State v. Holland

• Decision Date: 19 December 1989
• Docket Number: No. 55082,55082
• Citation: 781 S.W.2d 808
• Parties: STATE of Missouri, Respondent, v. Earl J. HOLLAND, Appellant.
• Court: Missouri Court of Appeals

Page 808

781 S.W.2d 808

STATE of Missouri, Respondent, v. Earl J. HOLLAND, Appellant.

No. 55082.

Missouri Court of Appeals,

Eastern District,

Southern Division.

Dec. 19, 1989.

John Dennis Rayfield, Crystal City, for appellant.

William L. Webster, Atty. Gen., Douglas M. Ommen, Asst. Atty. Gen., Jefferson City, for respondent.

CARL R. GAERTNER, Presiding Judge.

Defendant appeals his jury conviction of three counts of felony stealing in violation of Section 570.030, RSMo.1986, on which he was sentenced to consecutive seven year terms of imprisonment and fines of Five Thousand Dollars on each count. We affirm.

The evidence adduced at trial revealed that defendant was a real estate broker, doing business as Holland House Realty and Investment Company, Inc. (Holland House). In the course of his business he either bought property through the corporation to resell or he offered a listing service and received commissions from those sales. Much of the real estate defendant purchased for resale was located at Rocky Ridge Ranch in Ste. Genevieve County, Missouri.

Count One involved the following transaction. In June, 1985, James Beckerman wanted to sell his house at Rocky Ridge Ranch and listed the house with defendant. Defendant then located a buyer, Pauline Higgins. Higgins signed a contract to buy the house on September 15, 1985, and gave defendant a Five Hundred Dollar ($500.00) deposit at that time. The closing was set for October 5, 1985, and at that time Higgins gave defendant two checks with which to complete the sale. One check was for approximately Twenty-nine Thousand Five Hundred Dollars ($29,500) and the other for approximately Five Thousand ($5,000) Dollars. Defendant placed the Five Thousand Dollar ($5,000) check in the Holland House escrow account, and deposited the other check into Holland House's regular corporate account. Within two weeks both accounts were nearly dissipated, but none of the money was expended in connection with the Beckerman-Higgins sale. At no time did Higgins authorize defendant to use the money except in connection with the purchase of Beckerman's house.

The facts leading to the second count began on July 8, 1985, when James and Carmaline Hammond signed a contract to buy a cabin at Rocky Ridge Ranch. In exchange for the cabin, the Hammonds gave defendant a cabin and lot worth Nine Thousand Dollars ($9,000), a lot at Rocky Ridge worth Three Thousand Dollars ($3,000), and a boat worth Two Thousand Five Hundred Dollars ($2,500). Defendant represented the title to the new cabin was free and clear. The truth was defendant had encumbered the property with a deed of trust to secure a loan made to him for Four Thousand Six Hundred Thirty-six Dollars and Sixty-four Cents ($4,636.64) just five weeks prior to the Hammond sale. In May, 1986, the Hammonds were contacted by the bank that held the deed of trust. In order to retain ownership of their cabin, the Hammonds paid the bank approximately Five Thousand One Hundred Dollars ($5,100), the balance of the loan plus interest.

The facts surrounding the third count involved a transaction with James and Eleanor Cummings. The Cummings signed a contract to purchase a home from defendant at Rocky Ridge Ranch. In exchange for the home defendant received from the Cummings a Fifteen Thousand Dollar ($15,000) cabin, Twenty-one Thousand Dollars ($21,000) cash, and a promissory note for Four Thousand Dollars ($4,000). Defendant represented the house to be free and clear of encumbrances. The Cummings paid the note off in May, 1984, and received from defendant a general warranty deed for the house. The property, however, was encumbered by two deeds of trust securing two loans made to Holland House. One loan was made on January 12, 1981, for Twenty-seven Thousand Dollars ($27,000), and the other was made on June 17, 1983, for Twenty-two Thousand Dollars ($22,000). Those loans were foreclosed on in October of 1987, and the Cummings lost their home.

Defendant raises five points on appeal, the first three of which relate to the introduction of certain evidence.

