State v. Mantia, 53129

• Decision Date: 23 February 1988
• Docket Number: No. 53129,53129
• Citation: 748 S.W.2d 785
• Parties: STATE of Missouri, Respondent, v. Perry MANTIA, Appellant.
• Court: Missouri Court of Appeals

Page 785

748 S.W.2d 785

STATE of Missouri, Respondent, v. Perry MANTIA, Appellant.

No. 53129.

Missouri Court of Appeals,

Eastern District,

Division Four.

Feb. 23, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

March 30, 1988.

Application to Transfer Denied May 17, 1988.

Mary C. McWilliams, Asst. Public Defender, St. Louis, for appellant.

William L. Webster, Atty. Gen., Elizabeth Levin Zeigler, Asst. Atty. Gen., Jefferson City, for respondent.

GRIMM, Judge.

In this jury tried case, Perry Mantia appeals from his conviction of kidnapping, in violation of § 565.110, RSMo.1986; of rape, in violation of § 566.030, RSMo.1986; of sodomy, in violation of § 566.060, RSMo.1986; of robbery in the first degree, in violation of § 569.020, RSMo.1986; and of armed criminal action, in violation of § 571.015, RSMo.1986. Defendant was sentenced, as a prior and persistent offender, to consecutive prison terms of thirty years each on the rape, sodomy, and kidnapping convictions, and to concurrent sentences of thirty years each on the robbery and armed criminal action convictions.

The appeal sets forth one point relied on, which we have rephrased to raise the following two issues: First, that the trial court erred in admitting into evidence a gun not connected with the offense on trial, because it was irrelevant and constituted proof of other crimes. Such admission was error, however it was harmless due to the overwhelming evidence of defendant's guilt. State v. Vernor, 522 S.W.2d 312, 316 (Mo.App.E.D.1975). Second, that the trial court erred in admitting testimony of an Ohio victim and an Ohio police officer concerning events involving the defendant which occurred at a motel in Ohio. We find no error because the trial court sufficiently restricted the testimony to relevant facts, and details of the Ohio crimes were not revealed. We affirm.

The evidence indicates that at approximately 1:30 a.m. on October 18, 1985, the victim left some friends who were partying at Laclede's Landing and walked to her car. She got into her car and locked the doors. The defendant knocked on her car window and told her she had a flat tire; she ignored him, and proceeded to start the car. However, the defendant persisted in saying she had a flat tire, so she turned off the car and got out to check the tire. She found that the tire was inflated. Meanwhile, the defendant was leaning against the car next to the victim's car and appeared to be getting into it. As she got back into her car, the defendant reappeared and pulled a gun on her. He ordered her to move over, got into the driver's seat, and they rode around until 3 or 4 o'clock that morning. He then stopped at a motel in Pacific, Missouri. Before going in, the defendant told her that if, while registering, she made any type of move, he would kill her and the desk clerk. They then went into the office and she registered, using her credit card.

In the motel room, the defendant ordered her to undress herself and then him. Over the course of several hours the defendant repeatedly raped and sodomized the victim. She observed that defendant had two tattoos, one was a cross, while the other was the name "Perry". In addition, she saw that he had stretch marks on his abdomen and a scar on the bottom portion of his penis.

At approximately 9:00 a.m., while the defendant was going to the bathroom, she managed to escape, leaving behind her car keys and her purse (containing her driver's license and credit cards). Shortly thereafter, defendant left the motel in the victim's car.

The next day, October 19, the victim viewed a photographic lineup consisting of twelve photos. She identified the defendant.

On October 23, the defendant was arrested at a motel in Springfield, Ohio, after holding another woman captive in her motel room for six and one-half hours. At trial, the Ohio victim identified the gun the defendant had used when he gained entrance to her room; the gun was the same one used on the St. Louis victim. In addition, she described the same identifying marks on the defendant that the St. Louis victim had testified to (e.g., the tattoos of Perry and a cross, the stretch marks, and the scar) and identified the defendant as her assailant. She also testified to a telephone conversation she overheard between the defendant and his mother concerning the incident in St. Louis. According to her, the defendant stated, "Hell yeah, I did it."

