State v. Mercado, 57053

• Decision Date: 03 April 1990
• Docket Number: No. 57053,57053
• Citation: 787 S.W.2d 848
• Parties: STATE of Missouri, Respondent, v. Dennis A. MERCADO, Appellant.
• Court: Missouri Court of Appeals

Page 848

787 S.W.2d 848

STATE of Missouri, Respondent, v. Dennis A. MERCADO, Appellant.

No. 57053.

Missouri Court of Appeals,

Eastern District,

Division Five.

April 3, 1990.

William L. Webster, Atty. Gen., Timothy W. Anderson, Asst. Atty. Gen., Jefferson City, for respondent.

Thomas R. Motley, Dist. Defender, Hannibal, for appellant.

SIMON, Chief Judge.

Appellant was charged by amended information with the class D felony of passing bad checks on June 21, 1988 in violation of § 570.120 RSMo 1986. Following his conviction by jury of this charge, he was sentenced as a prior offender to a term of five years imprisonment. On appeal, appellant contends that the trial court erred in: (1) receiving evidence of a separate crime; and (2) overruling appellant's pretrial request for a psychiatric examination. We affirm.

The sufficiency of the evidence to sustain appellant's conviction is not in dispute. Thus, only a brief recitation of the facts, viewed in the light most favorable to the jury verdict and disregarding contrary evidence, is necessary. State v. Picone, 760 S.W.2d 471, 473[1-4] (Mo.App.1988).

On May 12, 1989, appellant filed a pretrial motion requesting the appointment of a psychiatrist and a psychiatric examination. On May 19, 1989, a hearing was held on the pretrial motion during which appellant testified that he was suffering from depression and nervousness. Appellant stated that he had been examined at Fulton State Hospital thirteen years ago, but he could not recall the diagnosis. He also testified that, while currently incarcerated on a prior conviction at a correctional center in Illinois, he twice had seen a psychologist who had prescribed medication for "nerves and depression." On cross-examination, the following discussion was heard:

Q. Do you understand why it is we're here today, what the charges are against you?

A. Yeah.

Q. And you understand that those are insufficient funds checks?

A. Yes.

Q. And do you know what businesses that those were written to?

A. I don't recall right now.

Q. Okay. But you understand those were checks that were written in Hannibal?

A. Yes.

Q. And you understand that we're about to proceed with a jury trial-- A. Yeah.

Further, appellant admitted that he was able to communicate with and to understand the discussions he previously had with trial counsel concerning his upcoming trial.

Following appellant's testimony, the trial court denied the pretrial motion stating, "[a]t this time, I'll find there is no good cause to order an examination." In its docket sheet, the trial court noted that appellant's nervousness did not impair his ability to assist in his defense, that appellant was able to respond to questions, and that appellant exhibited a knowledge of the charge against him.

At trial, the state introduced evidence demonstrating that, on June 21, 1988, appellant tendered a check made out to J.C. Penney in the amount of $92.38 and a check made out to K-Mart in the amount of $134.63 in exchange for merchandise received. These stores are located in Hannibal, Missouri. Both checks were drawn on an account registered to a "Dennis Mercado" at the Centerre Bank in Springfield, Missouri. The employees of J.C. Penney and K-Mart who personally received the checks made an in-court identification of appellant.

After appellant's checks were returned for insufficient funds, both merchants notified appellant of the deficiency by certified mail sent to appellant's address printed on his checks. The letters were returned unclaimed to their respective stores, and no payment was received on either check.

A representative from appellant's bank testified that appellant's monthly bank statement issued on June 2, 1988 showed appellant's account to be overdrawn by $18.94. The next statement dated July 5, 1988 showed an overdraft of $854.94. The balance on June 21, 1988, the date on which the particular checks in question were written, indicated an overdraft of $998.94. Sufficient funds did not exist in appellant's account on June 21, 1988 to cover either the $92.38 check or the $134.63 check.

The trial court next entertained the testimony of Don Kirby and his daughter, Gail Kirby, over the continuous objection of trial counsel that such testimony constituted evidence of an uncharged crime and was prejudicial to appellant. Don Kirby testified that he operates several fireworks stands. At one of the stands, a customer tendered a check for $335.00 which was returned for insufficient funds. His attempts to contact the customer were to no avail, and he never received payment on the check.

Gail Kirby testified that she was working at one of her father's fireworks stands as a cashier in the summer of 1988. On June 30, 1988, she accepted the above mentioned check in exchange for fireworks purchased. She made an in-court identification of appellant as the customer who had tendered the check.

Appellant presented no evidence on his behalf. After his conviction by jury and subsequent sentencing, this appeal followed.

In his first point, appellant contends that the trial court erred in receiving evidence of a separate crime because the prejudicial effect of this evidence outweighed its evidentiary value, thereby denying appellant his right to due process and equal protection under the United States and Missouri Constitution. The evidence about which appellant complains is the testimony of the Kirbys regarding the check appellant wrote on June 30, 1988 for $335.00; nine days after the crime occurred for which appellant was convicted.

As a general rule, evidence of other crimes is inadmissible. State v. Bannister, 680 S.W.2d 141, 146[13, 14] (Mo. banc 1984), cert denied, 471 U.S. 1009, 105 S.Ct. 1879, 85 L.Ed.2d 170 (1985). Exceptions to this general exclusionary rule exist, however, when the evidence of the other crime tends to establish: (1) motive; (2) intent; (3) the absence of mistake or accident; (4) 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 (5) the identity of the person charged with the commission of the crime on trial. State v. Merritt, 734 S.W.2d 926, 933 (Mo.App.1987); State v. Clay, 686 S.W.2d 516, 518[1, 2] (Mo.App.1985). These exceptions permit the introduction of evidence for some purpose other than to show a greater likelihood that appellant, by virtue of his criminal nature as evidenced by proof of another crime, committed the crime currently charged. If the evidence falls within one of these recognized exceptions, it is admissible, and the determination of whether the relevance of the evidence outweighs its prejudicial effect lies within the sound discretion of the trial court. Bannister, 680 S.W.2d at 147[13, 14]. As stated in State v. Boley, 565 S.W.2d 828, 830[1, 2] (Mo.App.1978):

The "acid" test for determining whether evidence of other crimes falls within any of the recognized exceptions is its logical relevancy to the particular excepted purpose or purposes for which it is sought to be introduced, and if it reasonably tends to prove a material fact in issue it is not to be rejected merely because it...