State v. Pride
| Decision Date | 30 June 1999 |
| Citation | 1 S.W.3d 494 |
| Parties | (Mo.App. W.D. 1999) State of Missouri, Respondent, v. Farrel Gene Pride, Appellant. WD 54962 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Boone County, Hon. Gene C. Hamilton
Opinion Summary: Appellant Farrel Gene Pride appeals his convictions for two counts of forgery and his sentence to two consecutive four-year terms of imprisonment. Mr. Pride argues that his convictions should be set aside because the trial court erred: (1) in denying his motion for judgment of acquittal because of insufficient evidence of his criminal intent; (2) in entering judgment against him based on Counts I and II because the indictments on those counts were allegedly insufficient; (3) in entering judgment against him on Counts I and II because he was unable to prepare a defense and was prejudiced because the indictments were insufficient; (4) in submitting Instructions Nos. 6 and 8 to the jury because both instructions failed to submit all the elements of forgery; (5) in admitting into evidence a copy of a cashier's check which was allegedly unlawfully obtained by the State; (6) in admitting into evidence the testimony of Patty Wapshott in violation of the attorney-client privilege; (7) in denying a request for continuance based upon his religious beliefs; (8) in admitting testimony regarding other instances of alleged criminal conduct; and (9) in admitting testimony from a State's witness who testified pursuant to an agreement with the State that the State would not to prosecute him in exchange for his testimony.
Division Two holds: The trial court did not err in denying Defendant's motion for acquittal because the jury had before it sufficient evidence from which it could find the requisite fraudulent intent. Regardless of whether or not Defendant transferred documents pertaining to future events, the actual writings were themselves altered documents which he knew contained misrepresentations at the time he transferred them. From this evidence, the jury could infer that Defendant had the intent to commit fraud.
It was not plain error for the trial court to indict Defendant based on the pattern MACH-CR indictment forms. Because Defendant raised the issue concerning the validity of his indictment for the first time on appeal, the review is limited to plain error. An indictment rises to the level of plain error if it does not charge the offense of which the defendant was convicted, or the rights of the defendant to prepare a defense and plead former jeopardy in the event of acquittal are prejudiced. Defendant failed to identify any aspect of his defense that was in fact hindered by the indictment, and because Defendant was clearly indicted under Section 570.090.1(4), he could not again be prosecuted under that section so that no double jeopardy concern arises.
It was not plain error for the trial court to instruct the jury based on the MAI-CR pattern instructions for forgery. Here, Defendant failed to raise an objection to the instructions at trial. Thus, only plain error review is available. Instructional error only rises to the level of plain error when it is established that the judge so misdirected or failed to instruct the jury that it is apparent that the instructional error affected the jury's verdict. Here, the evidence before the jury was such that they could not have been confused or misdirected by the alleged error in the instructions.
The trial court did not err in admitted a copy of the cashier's check that was obtained from a non-party witness pursuant to a subpoena duces tecum. The subpoena was properly issued and the record is devoid of other evidence of bad faith in the prosecutor's use of the subpoena. Moreover, Defendant has no right to challenge the admission of the copy of the check obtained from the third party, because he has no privacy rights in preventing the recovery of the fax simply because he was the one who originally sent the fax.
The trial court did not err in admitting the testimony given by Patty Wapshott, a paralegal/secretary for Defendant's former attorney. The attorney-client privilege does not apply here because Defendant did not have an attorney-client relationship with Ms. Wapshott's employer at the time of the conversation, and at the time of the conversation Defendant knew that his attorney-client relationship with Ms. Wapshott's employer had ended and he had already hired a new attorney.
The trial court did not err in holding court on Saturday, even though Defendant established that he was a Seventh Day Adventist and, as such, observed his Sabbath from sundown Friday to sundown Saturday. The judge carefully considered Defendant's concerns and determined to nonetheless hold court on Saturday because of Defendant's delay in raising the issue and because it was the only time he could hold court in light of other scheduled cases. While the judge could have reached a different conclusion, he did not abuse his discretion in failing to do so, and Defendant fails to demonstrate any prejudice from the denial.
