State v. Pennington

• Citation: 24 S.W.3d 185
• Parties: (Mo.App. W.D. 2000) State of Missouri, Respondent, v. Charles Pennington, Appellant. WD57262 0
• Decision Date: 02 May 2000
• Court: Court of Appeal of Missouri (US)

24 S.W.3d 185 (Mo.App. W.D. 2000)

State of Missouri, Respondent, v. Charles Pennington, Appellant.

WD57262

Missouri Court of Appeals Western District

05/02/2000

Appeal From: Circuit Court of Clay County, Hon. Michael J. Maloney

Counsel for Appellant: David Pettyjohn

Counsel for Respondent: John M. Morris and Karen Butler

Opinion Summary: Charles Pennington, Jr., appeals his conviction of first-degree robbery and armed criminal action. Pennington contends the trial court erred in allowing a witness to the charged offense testify that he saw Pennington steal from the same store on two previous occasion.

Division holds: The trial court abused its discretion by admitting evidence of Pennington's prior uncharged crimes because: (1) the evidence failed to fall under one of the recognized exceptions and, thus, lacked a legitimate tendency to directly establish Pennington's guilt of the charged offense; (2) the probative value of the evidence does not outweigh its prejudicial effect; and (3) there was no strict necessity for the admission of the other crimes evidence.

Ronald R. Holliger, Judge

Charles G. Pennington, Jr., appeals from his conviction following a jury trial for one count of the class A felony of first-degree robbery, section 569.020¹, and one count of the unclassified felony of armed criminal action, section 571.015. The trial court sentenced Pennington as a prior and persistent offender to concurrent sentences of 20 years imprisonment. On appeal, Pennington asserts the trial court erred in admitting evidence of prior uncharged crimes.

The judgment of the trial court is reversed and remanded for a new trial.

Factual and Procedural History

This Court reviews the facts in the light most favorable to the verdict. State v. Morrow, 968 S.W.2d 100, 106 (Mo. banc 1998). On June 28, 1998, Pennington parked his car at a gas pump island of a Quik Trip store located in Clay County. Pennington used a box knife to slit open the plastic "sock" covering a display of soda stored on the gas pump island. As Pennington loaded the soda into his vehicle, John Boch, an assistant manager of the Quik Trip, pulled into the store's parking lot. Boch witnessed Pennington stealing the soda and pulled his car up to Pennington's car to record the license plate number. Pennington then got back into his car and ran into Boch's car. Pennington put his car in reverse, trying to back away from Boch, and ran into a column supporting the canopy above the gas pumps. Boch then pulled his car forward to prevent Pennington from fleeing the scene. Pennington exited his vehicle and approached the passenger door of Boch's car. Boch testified that Pennington had a box knife in his hand, threatening Boch that "if you don't back off, I'm going to hurt you." Pennington then tried to open Boch's passenger door. Boch put his car in reverse, backing away from Pennington. As Boch reversed, he accidentally ran over Pennington's leg. Pennington hopped over to his car on one leg and drove away with eight to ten cases of soda in his car. Boch notified the police the following day and provided them with a description of Pennington and his license plate number. Boch also identified Pennington from a photo lineup and later identified him in court.

The jury found Pennington guilty of first-degree robbery and armed criminal action. The trial court sentenced Pennington to concurrent terms of 20 years for each offense. Pennington timely appealed.

The Trial Court Abused its Discretion By Admitting Evidence of Defendant's Uncharged Crimes

Pennington contends that the trial court erred by admitting evidence of Pennington's prior uncharged crimes. Specifically, Pennington claims the trial court erred by admitting evidence that Boch witnessed Pennington stealing beverages at the Quik Trip on two previous occasions. In sustaining a motion in limine prior to trial, the trial court ruled that evidence of Pennington's prior acts of stealing at the Quik Trip would not be admitted. During the trial, the judge decided to allow Boch to testify that he had witnessed Pennington stealing beverages from the store on two previous occasions in order to show "why certain things were done at the time" and "why cars were used the way they were." The court granted Pennington's trial counsel a continuing objection to such testimony. In response to a question by the prosecutor about his familiarity with Pennington, Boch testified that he had seen Pennington stealing beverages twice before at the Quik Trip. Boch also testified that he reported those previous incidents to the police, but the police failed to do anything about his reports. Pennington argues that the trial court improperly admitted the evidence of his uncharged crimes for the purpose of explaining the motive of witness Boch during the incident. He maintains that the admission of this evidence of uncharged crimes violated his constitutional right to be tried only for the crime charged and unfairly prejudiced him.

