).
Generally, evidence of other, uncharged misconduct has a legitimate tendency to prove the specific crime charged when it “ ‘tends to establish: (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; [or] (5) the identity of the person charged with the commission of the crime on trial.’ ” State v. Sladek, 835 S.W.2d at 311 (quoting

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Bluebook (online)
851 S.W.2d 776, 1993 Mo. App. LEXIS 581, 1993 WL 118534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-perryman-moctapp-1993.