The trial court did not err in admitting testimony from a witness for the State that on two prior occasions Defendant had falsified insurance certificates that he provided to customers. Evidence of other crimes or bad acts is admissible at trial if it is logically and legally relevant and tends to establish motive, intent, absence of mistake or accident, or a common plan or scheme. Based on the facts of this case, the evidence of separate falsified insurance certificates had a legitimate tendency to establish Defendant's guilt of the crimes charged.
The trial court did not err in admitting testimony of a witness who was promised leniency in return for his testimony. Here, Defendant failed to object to the witness' testimony at trial, and the failure to timely object to the admissibility of evidence waives any right to challenge the admissibility of the evidence on appeal. Further, no cases are cited which support Defendant's argument that such agreements are against public policy, and the subsequent enactment of Section 491.205, which authorizes the granting of immunity to prosecution witnesses in criminal proceedings, undercuts these very arguments.
The appellant, Farrel Gene Pride, appeals his convictions for two counts of forgery and his sentence to two consecutive four-year terms of imprisonment. Mr. Pride argues that his convictions should be set aside because the trial court erred: (1) in denying his motion for judgment of acquittal because of insufficient evidence of his criminal intent; (2) in entering judgment against him based on Counts I and II because the indictments on those counts were allegedly insufficient; (3) in entering judgment against him on Counts I and II because he was unable to prepare a defense and was prejudiced because the indictments allegedly mixed the elements of two separate offenses and did not charge him with the offense of forgery; (4) in submitting Instructions Nos. 6 and 8 to the jury because both instructions failed to submit all the elements of forgery; (5) in admitting into evidence a copy of a cashier's check which was allegedly unlawfully obtained by the State; (6) in admitting into evidence the testimony of Patty Wapshott in violation of the attorney-client privilege; (7) in denying a request for continuance based upon his religious beliefs; (8) in admitting testimony regarding other instances of alleged criminal conduct; and (9) in admitting testimony from a State's witness who testified pursuant to an agreement with the State that the State agreed not to prosecute him in exchange for his testimony. Finding no merit to any of the claims, we affirm.
Mr. Pride operated a company called Midwest Environmental Technologies (MET). In February 1997, Mr. Pride was being prosecuted on a charge of property damage in the first degree in Boone County, Missouri, for his alleged contamination of the City of Columbia's water treatment plant while his business, MET, was working on a contract project with the city. Mr. Pride was represented in this matter by an attorney, Milt Harper.
On February 10, 1997, Mr. Harper filed a pretrial motion to test the water treatment plant's soil and to obtain water samples to be used in investigating possible contaminants. The motion was granted on the condition that the parties agree to the terms and conditions of the testing. One of the requirements was that Mr. Pride would provide the City of Columbia with proof of adequate insurance prior to the testing, which was scheduled for March 25, 1997. Mr. Pride agreed to have proof of commercial liability insurance for MET by March 21, 1997.
On March 21, 1997, Mr. Pride faxed a document to his attorney, Mr. Harper. James Kjar, an associate in Mr. Harper's office, received the fax. The fax included a cover sheet and a document which was a certificate of insurance. The certificate purported to be issued by Insurance Advisors of St. Louis (IASL), and contained effective dates of "5/27/95 through 5/27/96." Beneath these dates, however, was a typewritten notation which stated, "Reinstated through 5/27/97." Mr. Kjar did not read the cover sheet that was faxed with the document, and instead took the copy of the insurance certificate to Mr. Harper, who instructed Mr. Kjar to take the certificate to the Boone County Prosecutor's Office. Mr. Pride testified he did not know the copy of the insurance certificate would be sent to the Prosecuting Attorney unaccompanied by the qualifying cover sheet, which Mr. Kjar did not read. Mr. Pride later produced a copy of a cover sheet which he claimed was the one originally faxed with the certificate of insurance. It stated,
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