State v. Williams, 16386

• Decision Date: 19 February 1991
• Docket Number: No. 16386,16386
• Citation: State v. Williams, 804 S.W.2d 408 (Mo. App. 1991)
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Michael Adam WILLIAMS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 408

804 S.W.2d 408

STATE of Missouri, Plaintiff-Respondent, v.Michael Adam WILLIAMS, Defendant-Appellant.

No. 16386.

Missouri Court of Appeals,

Southern District,

Division Two.

Feb. 19, 1991.

Raymond L. Legg, Columbia, for defendant-appellant.

William L. Webster, Atty. Gen., Millie Aulbur, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

FLANIGAN, Chief Judge.

A jury found defendantMichael Williams guilty of attempt to commit robbery in the first degree, § 564.011, ¹ and he was sentenced, as a prior offender, to a term of imprisonment of 15 years.Defendant appeals.

The one-count information, on which the conviction is based, charged that the defendant committed the offense on December 16, 1988, in Greene County by threatening to shoot Serena Greer if she did not give him money out of the cash register at George's Steak House, 339 South Glenstone in Springfield.Defendant does not challenge the sufficiency of the information or the evidence adduced in support of it.

The state's evidence showed that during the late afternoon and evening of December 16, 1988, defendant committed the charged offense and five other offenses.All six offenses were committed in Springfield, but only the charged offense was committed at George's Steak House.Defendant concedes that evidence of two of the additional five offenses was admissible.Those two offenses involved the robbery of Irene Davis"a little after 6 p.m." at the Village Shoppe, and the attempted robbery of Michael Owen between 10:30 and 11 p.m. at Clark Gas Station.Defendant's brief says, "Defendant recognizes that the evidence of the robbery of the Village Shoppe and attempted robbery of the Clark Gas Station were admissible to establish a common scheme or plan and identity of defendant."

Defendant contends that the trial court erred in receiving into evidence, over defendant's timely objection, evidence "concerning crimes that occurred at Berman's Leather Shop, Spencer Gifts and Famous Barr ... in that the evidence was irrelevant to the crime defendant was charged with and was introduced by the state solely for the purpose of inflaming the passions of the jury by portraying defendant as a 'one man crime wave.' "This court agrees.

During the course of defendant's robbery of Irene Davis at the Village Shoppe, defendant took a purse which contained several of her credit cards.The state's evidence showed that, within an hour following the robbery of Mrs. Davis, defendant used the stolen credit cards to make purchases at three different stores at Battlefield Mall.

Fraudulent use of a credit card is an offense, § 570.130, which may be a class A misdemeanor or a class D felony, depending upon the value of the property or services obtained.By the fraudulent use of a credit card on each occasion, defendant bought a coat from Evonne Hawkins at Berman's, two gold chains from Connie Meyer and Shannon Colley at Spencer Gifts, and a ring and a bracelet from Judy Gaskill at Famous Barr.These collateral offenses were class D felonies.Hawkins, Meyer, Colley and Gaskill all testified as witnesses for the state during its case in chief.

"[P]roof of the commission of separate and distinct crimes by the defendant is not admissible, unless such proof has a legitimate tendency to establish defendant's guilt of the charge for which he is on trial."State v. Reed, 447 S.W.2d 533, 534(Mo.1969)." 'Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it 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 the proof of one tends to establish the other; (5) the identity of the person charged with the commission of the crime on trial.'The test of whether evidence of other distinct crimes falls within any of these exceptions has been aptly stated as follows: 'The acid test is its logical relevancy to the particular excepted purpose or purposes for which it is sought to be introduced.If it is logically pertinent in that it reasonably tends to prove a material fact in issue, it is not to be rejected merely because it incidentally proves the defendant guilty of another crime.' "Id. at 534.

"Evidence of other crimes should be admitted under one of these exceptions only when the prejudicial effect of the evidence is outweighed by its probative value."State v. Mallett, 732 S.W.2d 527, 534(Mo. banc 1987)."It certainly is not enough to show that the person on trial committed one or more other crimes of the same general nature in the vicinity of the place where he is charged with committing the crime for which he is on trial, and that he committed such other crime or crimes at approximately the same time."State v. Buxton, 22 S.W.2d 635, 636(Mo.1929).Evidence of other crimes "is highly prejudicial and should be received only when there is strict necessity."State v. Collins, 669 S.W.2d 933, 936(Mo. banc 1984)."The trial court is possessed with substantial discretion in determining the extent to which such evidence may prejudice the defendant."...