State v. Frankenberg

• Court: Missouri Court of Appeals
• Writing for the Court: PARRISH
• Citation: State v. Frankenberg, 876 S.W.2d 286 (Mo. App. 1994)
• Decision Date: 12 May 1994
• Docket Number: No. 18961,18961
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Mark A. FRANKENBERG, Defendant-Appellant.

Page 286

876 S.W.2d 286

STATE of Missouri, Plaintiff-Respondent, v. Mark A. FRANKENBERG, Defendant-Appellant.

No. 18961.

Missouri Court of Appeals,

Southern District,

Division One.

May 12, 1994.

Douglas L. Levine, Ferguson, for defendant-appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Traci J. Sanders, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

PARRISH, Chief Judge.

Mark A. Frankenberg (defendant) was found guilty, following a jury trial, of sodomy and sentenced to imprisonment for a term of 10 years. § 566.060.3, RSMo Supp.1990. Defendant appeals contending the trial court erred in giving MAI-CR 3d 310.12 as a jury instruction. This court reverses and remands the case for a new trial.

Defendant and his girlfriend (now his wife) were visiting her relatives in Salem, Missouri. They were staying with defendant's girlfriend's cousin. An eleven-year-old relative of defendant's girlfriend was also there. The girlfriend's relative, a girl, testified that defendant came to her bed during the night, asked if he could lay down with her, laid down beside her, removed her underwear and inserted his finger in her vagina.

Defendant testified in his own behalf. He denied the victim's allegations. Defendant was asked if he had previously been convicted of other criminal offenses. He testified that he had been convicted of selling drugs and of burglary and stealing. One of the instructions the trial court gave the jury, Instruction No. 7, was patterned after MAI-CR 3d 310.12. It stated:

If you find and believe from the evidence that the defendant pled guilty to offenses other than the one for which he is now on trial, you may consider that evidence on the issue of intent of the defendant and you may also consider such evidence for the purpose of deciding the believability of the defendant and the weight to be given to his testimony.

Defendant contends, and the state concedes, that Instruction No. 7 was erroneous; that the correct instruction, under the facts of the case, would have been one patterned after MAI-CR 3d 310.10. ¹

Notes on Use to MAI-CR 3d 310.12 state that its use "is governed by Notes on Use 3 under MAI-CR 3d 310.10" and the Notes on Use that appear following MAI-CR 3d 310.12. The part of note 3 under MAI-CR 3d 310.10 applicable to this appeal states:

The following rules will govern the use of MAI-CR 3d 310.10 and 310.12 as supplemented by the Notes on Use under MAI-CR 3d 310.12:

(a) Explanation of terms used in Notes on Use:

(i) Prior crimes committed by the defendant will be referred to as either "related" or "unrelated." "Related crimes" are those which may go to show intent, motive, etc. Such crimes may be shown by the state as substantive evidence of guilt of the crime on trial, whether the defendant testifies or not. See MAI-CR 3d 310.12. In addition, if defendant takes the stand as a witness, proof of conviction of, pleas of guilty to, pleas of nolo contendere to, and findings of guilt of "related crimes" may be considered as impeaching his credibility as a witness.

(ii) "Unrelated crimes" are those convictions, pleas of guilty, pleas of nolo contendere, and findings of guilt which may be considered solely for the purpose of impeaching the credibility of the defendant if he testified.

. . . . .

(b) If the defendant testifies and if there is evidence that defendant was "convicted, etc." of an "unrelated crime" and if there is no evidence that defendant was either "convicted, etc." or involved in a "related crime," then only MAI-CR 3d 310.10 should be given.

. . . . .

