State v. McIntyre

• Decision Date: 30 June 1987
• Docket Number: No. 51914,51914
• Citation: 735 S.W.2d 111
• Parties: STATE of Missouri, Respondent, v. Terry D. McINTYRE, Appellant.
• Court: Missouri Court of Appeals

Page 111

735 S.W.2d 111

STATE of Missouri, Respondent, v. Terry D. McINTYRE, Appellant.

No. 51914.

Missouri Court of Appeals,

Eastern District,

Division One.

June 30, 1987.

Motion for Rehearing and/or Transfer Denied Aug. 6, 1987.

Application to Transfer Denied Sept. 15, 1987.

Holly G. Simons, St. Louis, for appellant.

William L. Webster, Atty. Gen., Byrona J. Kincanon, Asst. Atty. Gen., Jefferson City, for respondent.

SATZ, Presiding Judge.

Defendant Terry D. McIntyre was convicted by a jury of tampering in the first degree, § 569.080, RSMo. 1986, and was sentenced as a persistent offender to ten years imprisonment. Defendant appeals. We affirm.

On November 22, 1985, defendant went to Kirkwood Mitsubishi and asked to test drive a Mitsubishi Galant. Defendant was left alone in the showroom for approximately two minutes while the salesman went to get the keys to the Galant. During this time, defendant was looking at the interior of a car on the showroom floor. This car had its keys in its ignition, and those keys were similar to the keys to the Galant.

After defendant test drove the Galant, he gave the salesman a set of Mitsubishi keys. The salesman placed the keys on a board where they were normally kept. Shortly thereafter, the salesman discovered the Galant was missing and also discovered the keys on the board were to the showroom car defendant had been looking at, not the Galant. The salesman reported the missing Galant to the Kirkwood police.

Two days later, police saw defendant driving the Galant, which was listed on a "hot sheet" of stolen cars. After chasing the car for approximately eight blocks, police stopped the car and arrested defendant. Defendant testified at trial he had borrowed the car from a friend.

Defendant makes two arguments on appeal. Neither has merit. First, defendant argues it was error to allow the introduction of evidence showing defendant may have stolen the Galant. Defendant argues the prejudicial effect of this evidence outweighed its probative value. We disagree.

Generally, evidence of other crimes is inadmissible unless it has some legitimate tendency to establish defendant is guilty of the crime charged. State v. Shaw, 636 S.W.2d 667, 672 (Mo. banc 1982). Thus, this evidence may be admissible when it tends to establish motive, intent, the absence of mistake or accident, a common scheme or plan, or identity. State v. Trimble, 638 S.W.2d 726, 732 (Mo. banc 1982); State v. Caldwell, 695 S.W.2d 484, 486 (Mo.App.1985).

As an element of its case, the State was required to prove defendant knew he was operating the car without the consent of the owner. The evidence linking defendant with the theft of the car tended to establish this knowledge on the part of defendant and thus was relevant. See, e.g. State v. Remspecher, 542 S.W.2d 24, 25 (Mo.App.1976). The key question is whether the relevancy of this evidence is outweighed by its possible prejudicial effect. Caldwell, supra at 484. The decision whether the potentially prejudicial effect of evidence outweighs its probative value is within the sound discretion of the trial court. Shaw, supra at 672. The trial court here properly exercised its discretion in admitting the evidence.

Defendant also argues the trial court erred in rejecting his proffered instruction on the use of prior convictions to impeach his testimony. The 3.00 series of MAI-CR2d has two instructions relating to the use of prior convictions for impeachment: 3.56 entitled "Impeachment of a Witness Other Than Defendant by Prior Offenses" and 3.58 entitled "Impeachment of Defendant by Conviction of 'Unrelated Crimes' Shown Solely for the Purpose of Impeachment". Defendant requested the trial court use MAI-CR2d 3.56 to instruct the jury on the prosecutor's use of prior convictions to impeach defe...