State v. Hollingsworth
| Decision Date | 02 July 1991 |
| Docket Number | No. WD,WD |
| Parties | STATE of Missouri, Respondent, v. Billy HOLLINGSWORTH, Appellant. 42557. |
| Court | Missouri Court of Appeals |
Lawrence R. Magee, Kansas City, for appellant.
William L. Webster, Atty. Gen., Christine A. Alsop, Asst. Atty. Gen., Jefferson City, for respondent.
Before LOWENSTEIN, C.J., SHANGLER, TURNAGE, KENNEDY, BERREY, GAITAN, FENNER, ULRICH and BRECKENRIDGE, JJ., and NUGENT and WASSERSTROM, Senior Judges.
Appellant, Billy Hollingsworth, appeals his conviction, after trial by jury, of stealing in violation of § 570.030 RSMo 1986. 1 Hollingsworth was sentenced to one year imprisonment and fined $5,000.00.
The evidence presented at trial, viewed in the light most favorable to the conviction, showed that Hollingsworth and two other individuals, Marty Miller and Bobby Wilson, had worked together for several years in an effort to "swindle" elderly people. Marty Miller described their organization as a fraud ring which targeted senior citizens. The three men would approach elderly people in their home offering a free termite inspection. Once in a home, they would misrepresent to the home owner that some work needed to be done on the property to try to get as much money out of the victim as possible.
On January 23, 1988, Hollingsworth, Miller and Wilson went to the home of Mary E. Throckmorton in Marshall, Missouri, because they were aware that she was elderly and lived alone. Miller testified that their intention in approaching Mrs. Throckmorton was to fraudulently obtain money from her.
The evidence showed that on January 23, 1988, Mrs. Throckmorton was an 89 year old woman, living alone, who suffered from diabetes. She had difficulty seeing, hearing, writing and moving about. In addition, her ability to think clearly when under pressure was impaired.
Without invitation, Wilson entered Mrs. Throckmorton's home announcing that he was looking for termites. Wilson went to the basement and returned showing Mrs. Throckmorton ants and told her that the three men would make a free inspection of the house.
The three men inspected the attic and found space around some vents that allowed water to leak into the attic insulation. They advised Mrs. Throckmorton that the leaks needed to be sealed and the wet insulation replaced. She told them to do the work that "needs to be done."
The men purchased insulation from a local lumber company at a cost of $105.00. They installed the insulation and sealed the space around the vents with a sealer that cost $5.00. They were at Mrs. Throckmorton's house for approximately one and one half hours.
When the men completed the work, they went into the house. Wilson looked in Mrs. Throckmorton's checkbook to see how much she had in the account. Discovering that her balance was $83,000.00, he told her that she owed them "thirty-six eighty." Mrs. Throckmorton completed a check for $36.80. The men rejected her check and told Mrs. Throckmorton the bill was $3,680.00. She told them "there is the checkbook." Hollingsworth filled in the amount of $3,680.00 on a check that had been pre-signed by Mrs. Throckmorton. Unknown to Mrs. Throckmorton, Wilson also removed a blank pre-signed check from her checkbook.
Hollingsworth later cashed the check for $3,680.00. Each of the men received $1,000.00 of the proceeds. Wilson also took $200.00 for gas and materials and $400.00 was spent on tires for the truck the parties used.
A local building contractor with thirty years' experience testified for the state that the value of the work performed by Hollingsworth and his companions was $250.00.
In his first point on appeal, Hollingsworth argues that there was insufficient evidence to convict him of stealing in violation of § 570.030.
Section 570.030.1 provides as follows:
A person commits the crime of stealing if he appropriates property or services of another with the purpose to deprive him thereof, either without his consent or by means of deceit or coercion.
Deceit as used in § 570.030.1 is defined in § 570.010(6) as follows:
"Deceit" means purposely making a representation which is false and which the actor does not believe to be true and upon which the victim relies, as to a matter of fact, law, value, intention or other state of mind. The term "deceit" does not, however, include falsity as to matters having no pecuniary significance, or puffing by statements unlikely to deceive ordinary persons in the group addressed. Deception as to the actor's intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise; 2 In determining whether the evidence is sufficient to support the verdict, an appellate court must accept as true all evidence and inferences that tend to support the verdict and disregard all evidence and inferences to the contrary. State v. Brown, 660 S.W.2d 694, 698-99 (Mo. banc 1983).