Initially, the state contends that Pennington failed to preserve his argument for appellate review because he did not include this claim in his motion for a new trial. Claims of error not presented in a motion for new trial are not preserved for appellate review. State v. Thurman, 887 S.W.2d 403, 409 (Mo. App. 1994); Rule 29.11(d). Pennington asserts that, under State v. Frey, when the trial judge granted his counsel a continuing objection to the uncharged crimes evidence after the judge overruled the motion in limine, the matter was preserved sua sponte for appellate review. 897 S.W.2d 25, 28-29 (Mo. App. 1995). In Frey, the defendant filed a motion in limine to exclude evidence of prior bad acts. There, as here, the court granted a "continuing objection." The majority (Lowenstein, J. dissenting) held that the objection to such evidence was properly preserved and, therefore, subject to a trial error standard of review rather than a plain error standard. Frey, however, is distinguishable and does not apply here. Pennington fails to recognize the necessity, despite a motion in limine, to preserve an objection to evidence at trial and to reassert the error in admission of evidence in the motion for new trial. The objection must be preserved at both stages. State v. Parkus, 753 S.W.2d 881, 886 (Mo. banc 1988). Frey does not indicate whether or not the objection was preserved in the motion for new trial.

The state herein does not contend that Pennington failed to preserve his objection at the time the evidence was introduced. We, therefore, look to the motion for new trial.

The assignment of error in the motion reads:

That error was compounded by the Court's initial ruling sustaining defendant's Motion in Limine on the Friday before trial. The Motion in Limine dealt with uncharged criminal acts, and was sustained. This court then overruled that motion on a request by the prosecutor on the morning of trial, thereby prejudicing defendant's trial strategy. Defendant and counsel were preparing the case as if that type of incident would not be entered into evidence. This Court's changing it's ruling on that motion, and then overruling of the later Motion in Limine regarding Waiving a Knife at Zink resulted in a fundamental shift in trial strategy that prejudiced defendant by necessitating changes in trial strategy and witness preparation. By overruling defendant's Motion in Limine on the morning of trial, after it had been sustained two days previous, the Court denied the defendant his right to due process as guaranteed by the United States Constitution, Amendment XIV, as well as the Missouri Constitution, Article I, Sections 10 and 18(a).

The error alleged, in contrast to the point on appeal, seems to be a claim that prejudice resulted from the court's reversal of its decision on the motion in limine and consequentially affected his trial strategy (emphasis added). Pennington relies on State v. Helm, 892 S.W.2d 743, 744 (Mo. App. 1994), for the proposition that a reference to an overruled motion in limine suffices to preserve the objection to the admission of other crimes evidence where the appellant later objected at trial. Pennington's reliance on State v. Helm, 892 S.W.2d 743, 744 (Mo. App. 1994) is also misplaced. In Helm, the court noted that a point on appeal in the brief referred to error in overruling a motion in limine. Despite the fact that a ruling on such a motion is an interlocutory, non-appealable order, the court found the matter was properly preserved because the objection was renewed at trial. Id. The court, therefore, treated the point on appeal as challenging the ruling at trial and not the ruling in limine. Helm does not apparently involve the issue of whether the allegation was preserved in the motion for new trial. The rules make these distinctions as to preservation during trial and post-trial in a new trial motion because they are important. One purpose in both instances is to provide the trial court with an opportunity to correct its own decisions. Other purposes include narrowing the issue on appeal and ensuring that no new or different theory is advanced on appeal. Nevertheless, we find that, on the facts and record of this case, the issue has been preserved for appeal. Rule 29.11(d) provides, inter alia "[w]here definite objections or requests were made during trial . . . a general statement in the motion of any allegations of error based thereon is sufficient."

We thus consider whether the allegation in Pennington's motion for new trial, although lacking the desired specificity, leaves any doubt as to the ruling intended for review. State v. Hayes, 442 S.W.2d 14, 16 (Mo. banc 1969). Here, very specific objections and a detailed record were made twice to the trial judge concerning the evidence that Pennington had allegedly stolen from the Quik Trip twice previously. Detailed grounds for the objection were provided to the trial court during its two considerations of the ...