State v. Rehberg, WD

• Decision Date: 05 December 1995
• Docket Number: No. WD,WD
• Citation: 919 S.W.2d 543
• Parties: STATE of Missouri (Respondent), v. Michael REHBERG (Appellant). 50759.
• Court: Missouri Court of Appeals

Page 543

919 S.W.2d 543

STATE of Missouri (Respondent), v. Michael REHBERG (Appellant).

No. WD 50759.

Missouri Court of Appeals Western District.

Dec. 5, 1995 As Modified on the Court's Own Motion Jan. 30, 1996 Respondent's Motion to Modify Opinion Denied Jan. 30, 1996.

Michael J. Gunter, Kansas City, George E. Becker, Chicago, for Appellant.

Philip M. Koppe, Asst. Attorney General, Kansas City, for respondent.

Before FENNER, C.J., P.J., and ULRICH and SMITH, JJ.

SMITH, Judge.

After a court-tried case, appellant was convicted of the Class C felony of stealing in violation of § 570.030, R.S.Mo., 1994. The trial court sentenced him to four years in the Missouri Department of Corrections. Appellant appealed his conviction claiming: (1) the trial court erred in admitting evidence of uncharged crimes; (2) the trial court erred in admitting physical evidence without proper authentication; and, (3) the trial court erred in overruling his motion for acquittal in that the evidence was insufficient to prove appellant guilty beyond a reasonable doubt. We affirm.

I. Facts

Kevin Strain, a loss prevention agent for Builders Square located at 14221 East 40 Highway, Kansas City, Missouri, testified he observed appellant in the store on November 2, 1993, pushing a shopping cart with an opened lamp box in it. Strain observed appellant take the lamp from the box and place it on a shelf next to two other lamps. Appellant placed the opened box on a pallet of rock salt in the plumbing aisle. He then placed various plumbing fixtures in the box, resealed it with tape and placed it back on the shelf, after which he exited the store.

Strain testified that upon exiting the store he saw appellant get into a four-door, white Grand Am, after which the vehicle moved to another location in the parking lot. The driver of the vehicle entered the store and proceeded immediately to the aisle where the box had been placed by appellant. The box was retrieved by him and taken to a register where he paid for the value of the lamp only.

As the driver of the vehicle left the store he was stopped by Strain and placed in the custody of a store manager. Strain then approached the white Grand Am by which appellant was standing and asked him to return to the store. The police were called. Before the police arrived, Strain opened the box and found four massage sprayers valued at $179.98, five Moen faucets valued at $795.00, and two paint sprayers valued at $294.00 for a total retail value of $1,267.98. When the police arrived, both men were arrested and taken into custody. The box and the items taken were returned to the store after being inventoried by the police.

Clifford Means, who was the Dallas-Fort Worth district loss control manager for K-Mart Corporation in September of 1992 and who at the time of his testimony was the regional loss control manager, testified that on September 29, 1992, he participated in a meeting in Houston, Texas, with appellant and Greg Saputo, Means' direct supervisor. At the meeting, appellant told them of a scam to obtain merchandise and money from K-Mart Corporation and that the purpose for telling them was so he could become a consultant for K-Mart. Appellant identified K-Mart, Builders Square, Venture, Service Merchandise, and Toys-R-Us as retailers he targeted. Appellant claimed his favorite store to steal merchandise from was Builders Square and that he operated in Houston, Chicago, Cincinnati, Indianapolis, Kansas City, and Independence.

Means testified that appellant told them that he would enter a store; remove a lamp from a box; and, fill the box with faucets, fishing reels, and other easily stolen merchandise. Appellant would fill the box while an accomplice waited in a car outside the store and that either he or the accomplice would then purchase the lamp box.

Appellant stated he had been using the scam for four years and had made $1,000,000 exchanging the stolen items at K-Mart for cash. Finally, the witness testified that appellant accompanied them to a local Builders Square and demonstrated how he used the lamp box in the scam.

The State filed a motion for a pretrial ruling concerning the admissibility of the testimony of Means, which was sustained by the Court over the objection of appellant. The motion was reargued just prior to the commencement of trial and again denied. At the close of the evidence, appellant moved for a judgment of acquittal which was overruled. Appellant offered no evidence and renewed his motion for judgment of acquittal which was overruled. Appellant was found guilty of the Class C felony of stealing.

Appellant filed a timely motion for judgment of acquittal or in the alternative for a new trial which were denied. A judgment of conviction was entered and appellant sentenced to four years in the Missouri Department of Corrections. A timely appeal was taken by appellant.

