State v. Strauss

893 S.W.2d 890, 1995 Mo. App. LEXIS 417, 1995 WL 89859
CourtMissouri Court of Appeals
DecidedMarch 7, 1995
DocketNos. WD 48732, WD 49738
StatusPublished
Cited by6 cases

This text of 893 S.W.2d 890 (State v. Strauss) 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. Strauss, 893 S.W.2d 890, 1995 Mo. App. LEXIS 417, 1995 WL 89859 (Mo. Ct. App. 1995).

Opinion

LAURA DENVIR STITH, Judge.

Defendant-appellant Steven Strauss appeals from a judgment of the Circuit Court of Henry County convicting him of two counts of receiving stolen property, a class C felony under section 570.080, RSMo 1986. Mr. Strauss was sentenced to twenty years imprisonment on each count, to be served concurrently. On appeal, Mr. Strauss contends that (1) the trial court abused its discretion in overruling his pretrial motion to sever, (2) the trial court erred by submitting jury instructions which incorrectly defined reasonable doubt, and (3) the post-conviction motion court erred by not finding that Mr. Strauss’ post-conviction counsel abandoned him and thus failed to comply with Rule 29.15(e).

We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The facts relevant on appeal are as follows:

Mr. Strauss was convicted on two separate counts of receiving stolen property. On April 13,1992, a 1985 Black Silverado pick-up worth approximately $6,000.00 was stolen from a parking lot at the owner’s place of work. At approximately 10:30 p.m. on April 16, 1992, Bill Huston, an undercover police officer for West Central Missouri Task Force, purchased the same 1985 Silverado pickup from Mr. Strauss for $900.00. Mr. Strauss informed the undercover officer that he would page the undercover officer if he got any more “stolen vehicles.”

At approximately 8:45 p.m. on April 16, 1992, Mr. Strauss paged Officer Huston and informed him he had a 1987 Dodge 4x4 that he wanted to sell. They agreed to meet that night at 10:30 p.m. That night a 1987 Dodge 150 truck was stolen from a parking lot at an apartment complex sometime after 10:00 p.m. At approximately 10:30 p.m., Officer Huston purchased the same Dodge truck from Mr. Strauss for $1,000.00. Mr. Strauss did not have the keys for the truck so a screwdriver was used to start the engine.

Mr. Strauss did not offer any evidence in his defense at trial. At the close of all the evidence, the jury found Mr. Strauss guilty of two counts of receiving stolen property. Mr. Strauss raises three points on appeal.

II. LEGAL ANALYSIS

A. Severance of Counts

In his first point, Mr. Strauss argues that the trial court erred in overruling his motion to sever the two offenses. Mr. Strauss contends that he was unduly prejudiced because trying the counts together allowed the jury to consider evidence of his guilt on one count as evidence of his guilt on the other count. Mi'. Strauss also contends that he may have testified as to one of the offenses if tried separately but he was precluded from doing so because the offenses were tried together.

An appellate court normally reviews a claim for severance of offenses by examining two issues. State v. Sims, 764 S.W.2d 692, 696 (Mo.App.1988). First, the court must determine whether the offenses were properly joined in the indictment under Rule 23.05; second, the Court must determine whether severance should have been ordered under Rule 24.07.

[892]*892[J]oinder addresses the more basic question of what crimes can be charged in a proceeding while severance presupposes proper joinder and leaves to the discretion of the trial court the determination of whether prejudice may or would result if charges properly joined were tried together.

State v. Harris, 705 S.W.2d 544, 547 (Mo.App.1986). Mr. Strauss concedes that the two counts were properly joined in this case. Therefore, we proceed to determine whether severance should have been granted.

Denial of a motion to sever will be reversed only if the defendant can show both an abuse of discretion and a “particularized showing of substantial prejudice.” Rule 24.07(b); State v. Olds, 831 S.W.2d 713, 719 (Mo.App.1992); Sims, 764 S.W.2d at 697. Section 545.885, RSMo 1994, defines “substantial prejudice” as “a bias or discrimination against the defendant or the state which is actually existing or real and not one which is merely imaginary, illusionary, or nominal.”

In determining whether to grant a motion to sever, the trial court weighs the benefits of trying the offenses simultaneously and thereby saving judicial time against the potential prejudice to appellant. Olds, 831 S.W.2d at 719. In assessing prejudice, the court should consider, among other relevant factors, “the number of offenses charged, the complexity of the evidence to be offered, and whether the trier of fact can realistically distinguish the evidence and apply the law intelligently to each offense.” Sims, 764 S.W.2d at 697.

Mr. Strauss alleges that trying the counts together allowed the jury to hear evidence of his guilt on one count as evidence of his guilt on another count, citing State v. Davis, 738 S.W.2d 517, 518 (Mo.App.1987). Rejecting a similar argument, State v. Johnson, 753 S.W.2d 576 (Mo.App.1988), held that the mere fact that evidence of one crime would not be admissible as proof of another crime if the two were tried separately does not mandate severance, for if it did the rule allowing joinder of offenses would be unduly undermined. While Johnson cautioned that “trial courts must be alert to the danger that a jury may use the cumulative evidence of all crimes to convict an accused of a particular crime where the evidence of that crime alone is insufficient,” the court added that this “danger disappears when the accused’s conduct on several separate occasions can properly be examined in detail, and the only consideration is whether the trial as a whole may not become too confused for the jury.” Id. at 586 (citations omitted).

In State v. Meder, 870 S.W.2d 824, 830 (Mo.App.1993), this Court stated it would follow the rule as stated in Johnson rather than that stated in Davis. The Missouri Supreme Court recently utilized this same rule in State v. Conley, 873 S.W.2d 233 (Mo. banc 1994). Conley recognized that the fact that evidence of each crime would have been inadmissible propensity evidence if the crimes were tried separately is a “relevant factor in the determination of prejudice.” Id. at 238. However, the Supreme Court went on to note that:

[A]ny prejudice may be overcome where the evidence is sufficiently simple and distinct to mitigate the risk of joinder. United States v. Halper, 590 F.2d 422, 431 (2d Cir.1978). Such questions of severance are left to the sound discretion of the trial court.

Conley, 873 S.W.2d at 238-39.

In the present case, the facts relevant to each offense were not complex and the proof offered on each charge was distinct and uncomplicated. The evidence consisted simply of the testimony of the two victims and the officers who purchased the stolen vehicles.

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

Related

State v. Butchee
255 S.W.3d 548 (Missouri Court of Appeals, 2008)
State v. Johnson
231 S.W.3d 870 (Missouri Court of Appeals, 2007)
State v. Bechhold
65 S.W.3d 591 (Missouri Court of Appeals, 2002)
State v. Mitchell
999 S.W.2d 247 (Missouri Court of Appeals, 1999)
State v. McNaughton
924 S.W.2d 517 (Missouri Court of Appeals, 1996)
State v. Douglas
917 S.W.2d 628 (Missouri Court of Appeals, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
893 S.W.2d 890, 1995 Mo. App. LEXIS 417, 1995 WL 89859, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-strauss-moctapp-1995.