State v. Goins

• Court: Missouri Court of Appeals
• Writing for the Court: DANIEL E. SCOTT, , dissenting
• Citation: State v. Goins, 306 SW 3d 639 (Mo. App. 2010)
• Decision Date: 20 April 2010
• Docket Number: No. SD 29130.,SD 29130.
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Frankie J. GOINS, Defendant-Appellant.

306 S.W.3d 639

STATE of Missouri, Plaintiff-Respondent, v. Frankie J. GOINS, Defendant-Appellant.

No. SD 29130.

Missouri Court of Appeals, Southern District, Division Two.

February 10, 2010.

Rehearing Denied March 3, 2010.

Application for Transfer Denied April 20, 2010.

John M. Albright, Poplar Bluff, MO, for Appellant.

Chris Koster, Attorney General, and Jamie Pamela Rasmussen, Assistant Attorney General, Jefferson City, MO, for Respondent.

DON E. BURRELL, Judge.

Appellant Frankie J. Goins ("Defendant") was charged with the class C felony of stealing by deceit pursuant to section 570.030.¹ The case was tried to a jury. At the close of the evidence, the jury was instructed on both the charged offense and a lesser charge of statutory "substantial step" attempt to commit stealing by deceit pursuant to section 564.011, RSMo 2000. After deliberation, the jury entered a verdict finding Defendant guilty of the lesser offense (punishable as a class D felony) and assessing a punishment of "no imprisonment, but a fine, in an amount to be determined by the court." After denying Defendant's post-trial motion for judgment of acquittal and alternative motion for a new trial, the trial court entered a judgment imposing a $3,500 fine.

Defendant now appeals that judgment in a single point relied on that asserts the trial court erred when it overruled Defendant's objections to cross-examination questions the prosecutor asked Defendant's character witnesses.² Because Defendant's claim of error was not properly preserved for our review, we affirm.

Facts

We view the evidence in the light most favorable to the verdict. State v. Collier, 892 S.W.2d 686, 688 (Mo.App. W.D.1994). Viewed in that light, the evidence was that while working as an officer for the Malden Police Department, Defendant took $1,000 from a teenager ("Victim") who had been caught up in a scam involving the selling of stolen trading cards related to an online computer game. Victim had contacted the police to report the trading card scheme. A few days later, Defendant called Victim and asked him to bring to the police station the money he had received as a result of his participation in the trading card scam. Defendant told Victim the police needed the money in connection with their investigation. After Victim told his stepfather what Defendant had asked him to do, Victim's stepfather notified the Chief of Police, Jarrett Bullock ("Chief Bullock"), that Defendant's request sounded "fishy" to him. Chief Bullock passed stepfather's concerns along to the Highway Patrol, which arranged for Victim to take $1,000 in cash to Defendant in order to see what Defendant would then do with the money.

The exchange of the money was videotaped by means of a recording device placed on Victim prior to his meeting with Defendant. That videotape was later played for the jury. Upon receiving the money, Defendant did not give Victim a receipt, did not count the money, and did not open a case file. Defendant also put the money in his own personal locker instead of placing it in the police station's evidence locker. At the end of Defendant's shift, William "Bud" Cooper, a supervising sergeant over the Criminal Unit of the Highway Patrol's Troop E, was waiting for Defendant as he left the police station and confronted Defendant about his actions.

At trial, Defendant testified in his own defense after first presenting the testimony of two law enforcement officers who testified that Defendant had a good reputation in the community for "truthfulness and honesty." The relevant portions of the character witnesses' testimony occurred as follows:

Defendant's direct examination of first witness

Q. You've known Defendant for about six years?

A. Yes, sir.

Q. And had some common interests with him?

A. Yes, sir.

Q. Are you aware of his reputation for truthfulness and honesty in the Southeast Missouri area?

A. Yes, sir, I am.

Q. And what is your understanding for sic his — of his reputation for truthfulness and honesty? Tell the jury.

A. It's always been excellent.

On cross-examination, the prosecutor asked the witness the following questions and received the following answers:

Q. And are you aware that Defendant was a police officer in the City of Morehouse?

A. Yes, sir.

Q. And were you aware while he was a police officer at the City of Morehouse he was accused of stealing bond money.

A. No, sir.

Defendant's counsel: Objection, Your Honor. That's improper cross-examination.

THE COURT: Overruled. He may answer.

Q. You weren't aware of that?

A. No, sir, I was not.

Q. That he then made restitution for that bond money that went missing while it was —

Defendant's counsel: Would you —

Q. — in his custody?

Defendant's counsel: — show this objection to be a continuing objection for the record?