II. Compliance with Rule 30.06(d)

The State asserts that appellant failed to comply with Rule 30.06(d) in that each of his points relied on in his brief fails to set forth "wherein and why" the actions or rulings of the trial court were erroneous. As a result, the State argues that appellate review of the points raised on appeal should be denied except for plain error review. Rule 30.20.

It is true that the court may deny appellate review for failure to comply with 30.06(d). State v. Nenninger, 872 S.W.2d 589 (Mo.App.1994), cert. denied, 513 U.S. 1022, 115 S.Ct. 589, 130 L.Ed.2d 503 (1994). However, in criminal cases, when appellant's arguments make clear the grounds for alleged error, it is preferable to decide cases on the merits to avoid punishing appellant for the shortcomings of appellate counsel. State v. Sloan, 756 S.W.2d 503, 505(2) (Mo. banc 1988), cert. denied, 489 U.S. 1040, 109 S.Ct. 1174, 103 L.Ed.2d 236 (1989); State v. Tivis, 884 S.W.2d 28, 29(2) (Mo.App.1994).

Although standing alone appellant's points relied upon are inadequate and do not comply with Rule 30.06(d), his arguments do clarify the grounds for alleged errors sufficiently to allow appellate review. However, the court would caution appellate counsel to be more mindful of the requirements of Rule 30.06(d) in the future and not rely on the court to allow appellate review on the merits regardless of the degree of noncompliance with the rule.

III. Points on Appeal

A. Point I--Testimony concerning uncharged crimes was admissible.

For his first point appellant claims that the trial court committed prejudicial error in admitting his statements made to Clifford Means in that such evidence was evidence of uncharged crimes which was not logically or legally relevant to the issue of his guilt.

The general rule is that the admission of evidence of uncharged misconduct or crimes is inadmissible to show the propensity of a defendant to commit the crime with which he is charged. State v. Bernard, 849 S.W.2d 10, 13 (Mo. banc 1993). However, "(e)vidence of prior misconduct of the defendant, although not admissible to show criminal propensity, is admissible if the evidence is logically relevant, in that it has some legitimate tendency to establish directly the accused's guilt of the charges for which he is on trial, State v. Sladek, 835 S.W.2d 308, 311 [Mo.1992] (quoting State v. Reese , 274 S.W.2d 304, 307 (Mo. banc 1954)), and if the evidence is legally relevant, that its probative value outweighs its prejudicial effect. State v. Mallett, 732 S.W.2d 527, 534 (Mo. banc), cert. denied, 484 U.S. 933, 108 S.Ct. 309, 98 L.Ed.2d 267 (1987)." Bernard, 849 S.W.2d at 13.

When discussing logical relevancy, the Supreme Court in Bernard refers to recognized "exceptions" to the general rule against admitting evidence of uncharged misconduct to show propensity. However, the court clearly points out that those "exceptions" do not allow the admission of evidence of uncharged conduct to show the propensity to commit the crime charged, but is admissible because such evidence has "some legitimate tendency to establish directly the accused's guilt". State v. Bernard, 849 S.W.2d at 13. Inasmuch as the utilization of the "so-called" exceptions to show criminal propensity is prohibited by the rule, the purported exceptions to the general rule are not exceptions at all, but logically relevant bases for allowing admission of evidence to show something other than the propensity to commit a crime. If the rule was restated to provide that evidence of uncharged crimes is generally not admissible for any purpose, the term exception would be accurate in reference to the admission of such evidence to show something other than propensity, i.e., motive, intent, etc.

Evidence of uncharged crimes has been held to be logically and legally relevant and, therefore, admissible to show (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. Id. at 13; Sladek, 835 S.W.2d at 311. This list is not all inclusive or exhaustive. Bernard, 849 S.W.2d at 13. The Bernard court also recognized a sixth basis for admission of evidence of uncharged crimes--the signature modus operandi basis.

The State contends that the testimony of Means was admissible under all six bases recognized in Bernard. On the facts of this case, we agree that Clifford Means' testimony was admissible on the grounds of motive intent, and identity and accordingly decline to decide whether the other three bases apply.

Appellant claimed at trial and now on appeal that the eyewitness to the crime, Clifford Means, was mistaken as to the identity of appellant as the person in Builders Square on the day in question. Appellant also claims that even if he did commit the acts testified to by Means that such acts did not constitute a crime because he at no time "appropriated" the...