Following the defendant's arrest by the police in Ohio, they made a search of the Ohio victim's motel room. There they found the gun the defendant had used. They also found, on top of a television, the St. Louis victim's driver's license and seven of her credit cards, as well as the defendant's driver's license.

The police in Ohio also made an inventory search of the St. Louis victim's car, which was found at the motel. There they found a second gun hidden under some articles of clothing. In addition they found, among other things, the St. Louis victim's purse and checkbook; a St. Louis Post-Dispatch newspaper dated October 19, 1985, which contained an article about the abduction and rape of the St. Louis victim; and a credit card slip showing a purchase of gas on October 18 on one of the St. Louis victim's credit cards. This slip contained a signature of "Perry Mantia", as well as the victim's Missouri license plate number.

The first issue the defendant raises is that the trial court erred in admitting into evidence a gun, not connected with the offense on trial, found in the St. Louis victim's car following defendant's arrest. Both, at trial and on appeal, defendant stated that the admittance of this gun was error because it was evidence of other crimes and not relevant. We find that it was error to admit the gun into evidence, but that the error was harmless.

The defendant relies on State v. Williams, 543 S.W.2d 563 (Mo.App.W.D.1976), where Williams, a passenger in the back seat of a car, was arrested after a police officer stopped the car and observed the butt of a gun sticking out from under his leg. After his arrest, another weapon was found under the passenger side of the front seat; the passenger seated there was also arrested for carrying a concealed weapon. The state entered the second weapon into evidence, kept it in front of the jury throughout the trial, and discussed it in its closing argument. The jury found Williams guilty of carrying a concealed weapon and assessed his punishment at five years' imprisonment.

In Williams, the court aptly stated the question, "What is involved then is basically the question of the relevancy of the evidence that [another passenger] also possessed a concealed weapon." [emphasis added]. Id. at 564. For evidence to be relevant, it "must logically tend to support or establish a fact or issue between the parties." State v. Moore, 435 S.W.2d 8, 11 (Mo.banc 1968). The Williams court reversed the conviction because of the absence of any logical connection with the offense charged and the inherently prejudicial nature of the demonstrative evidence of the second weapon. Id. at 566. Thus, the Williams court in effect said the evidence of the second gun was not relevant.

Likewise, in this case, the question raised is what is the relevancy of the gun found under some clothes in the St. Louis victim's car, when that gun was not related to either the events in St. Louis or Ohio. How does the admission of that gun into evidence "logically tend to support or establish a fact or issue" concerning the five offenses for which the defendant was on trial? At trial and on appeal, the state's justification was "it was recovered in the inventory" of the St. Louis victim's car. Contrary to the state's position, the fact that an item is listed on an inventory does not make that item automatically admissible; its relevancy must still be shown. Such relevancy does not here appear.

Although the admission of the gun was error, we are unable to find that the defendant sustained prejudice as a result of its admission. Error, which in a close case might call for reversal, may be disregarded as harmless when the evidence of guilt is strong. State v. Vernor, 522 S.W.2d 312, 316 (Mo.App.E.D.1975). Here, the evidence of defendant's guilt was overwhelming, considering (1) the identification of the defendant by the St. Louis victim, especially her description of the tattoos on defendant; (2) the St. Louis victim's car being found at the same motel in Ohio where the defendant was arrested; (3) the St. Louis victim's driver's license being found in the Ohio motel room occupied by defendant; and (4) the Ohio victim's testimony that she heard defendant tell his mother, "Hell yeah, I did it". In addition, here, unlike in Williams, punishment was assessed by the court, and not the jury. Thus, because of the strong evidence of guilt and the fact that the jury did not assess the punishment, we find no reversible error. Point denied.

The second issue raised by the defendant is that the trial court erred in admitting testimony of an Ohio victim and an Ohio police officer concerning events involving the defendant which occurred at a motel in Ohio. Defendant claims that this testimony is evidence of other crimes and irrelevant. We find no error because the trial court sufficiently restricted the testimony to relevant facts, and details of the Ohio crimes were...