State v. Criswell, s. WD

• Decision Date: 03 October 1995
• Docket Number: Nos. WD,s. WD
• Citation: 907 S.W.2d 303
• Parties: STATE of Missouri, Respondent, v. Anthony J. CRISWELL, Appellant. Anthony J. CRISWELL, Appellant, v. STATE of Missouri, Respondent. 48186, WD 50182.
• Court: Missouri Court of Appeals

Page 303

907 S.W.2d 303

STATE of Missouri, Respondent, v. Anthony J. CRISWELL, Appellant.

Anthony J. CRISWELL, Appellant, v. STATE of Missouri, Respondent.

Nos. WD 48186, WD 50182.

Missouri Court of Appeals Western District.

Oct. 3, 1995.

Stephen J. Harris, Office of the State Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

Before LAURA DENVIR STITH, P.J., and LOWENSTEIN and HANNA, JJ.

LOWENSTEIN, Judge.

Anthony Criswell appeals a conviction of burglary in the second degree under § 569.170, RSMo (1986). Criswell was sentenced as a prior, persistent, and class X offender under §§ 558.016, 558.019, and 557.036.4 RSMo (Supp.1990), for participation in three felonies committed at different times. Criswell also appeals the denial of his Rule 29.15 post-conviction motion. The appeals are consolidated.

The facts of the case are as follows:

At 2:04 a.m. April 17, 1992, police were dispatched to a Brandsmart Electronics store at East 40 Highway and Noland Road. Brandsmart's alarm company notified the police when motion sensors inside the store were triggered. The first Independence police officer at the store saw movement on the ground near the building. He called for assistance and then approached the building. The building's power box and electrical meter had been destroyed. Electrical and telephone wires leading to the building had been cut. The wire to the triggered alarm escaped being severed by one-eighth of an inch.

A hole, apparently made with a sledgehammer, had been knocked in a side wall of the second story; someone had entered the building through the hole. Two sets of shoeprints were visible on top of the debris scattered around the hole, obviously having been made after the entry hole was created. More shoeprints made by a pair of Nike tennis shoes were found inside the building on shelving and on a junction box near the hole. An inside door to a storage room had been forced open in a manner consistent with the use of a screwdriver.

Shortly after responding to the radio call, a police detective found a 1991 Chevrolet pickup in a church parking lot about 300 yards from the Brandsmart. Its steering column was broken, indicating the truck had been stolen. The owner testified that the truck had been stolen shortly before the burglary. A police detective who set up surveillance of the truck watched two males emerge from brush near the pickup. One was carrying a sledgehammer and wore a blue jacket and dark pants, and one was wearing a gray jacket and dark pants. The blue jacket was later seized from Criswell and identified by the detective as belonging to one of the people he had seen.

The suspects got inside the truck and began to drive off. As police attempted to block the exits from the parking lot, the truck took evasive action and led them on a chase. The chase ended on 45th and Spring, where the occupants crashed and fled on foot. Inside the truck was a screwdriver, a pair of pliers, a pair of wire cutters, and a sledgehammer, none of which belonged to the truck's owner.

Officers caught one of the suspects, James Latimer. Latimer was wearing gloves, jeans, and a gray jacket which belonged to the owner of the truck. A pair of pliers was found in Latimer's pocket. His Adidas tennis shoes were seized and later matched to one of the sets of footprints on top of Brandsmart.

Although the other suspect was pursued by officers, a canine unit, and a helicopter, he was not apprehended. For thirty minutes, the police searched the vicinity, except for a wooded area and railroad tracks east of the crash site which led toward Noland South Shopping Center and Celebrities Bar.

Earlier that evening, Greg Fetters had left his 1985 Oldsmobile at Celebrities Bar. When he returned to pick up his car at 9:00 a.m. the morning after the burglary, it was missing. At 8:42 that morning, a police officer observed a man later identified as Criswell standing next to Fetter's Oldsmobile at 40 Highway and Sterling. The trunk of the vehicle was open. Criswell, standing next to the car wearing a blue jacket, turned his head away in order to hide his face from the officer.

The officer left the area to respond to another call. When he returned, Criswell was gone. However, a short time later, Criswell sped past the officer at 40 Highway and Sterling. When the officer pursued Criswell, the Oldsmobile left the road and struck a mailbox, at which time Criswell fled on foot. He was observed by a pursuing officer to be wearing gloves.

Officers captured Criswell and seized his Nike shoes, which matched the other set of shoeprints on top of Brandsmart and were not inconsistent with the shoeprints inside the store. A flashlight was found in the Oldsmobile. Criswell pled guilty to the theft of the Oldsmobile prior to his burglary trial.

I.

Criswell complains that the trial court erred when it admitted evidence of the theft of the 1985 Oldsmobile Calais. Criswell asserts that the details of the theft were inadmissible evidence of a crime other than the charged crime.

At trial, and over objection, the state told the jury that the automobile had been stolen from Celebrities bar on the evening of the robbery and that Criswell used the car in an attempt to evade police the next morning. The state's theory was that after eluding the police search that resulted in James Latimer's capture, Criswell hid in the woods and then "stole the first car he could find" in order to escape.

To be admissible, evidence must be logically and legally relevant. Evidence is logically relevant if it tends to prove or disprove a fact in issue or corroborates relevant evidence bearing upon the principal issue. State v. Pepper, 855 S.W.2d 500, 502 (Mo.App.1993). Other crimes evidence has a legitimate tendency to prove the crime charged if it establishes motive, intent, absence of mistake or accident, common scheme or plan, or identity. State v. Chiles, 847 S.W.2d 807, 809 (Mo.App.1992).

The common scheme or plan exception allows evidence of other crimes when that evidence "tend[s] to establish ... a common scheme or plan embracing the commission of separate similar offenses so interrelated to each other that proof of one tends to establish the other ..." State v. King, 588 S.W.2d 147, 150 (Mo.App.1979).

An exception closely...