In State v. Shaw, 636 S.W.2d 667 (Mo. banc 1982), this state's supreme court declared:

A criminal defendant has the right to be tried only for the crime or crimes with which he is charged. State v. Wright, 582 S.W.2d 275, 277 (Mo. banc 1979); State v. Holbert, 416 S.W.2d 129, 132 (Mo.1967). The admission of evidence of offenses unrelated to the cause on trial breaches that right because it may result in a conviction founded upon crimes of which the defendant is not accused. Thus, the long-established general rule is that proof of the commission of separate and distinct crimes is inadmissible unless it has some legitimate tendency to establish that the defendant is guilty of the crime with which he is charged. State v. Lasley, 583 S.W.2d 511, 517 (Mo. banc 1979); State v. Carter, 475 S.W.2d 85, 88-89 (Mo.1972); State v. Shilkett, 356 Mo. 1081, 1086, 204 S.W.2d 920, 922-23 (1947); State v. Harrold, 38 Mo. 496, 497-98 (1866). Specifically, such evidence is admissible to prove the crime charged when it tends to establish motive, intent, the absence of mistake or accident, a common scheme or plan embracing the commission of two or more crimes so related that proof of one tends to establish the other, or the identity of the person charged with the commission of the crime on trial. State v. Reese, 364 Mo. 1221, 1226, 274 S.W.2d 304, 307 (banc 1954).

Id. at 671-72.

The crimes to which defendant previously pleaded guilty--selling drugs, burglary and stealing--were unrelated to the offense of sodomy for which he was being tried. As such, evidence of defendant's prior convictions were admissible and could be considered by the jury for the sole purpose of deciding the believability of his testimony. State v. Radford, 646 S.W.2d 364, 366 (Mo.App.1982); see also § 491.050, RSMo 1986.

The trial court erred in giving an instruction patterned after MAI-CR 3d 310.12 as Instruction No. 7. The pattern instruction that should have been followed was MAI-CR 3d 310.10, supra, n. 1. State v. Olds, 831 S.W.2d 713, 721 (Mo.App.1992). See also State v. Radford, supra, at 365; State v. Parker, 617 S.W.2d 83, 85 (Mo.App.1981). ²

Notwithstanding its acknowledgment that the giving of MAI-CR 3d 310.12 as Instruction No. 7 was erroneous, the state contends that defendant did not preserve the issue for appellate review because defendant failed to set out the instruction "in full in the argument portion of the brief." Rule 30.06(e).

Rule 30.06(e) includes the requirement:

If a point relates to the giving, refusal, or modification of an instruction such instruction shall be set forth in full in the argument portion of the brief.

The state's position is well-taken. By not setting out Instruction No. 7 in the argument portion of his brief, defendant failed to preserve the question of instructional error. State v. Williams, 674 S.W.2d 46, 48 (Mo.App.1984). Nevertheless, this court may grant plain error review. State v. Harnar, 833 S.W.2d 25, 27 (Mo.App.1992), citing State v. Childers, 801 S.W.2d 442, 444 (Mo.App.1990).

Although defendant did not set out Instruction No. 7 in the argument portion of his brief, it was included in his statement of facts and in the legal file that is part of the record on appeal. This does not excuse compliance with Rule 30.06(e); however, it promotes plain error review in that the instruction is readily before the court.

This court has discretion to consider plain errors affecting substantial rights upon finding that manifest injustice or miscarriage of justice has occurred by reason of trial court error. Harner, 833 S.W.2d at 27. There is no exact formula for determining whether plain error has occurred. "Consequently, it has been judicially recognized that the existence or non-existence of 'plain error' must be coped with on a case to case basis and rebalanced each time against the particular facts and circumstances of each case." State v. Miller, 604 S.W.2d 702, 706 (Mo.App.1980).

The state, in urging this court to hold that the error was not prejudicial let alone violative of the "plain error rule," contends there was no manifest injustice or miscarriage of justice, but merely harmless error because Instruction No. 7 told the jury it could consider defendant's commissions of prior offenses "on the issue of intent" as well as "for the purpose of deciding the believability of the defendant and the weight to be given to his testimony." It summarizes its argument:

The jury was not required to find appellant had an intent to commit the crime in order to find him guilty beyond a reasonable doubt. In fact, no evidence of criminal intent is required in a conviction for statutory...