State v. McGinness, WD
| Decision Date | 02 January 1990 |
| Docket Number | No. WD,WD |
| Citation | 784 S.W.2d 806 |
| Parties | STATE of Missouri, Respondent, v. Robert W. McGINNESS, Appellant. 41612. |
| Court | Missouri Court of Appeals |
David H. Miller, Public Defender, Richmond, for appellant.
William L. Webster, Atty. Gen., Andrea K. Spillars, Asst. Atty. Gen., Jefferson City, for respondent.
Before MANFORD, P.J., and SHANGLER and CLARK, JJ.
Robert W. McGinness was convicted of the offense of passing an insufficient funds check in violation of § 570.120, RSMo 1986. He appeals contending in a single point of error that the court permitted irrelevant and immaterial evidence to be introduced concerning appellant's insurance business and that the verdict was thereby influenced to appellant's prejudice. We agree and reverse the judgment.
The evidence in the case which bore on the charge was essentially undisputed. The information charged appellant with issuing, with purpose to defraud, a check drawn on appellant's account with the Community Bank of Chillicothe in the amount of $317.00, knowing it would not be paid. The check in question, which appellant wrote payable to himself, was presented by him for deposit to an account he maintained at the First National Bank of Carrollton. The check was returned marked insufficient funds. It is undisputed that appellant's account at the Chillicothe bank did not have a balance sufficient to cover that check. The disputed issue was whether admissible evidence proved intent to defraud.
When the Carrollton bank received notice that appellant's check had been returned, appellant was informed of the necessity to remedy the overdraft. Two days later, on February 29, 1988, appellant presented for deposit to his Carrollton bank account a check for $1516.00 written by Egard Ahmann and given to appellant in payment of premiums for policies of insurance appellant had sold to Ahmann. The check was made payable to Rural Insurance Service, the name under which appellant conducted his business as an insurance broker.
Initially, the bank accepted the deposit and credited appellant's account, but on instruction of the head teller, the entry was reversed because the account records at the bank did not include the name, Rural Insurance Service. Appellant protested the failure to credit his account with the deposit. A conference ensued and the transaction was reinstated after appellant and the bank agreed to add appellant's business name to the account. Despite this, however, the bank's officers apparently remained doubtful about the deposit. Delbert Snider, senior operations officer for the Carrollton bank, telephoned the Lafayette County Bank on which Ahmann had drawn the check given to appellant. Snider told the Lafayette bank officer that he was concerned about whether Ahmann had sufficient funds to cover the check. He explained that First National had experienced problems with returned checks on McGinness's account. Snider was assured that Ahmann had ample funds to cover the check.
After his conversation with Snider, the Lafayette bank officer contacted Ahmann and told him he had been questioned about the check appellant was presenting for payment. At this point, and because of the inquiry, Ahmann decided he had made a mistake in buying insurance from appellant and he ordered payment stopped on his check. In consequence, the deposit to appellant's account was again reversed re-establishing the deficit from the original insufficient funds check of $317.00. Based on this evidence and other testimony discussed below, the cause was submitted to a jury 1 which found appellant guilty of the charge and assessed punishment at one year imprisonment and a fine to be determined by the court. Sentence was later imposed in accordance with the verdict and the fine was set at $1000.00.
Appellant's point of error complains of evidence which the court permitted to be introduced in the course of the state's cross-examination of appellant. The contention is sub-divided into seven subjects of testimony which appellant claims should have been excluded from the jury's consideration. The state correctly observes that only two have been preserved for appellate review, the remainder having been forfeited because no objection was made at trial and, in the case of two of the five, because omitted from the new trial motion. Initially, discussion will be limited to the error preserved.
In his first argument sub-point, appellant says the trial court erred when it overruled his objection and permitted the prosecutor to question him about his failure to register the name, Rural Insurance Service, with the secretary of state and to suggest that unlawful use of a fictitious business name was an indication of appellant's guilt on the insufficient funds check charge.
The cross-examination of appellant pursued the subject of Rural Insurance Service name in connection with the evidence the state had presented about the check from Egard Ahmann and appellant's explanation that he used the name in his insurance business. Over objection, the prosecutor was permitted to secure an admission that the name had not been registered as required by statute, followed by the prosecutor's question: "Isn't it also illegal to operate under a fictitious name." (Emphasis supplied). Appellant contends the subject of registration of the name was irrelevant to the offense of issuing an insufficient funds check not involving the name of Rural Insurance Service and that the evidence was inadmissible and prejudicial because the subject was another unrelated crime. The state argues that evidence of unlawful conduct by appellant in doing business under an unregistered fictitious name was admissible under the exceptions concerning proof of common scheme or plan and to recount interrelated events necessary to prove a material fact in issue, citing State v. Chance, 719 S.W.2d 108 (Mo.App.1986), and State v. Franks, 685 S.W.2d 845 (Mo.App.1984).
Doing business in the state under a fictitious name without registering the name with the secretary of state is a misdemeanor. Section 417.230, RSMo 1986. Generally, evidence of crimes other than those charged is inadmissible in a criminal prosecution. State v. Bannister, 680 S.W.2d 141, 146-47 (Mo. banc 1984), cert. denied, 471 U.S. 1009, 105 S.Ct. 1879, 85 L.Ed.2d 170 (1985). Evidence, prejudicial to the defendant, of unrelated crimes should be received only when there is strict necessity. State v. Collins, 669 S.W.2d 933, 936 (Mo. banc 1984). The exceptions to the rule excluding evidence of other crimes permit the...
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