THE COURT: It may.

Defendant's counsel: Plus he's assuming facts not in evidence. There's no evidence of this whatsoever.

THE COURT: The objection will be continuing.

Q. I said —

A. No, sir.

Q. — that he made restitution for this bond money that went missing while in his custody?

A. No, sir, I wasn't aware of that.

Q. Would that change your opinion at all about him and his reputation had you known that?

A. I'd have to — I'd have to know a lot more about the source of the credibility of the information. It could change it but I don't know what that's based on.

Q. Were you aware he was also employed in the City of Bloomfield as an officer.

A. Yes. Yes, sir.

Q. And while he was here in the City of Bloomfield as an officer that he refused to pursue a theft report after recovering the property and returning it to the owner despite the fact the owner —

Defendant's counsel: Judge, same objection. There's no evidence of this and it's improper cross-examination of this officer.³

THE COURT: Based on the Court's understanding of the law, the objection is overruled. Proceed.

Prosecutor: Thank you, Your Honor. If Defendant's counsel wants to make that continuing as well, I don't have any objection.

Defendant's counsel: Yes, I would ask that.

THE COURT: It will be continuing.

Q. And that this stolen four-wheeler was returned to the owner and he refused to pursue the matter because the person who had stolen it was a friend of his?

A. I wasn't aware of that, no, sir.

Q. And again, had you known that, would that change your opinion of his reputation?

A. Once again, I mean, if that was proven to be a true fact, it would but I don't know what it's based upon.

Q. That another officer pursued that and, in fact, the person that took the four-wheeler that he refused to pursue was charged and convicted with that offense?

A. Okay. No. I wasn't aware of that, though, sir.

Q. You think those are significant, those incidents, would be significant insofar as somebody's reputation for being an honest and law-abiding person?

A. Yes, sir. I mean, if they were true. I don't know that that would help them any.

The second witness testified on direct examination as follows:

Q. Do you know Defendant that's sic seated over there?

A. Yep.

Q. How long have you known Defendant?

A. Me and Defendant has sic — we went to school together from grade school until senior high, knowed sic each other about — practically all of our lives.

Q. Kept up with each other over the years?

A. We have seen one another on acquaintances sic after school, yes.

Q. Are you familiar with his reputation in Southeast Missouri for truthfulness and honesty?

A. Yes.

Q. Would you tell the jury what his reputation is for being a truthful and honest person?

. . . .

A. Excellent.

In response to this testimony, the prosecutor conducted the following cross-examination:

Q. Now, sir, are you aware that in November of 2003 that Defendant wrote a traffic ticket and took a cash bond in the City of Morehouse when he was working there?

Defendant's counsel: Your Honor, I'm going to object that this question is improper cross-examination for a character witness. There's sic no facts in evidence. It's totally improper. And that's my objection. (emphasis added).

THE COURT: All right. Overruled. He may answer.

Q. And then failed to turn in that bond money, that the bond receipt was signed in the name of a fictitious person by the name of Joe Griffin who had never worked and was never heard of by anybody in the City of Morehouse and that when the matter was brought up and Defendant was confronted about it he paid the $70 back; are you aware of that?

A. No, sir.

Q. Okay. Had you known that, would that change your opinion of him?

A. It would have to be proved for me — for me to understand it.

Q. And are you aware further that a Ron Alsup had his — on April 24th, 2003 when Defendant was an officer with the police department in the City of Bloomfield that he received a report with respect to the theft of a four-wheeler and trailer, that he located the trailer and contacted the victim and returned it to him and when the victim, Mr. Alsup, indicated he wanted to pursue further the matter and prosecute it that Defendant refused to do so and that subsequently, a Justin Bell, who was a volunteer fireman who was a friend of Defendant, was charged with that theft and the trailer, in fact, was subsequently recovered by the — Deputy Patrick Barbour and Deputy Keith Haynes recovered that from Defendant's friend?

Defendant's counsel: Same objection, Your Honor.

THE COURT: Overruled.

Q. Are you aware of that incident?

A. Sir, I don't keep up with people's records. This here sic is foreign to me, what you're talking about.

Q. I understand that, sir. And I guess my question is: Had you known that, would your thoughts about his reputation be different?

A. As I said a while ago, I've known Defendant for — I think most of us is sic probably 36. He may be a little older than I am. All I've knowed sic of Defendant has been a good person sic.

Q. And my question to you, sir, again, let me just try and make sure you understand: Had you known that information, would your opinion about his reputation; that is, what

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