24 S.W.3d 185 (Mo.App. W.D. 2000), WD57262, State v. Pennington

Docket Nº:WD57262
Citation:24 S.W.3d 185
Party Name:State of Missouri, Respondent, v. Charles Pennington, Appellant.
Case Date:May 02, 2000
Court:Court of Appeals of Missouri

Page 185

24 S.W.3d 185 (Mo.App. W.D. 2000)

State of Missouri, Respondent,


Charles Pennington, Appellant.


Court of Appeals of Missouri, Western District.

May 2, 2000

Page 186

Appeal From: Circuit Court of Clay County, Hon. Michael J. Maloney

Counsel for Appellant: David Pettyjohn

Counsel for Respondent: John M. Morris and Karen Butler

Opinion Summary: Charles Pennington, Jr., appeals his conviction of first-degree robbery and armed criminal action. Pennington contends the trial court erred in allowing a witness to the charged offense testify that he saw Pennington steal from the same store on two previous occasion.

Division holds: The trial court abused its discretion by admitting evidence of Pennington's prior uncharged crimes because: (1) the evidence failed to fall under one of the recognized exceptions and, thus, lacked a legitimate tendency to directly establish Pennington's guilt of the charged offense; (2) the probative value of the evidence does not outweigh its prejudicial effect; and (3) there was no strict necessity for the admission of the other crimes evidence.

Page 187

Ronald R. Holliger, Judge

Charles G. Pennington, Jr., appeals from his conviction following a jury trial for one count of the class A felony of first-degree robbery, section 569.0201, and one count of the unclassified felony of armed criminal action, section 571.015. The trial court sentenced Pennington as a prior and persistent offender to concurrent sentences of 20 years imprisonment. On appeal, Pennington asserts the trial court erred in admitting evidence of prior uncharged crimes.

The judgment of the trial court is reversed and remanded for a new trial.

Factual and Procedural History

This Court reviews the facts in the light most favorable to the verdict. State v. Morrow, 968 S.W.2d 100, 106 (Mo. banc 1998). On June 28, 1998, Pennington parked his car at a gas pump island of a Quik Trip store located in Clay County. Pennington used a box knife to slit open the plastic "sock" covering a display of soda stored on the gas pump island. As Pennington loaded the soda into his vehicle, John Boch, an assistant manager of the Quik Trip, pulled into the store's parking lot. Boch witnessed Pennington stealing the soda and pulled his car up to Pennington's car to record the license plate number. Pennington then got back into his car and ran into Boch's car. Pennington put his car in reverse, trying to back away from Boch, and ran into a column supporting the canopy above the gas pumps. Boch then pulled his car forward to prevent Pennington from fleeing the scene. Pennington exited his vehicle and approached the passenger door of Boch's car. Boch testified that Pennington had a box knife in his hand, threatening Boch that "if you don't back off, I'm going to hurt you." Pennington then tried to open Boch's passenger door. Boch put his car in reverse, backing away from Pennington. As Boch reversed, he accidentally ran over Pennington's leg. Pennington hopped over to his car on one leg and drove away with eight to ten cases of soda in his car. Boch notified the police the following day and provided them with a description of Pennington and his license plate number. Boch also identified Pennington from a photo lineup and later identified him in court.

The jury found Pennington guilty of first-degree robbery and armed criminal action. The trial court sentenced Pennington to concurrent terms of 20 years for each offense. Pennington timely appealed.

The Trial Court Abused its Discretion By Admitting Evidence of

Defendant's Uncharged Crimes

Pennington contends that the trial court erred by admitting evidence of Pennington's prior uncharged crimes. Specifically, Pennington claims the trial court erred by admitting evidence that Boch witnessed Pennington stealing beverages at the Quik Trip on two previous occasions. In sustaining a motion in limine prior to trial, the trial court ruled that evidence of Pennington's prior acts of stealing at the Quik Trip would not be admitted. During the trial, the judge decided to allow Boch to testify that he had witnessed Pennington stealing beverages from the store on two previous occasions in order to show "why certain things were done at the time" and "why cars were used the way they were." The court granted Pennington's trial counsel a continuing objection to such testimony. In response to a question by the prosecutor about his familiarity with Pennington, Boch testified that he had seen Pennington stealing beverages twice before at the Quik Trip. Boch also testified that he reported those previous incidents to the police, but the police failed to do anything about his reports. Pennington argues that the trial court improperly admitted the evidence of...

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