In his first point, defendant argues that the introduction at trial of a copy of a rights waiver form used by Deputy Claussen of the Ste. Genevieve County Sheriff's Department in questioning defendant was improper because no foundation was laid and it violated the best evidence rule. We disagree for two reasons. First, the best evidence rule applies where the contents of a writing are in issue and the secondary evidence is offered to establish the terms of the writing. Lewis v. Bucyrus-Erie, Inc., 622 S.W.2d 920, 924 (Mo. banc 1981); State v. Curry, 473 S.W.2d 747, 748 (Mo.1971). Here, there was no dispute regarding the contents of the rights waiver form. Moreover, Deputy Claussen testified without objection to his administration of the Miranda Warnings to defendant and to the latter's response to each of the questions on the form. The best evidence rule does not apply where the facts contained in the documentary evidence are independently proven. Guthrie v. Missouri Methodist Hosp., 706 S.W.2d 938, 943 (Mo.App.1986); State v. Prince, 628 S.W.2d 920, 921 (Mo.App.1982).

For the same reasons we find no merit in defendant's complaint of trial court error in the admission of copies of two checks written by Pauline Higgins to complete the purchase of the Beckerman property. Additionally, defendant testified at length concerning these checks and admitted depositing them in his corporate bank accounts and using the proceeds to pay corporate expenses. Reversible error cannot be predicated upon the admission of evidence which the defendant later confirms by his own testimony. State v. Smith, 679 S.W.2d 424, 427 (Mo.App.1984).

Defendant also alleges error in the admission of evidence of the transcript of his taped statement to Deputy Claussen because of lack of foundation and violation of the best evidence rule. On appeal defendant argues that the evidence regarding the tape recording from which the transcript was taken failed to meet all of the requirements set forth in State v. Spica, 389 S.W.2d 35, 44 (Mo.1965) for the admission of such evidence. At trial, defendant's objection consisted of the bare generalization "there has been no proper foundation." In State v. Cannady, 660 S.W.2d 33, 35 (Mo.App.1983) we held an objection, "lack of foundation, subject to my cross," inadquate to preserve the matter for review as it was "not sufficiently specific to alert the trial court to the grounds of excluding the evidence." In State v. Jones, 569 S.W.2d 15, 16 (Mo.App.1978) we noted "[i]t is particularly important that where an inadquate foundation had been laid for admission of evidence that the objection made be specific as such foundation deficiencies can frequently be remedied."

At trial no objection concerning a best evidence rule violation regarding the transcript was made at all. Moreover, having at defendant's request deleted prejudicial portions of the tape recording, the trial court was well within the parameters of its discretion to consider the tape to be "unavailable" evidence, and in allowing as secondary evidence the transcript with the prejudical content deleted as a precautionary measure to protect the defendant. See State v. King, 557 S.W.2d 51, 54 (Mo.App.1977). Furthermore, because there was no substantial difference between the content of the transcript and defendant's subsequent testimony, he fails to demonstrate any prejudice warranting reversal. State v. Schwendt, 645 S.W.2d 385, 387 (Mo.App.1983).

Defendant next contends the trial court erred in overruling his motion to dismiss Count III of the information, the Cummings transaction, as barred by the three-year statute of limitations, § 556.036.2(1) RSMo.1986. The information, filed June 2, 1987, alleged that defendant appropriated money continuously from the Cummings from April 20, 1981, through May 14, 1984, and that

the statute of limitations has not run on Count III pursuant to § 556.036 RSMo.1986 because a material element of the charged felony is fraud and the offenses were not known to the aggrieved persons until on or about October 10, 1986, nor to the Attorney General until November 4, 1986.

Section 556.036.3(1) provides for an extension of the period of limitations for an offense in which fraud or a breach of fiduciary obligation is a material element for one year after the discovery of the offense by an aggrieved party or by the Attorney General, prosecuting attorney or circuit attorney having jurisdiction. The gist of the offense charged in Count III was defendant's fraudulent misrepresentation that the property sold to the Cummings was "free and clear". The evidence disclosed that the Cummings, the aggrieved parties, first learned the property was encumbered by two deeds of trust held by Boatman's Bank to secure loans made to Holland House in October 1986, when notified by the bank. This information was first given to the Attorney General on November 4, 1986. Thus, although the original information was filed 3 years, and 17 days after the conclusion of the conduct constituting the offense, the prosecution was commenced within one-year after the discovery of the fraud by the aggrieved parties and the Attorney General.

Defendant's fifth and final point on appeal alleges the trial court erred in admitting certain documents because they were obtained by an illegal search made pursuant to a warrant. Before trial defendant challenged the warrant in a motion to suppress and the trial court granted a hearing to determine probable cause and particularity. Defendant's motion was thereafter overruled.

Defendant asserts the search warrant was not based upon probable cause because the supporting affidavits contained hearsay and mere recitals of belief without facts. No warrant shall issue but upon probable cause. U.S. Const. amend. IV; Mo. Const. art. I, § 15. Probable cause is determined by looking to the totality of the...