The evidence in the case at bar shows that the defendant, acting together with Wilson and Miller, appropriated Mrs. Throckmorton's property, i.e., her money, by means of deceit.
The record clearly establishes that the three men intended to make false representations to Mrs. Throckmorton in an effort to "swindle" her out of her money when they first approached her. Mrs. Throckmorton was purposefully targeted because she was believed to be and as shown by the evidence, was more likely to be deceived than ordinary persons. Hollingsworth represented the value of his work knowing his representation to be false with the intention of deceiving Mrs. Throckmorton and appropriating her money. Hollingsworth expected Mrs. Throckmorton to rely upon his false representation of value because of her age and condition, as the evidence showed she did.
Mrs. Throckmorton's check for $36.80 was rejected and she acquiesced in Hollingsworth filling in a check which she had already signed for the amount of $3,680.00. It is clear that Mrs. Throckmorton relied upon what she was told, i.e., that the value of the work Hollingsworth and the others had performed was $3,680.00. She was told that her check for $36.80 was incorrect. She took no exception to payment of the amount of $3,680.00. She relinquished her checkbook and acquiesced in a pre- signed check being filled out in the amount of $3,680.00. If she had not relied upon the representation of value made to her, she would not have consented to payment in said amount.
This was not a matter of individuals attempting to maximize profit. The representations were of material pecuniary significance and were clearly not matters of puffing in an effort to make the best bargain under the circumstances. The evidence of this case was sufficient to establish Hollingsworth's guilt of stealing by deceit.
Hollingsworth's first point is denied.
In his second point, Hollingsworth argues that the trial court erred by allowing Marty Miller to testify that he, Hollingsworth and Wilson were involved in a "fraud."
Miller's testimony in this regard was as follows:
Q. All right. Let me ask this, did you work with Wilson and the defendant?
A. Yes I did.
Q. Why don't you tell us what kind of work you did.
A. Termite and landscaping. More or less it was just a fraud ring.
Q. Okay.
A. Scandal.
Q. Okay. Why don't you explain what you mean by that to the jury.
A. It's just going to senior citizens' houses, but you are really not; you are just trying to get in the house and trying to swindle as much money as you can.
At this point, appellant's attorney entered a general objection and stated to the court that he wanted to know if Miller had been given "immunity." The court advised counsel that he would have the right to cross examine the witness and overruled the objection.
On appeal, Hollingsworth reiterates the argument, presented for the first time in his motion for new trial, that Miller's testimony was improper opinion testimony without a basis in fact.
Appellate review of allegations of error not supported by objection at trial is limited to plain error review. State v. Daly, 798 S.W.2d 725, 729 (Mo.App.1990) (citation omitted). Relief under plain error requires that the defendant go beyond a mere showing of demonstrable prejudice to show manifest prejudice affecting his substantial rights. State v. Hornbuckle, 769 S.W.2d 89, 93 (Mo. banc 1989), cert. denied, 493 U.S. 860, 110 S.Ct. 171, 107 L.Ed.2d 128 (1989).
As a participant, Miller was competent to state the intent and purpose of the activities of the group. There was no error in the admission of Miller's testimony, plain or otherwise.
Hollingsworth's second point is without merit.
In his third point, Hollingsworth argues that the trial court erred by allowing testimony of other crimes.
In this regard Miller testified, without objection, that the three men were involved in a fraud ring that targeted elderly people. Miller stated that they had been operating their fraud scheme in Jackson County and the counties surrounding Jackson County. Later in Miller's testimony, he stated that the "scams" continued with other elderly people after the transaction with Mrs. Throckmorton. Hollingsworth then objected solely on the basis that the testimony was evidence of other crimes. The court sustained the objection and instructed the jury to disregard the answer. Hollingsworth asked for no further relief.
Evidence of other crimes is competent to prove the crime charged when such evidence tends to establish motive, intent, absence of mistake or accident, a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, or identity of the person charged with the commission of the crime. State v. Fraction, 782 S.W.2d 764, 768 (Mo.App.1989). Evidence of other crimes should be admitted under one of these exceptions...
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State v. McMellen, WD
...fraudulent intent, existing at the time he made the promise which he then did not perform. Those cases are: State v. Hollingsworth, 817 S.W.2d 479 (Mo.App.1991), State v. Bagley, 771 S.W.2d 93 (Mo.App.1989) and State v. Inscore, 592 S.W.2d 809 (Mo. banc 1980). Each case has evidence of defe......